Industrial Tribunals Northern Ireland Decisions

 


Protector v Nortel Networks Ltd (constructive Dismissal) [2002] NIIT 2527_01 (6 November 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 2527/01

APPLICANT: Stephen Proctor

RESPONDENT: Nortel Networks Limited

DECISION

The unanimous decision of the Tribunal is that the applicant was not dismissed. The complaint of unfair dismissal is dismissed accordingly.

Appearances:

The applicant was represented by Mr Stockman, Barrister-at-Law, instructed by Magennis & Creighton, Solicitors.

The respondent was represented by Mr P Bloch of the Engineering Employers' Federation.

1. The reasons are given in summary form.
2. The applicant contended that he had been constructively dismissed in the circumstances set out in Article 127(1)(c) of the Employment Right (Northern Ireland) Order 1996. The respondent denied that the applicant had been constructively dismissed as alleged or at all and contended that the applicant had resigned from the respondent's employment in order to move to another post. The applicant and respondent called witnesses and supplied the Tribunal with a bundle of documentation.
3. The Tribunal examined all of the evidence carefully together with submissions made by the parties' representatives, the various authorities referred to, authorities taken into account by the Tribunal, and the relevant provisions of the Employment Rights (Northern Ireland) Order 1996.
4. The Tribunal found as follows:-

(i) The applicant was employed by the respondent from 20 January 1997 until 12 June 2001.

(ii) The applicant was based at the respondent's plant at Monkstown but volunteered to move to the Kilroot Plant prior to Christmas 1999. The Tribunal did not accept that an alleged incident in August 1998 involving a fellow employee had anything to do with events leading to his transfer to Kilroot or events occurring thereafter. It became apparent sometime after the applicant's transfer to Kilroot, that the plant was to be transferred to Kuehne and Nagel. The Transfer of Undertakings (Protection of Employment) Regulations 1981 applied to the proposed transfer and a 90 day consultation period involving Trade Union Representatives and relevant employees commenced in early April 2001. The applicant was a relevant employee for the purposes of transfer. The Tribunal accepts that the applicant had expressed a willingness to transfer to Kuehne and Nagel in early 2001 and that he had a concern about pension arrangements. He had also expressed a desire to return to the plant at Monkstown. The applicant however decided to seek alternative employment and succeeded in obtaining a job with the Police Authority which was to commence during week beginning 11 June 2001. The applicant tendered a letter of resignation to the respondent on Tuesday 5 June 2001 and the Tribunal accepts that the contents of this letter are consistent with the notes of the meeting held between representatives of the respondent and the applicant on 6 June 2001 and, taken together, constitute the reasons for the applicant's resignation. The Tribunal found no evidence to substantiate the applicant's allegation that the respondent had fundamentally breached his contract of employment.

5. The Tribunal is satisfied that the applicant did not terminate his contract in circumstances described in Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996 and therefore finds that the applicant resigned and was not dismissed within the meaning of Article 127 of the said Order.

Chairman:

Date and place of hearing: 23 May 2002, 16 September 2002 and 6 November 2002

Date decision recorded in register and issued to parties: