Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2688/02

APPLICANT: Liam McLaughlin

RESPONDENT: Western Education & Library Board

DECISION

The unanimous decision of the tribunal is that the application is dismissed.

Appearances:

The applicant was represented by Ms S. Gill.

The respondent was represented by Mr A. Colmer, Barrister-at-Law, instructed by

Mr M. Brown, Chief Legal Adviser to the Education & Library Boards Legal Service.

1. On 28 November 2002 the applicant submitted an application to the Industrial Tribunal claiming that he had been constructively dismissed by the respondent. At paragraph 13 of that application the applicant set out the matters which he was relying on in support of his application. These were –

"I have been involved in an ongoing grievance with the respondent. As part of the grievance procedure I was to attend an independent hearing. The respondent prepared a submission which I received on 4 September 2002.

Contained in their submission was a letter dated 11 July 2000 from their Head of Human Resources, Ms Stella Cherry. I have never seen this letter before. In this letter Ms Cherry is arranging an appointment between myself and the WELB's physician. In this letter Ms Cherry makes assertions about me which are untrue and deliberately run contrary to the information contained in my personnel file.

At my request a copy of my personnel file was sent to me on 13 September 2000. It should have contained a copy of Ms Cherry's letter to the Board physician. It did not, this letter was withheld from me.

In October 2002 the above Labour Relations Agency hearing found the WELB to be negligent in their handling of my personnel file. When Ms Cherry wrote to the Board's physician, she made an obvious attempt to misdirect him. This was undermined and breached the implied term of trust and confidence which must exist between employer and employee. In all the circumstances, I therefore feel I have been constructively dismissed".

2. The claim to the Industrial Tribunal was therefore stated to arise out of Ms Cherry's letter and the failure of the respondent to furnish the applicant with a copy of it at an appropriate time. In replies to a notice for particulars the applicant expanded on this application to allege that issues arising during the whole course of his employment since 1996 gave rise to grounds to add to his claim of constructive dismissal. These allegations can be grouped into seven areas which are set out below as follows:-

(a) Allegations in 1996 and 1997 – this relates to the applicant's employment in

Waterside Library where he alleges that he was harassed by Mrs Fulton. The applicant was subsequently transferred from Waterside and he made allegations regarding this transfer.

(b) Allegations of harassment against staff in Central Library where the applicant was based permanently after his transfer from Waterside. These allegations were against -

(i) Josephine McBride in 1999.

(ii) Patricia Ward in 1999 including her manner of handling documents in personnel file.

(c) The applicant alleged that the respondents failed to deal with his allegations of harassment appropriately because it was dealt with under the harassment policy and not be way of the grievance procedure until a ruling of an independent panel on 25 June 2001 found that the applicant was entitled to have his claim dealt with under the grievance procedure.

(d) The respondent withheld from the applicant his statutory sick pay because of his failure to attend an independent medical examination in July 2000. The applicant contended that this was inappropriate.

(e) The applicant alleged that there were errors in the calculation of his sick absence record which went pointed to him were not corrected.

(f) The applicant made allegations about the failure of trade union officials to represent him.

(g) The applicant had two sick absence review meetings and he contended that these were not carried out appropriately in that the procedures were not followed. These took place in October 1997 and June 2000.

3. The applicant's application therefore asserted that he had been constructively dismissed. The legal provisions relating to this claim are contained in Article 127 of the Employment Rights (Northern Ireland) Order 1996 which provides as follows:-

(i) For the purposes of this part an employee is dismissed by his employer if …

(c) "The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct".

4. The tribunal heard detailed evidence from the parties in respect of all the allegations made by the applicant.

In respect of these allegations the tribunal made the following findings of fact:-

(a) The Waterside Library allegations.

(i) The applicant made allegations against Mrs Philson of harassment.

The tribunal found that these allegations were withdrawn by the applicant although this has subsequently been denied by him. We found that Ms Ward and her superior considered that a transfer of the applicant was the most appropriate action. This transfer was with the applicant's agreement. The tribunal did not find that the failure to place details of his transfer on the applicant's personnel file was the result of any intentional action by Ms Ward to act against the applicant's interests and was not contrary to the procedures usually adopted in transfers. The tribunal also found that these allegations could not be relied upon by the applicant as forming a case of constructive dismissal as they took place in 1996 and the applicant did not act upon them until he was making a case against the respondent at a much later date when the respondent investigated the allegations against Mrs Philson. We were satisfied on the evidence before us that at the relevant time of the transfer from the Waterside Branch the applicant had withdrawn all allegations made previously.

(b) (i) Allegations against Joseph McBride.

These arose out of allegations relating to work instructions given to the applicant by Ms McBride and that on Thursday night she reads the paper, does the crossword and leaves him to do most of the work. The tribunal found having heard the evidence of both the applicant and Ms McBride that we did not accept that any differences of opinion which they had amounted to harassment of the applicant by Ms McBride. We found that the allegations were fully investigated internally and considered by both an internal appeal panel who took into account whether there was any harassment of the applicant. We concurred with the conclusion of the internal appeal panel who reported on 3 October 2001 that the allegations did not amount to harassment. We found that the applicant, as he did throughout the case, was trying to build a picture of allegations which were not raised at the relevant times.

(b) (ii) Allegations against Patricia Ward.

The tribunal found, firstly, in relation to Ms Ward's actions when the applicant was employed at Waterside Branch, that these allegations were wholly unfounded. Later allegations referred to Ms Ward's input into a stage one review when Ms Ward was asked to give her opinion of the applicant's work record, skills and attendance. The tribunal found that Ms Ward gave a fair opinion of the applicant which as his superior officer she was entirely entitled to do. We did not accept that any of Ms Ward's actions amounted to any form of harassment which would either entitle the applicant to consider that he had been unfairly constructively dismissed.

(c) The grievance and harassment procedures.

The applicant made allegations of harassment against, in particular Ms McBride and Patricia Ward and it was decided by the respondent because of the nature of the allegations made that it was appropriate that the matter should be dealt with through the code of practice on measures to combat harassment in the workplace. The applicant insisted that he wished to have matters dealt with under the grievance procedure which allowed for an external appeal hearing. The matter was ultimately referred to an independent arbitration panel which found that the applicant was entitled to have his claim dealt with under the grievance procedure. This decision was dated 25 June 2001. As a result of that determination the allegations were dealt with under the grievance procedure starting with a stage three hearing as suggested by the panel. The tribunal found that while it was unfortunate that difficulties in resolving this complex matter were compounded by a dispute over the appropriate resolution procedures, the matter was resolved and the respondent implemented the decision of the arbitration panel. The tribunal found that there was no merit in an ongoing complaint from the applicant regarding the manner relating to a termination of his employment which took place over one year later.

(d) Withholding of the applicant's statutory sick pay.

This arose out of the applicant's failure to attend a medical examination in July 2000. The tribunal noted that in the circumstances of the case the respondent was entitled to require the applicant to attend the medical examination. The tribunal noted that as a result of the proposed resolution at stage three the applicant was to be repaid the statutory sick pay withheld for the period 20 July 2000 to 29 September 2000. This decision was taken on 31 October 2001. Therefore, the tribunal did not find that it was necessary to consider the validity or otherwise of stopping the statutory sick pay payments to the applicant as the payments were re-instated one year before the termination of his employment.

(e) Errors in calculation of sick absence.

Although the applicant alleged that there were errors in the calculations of his sick absence record it was not disputed by him that he had significant work absences during the period of his employment. It is perhaps surprising that the calculation of the applicant's absence were not accurate however the tribunal do not find that this gave rise to any claim against the respondent which the applicant wished to present. The respondent was entitled to adopt appropriate steps to deal with the sick absence and the tribunal found that the applicant was treated extremely lieniently over a long period of time. We found no merit in the argument which he presented in this regard.

(f) Failure of trade union representation.

This claim has no relevance to the tribunal as any dispute which the applicant has in this regard should be addressed directly to his trade union.

(g) Allegations relating to handling of sick absence meetings.

The tribunal heard evidence in relation to meetings which took place on 23 October 1997 and 19 June 2000. We were entirely satisfied that these meetings were held in an appropriate way. The first resulted in an informal warning about the applicant's level of sick absence. The second was handled sensitively and having heard evidence from Mr Farrell who conducted the interview we were satisfied that he accurately recorded what took place at the meeting although this was disputed by the applicant. We found no merit in the allegations raised in relation to these meetings or the procedures adopted by the respondent.

5. The tribunal also considered the primary allegation as set out in the originating application. The tribunal considered whether Ms Cherry's letter and the conduct of the respondent in relation to it entitled the applicant to terminate his employment. The tribunal considered the contents of the letter and found that the comments contained in it were entirely appropriate. We found that the purpose of the letter was to give Doctor Linton some background into the nature of the applicant's illness. The tribunal were unable to hear direct evidence from Ms Cherry who has since retired, however, we took into account the evidence at meetings which the applicant had, on a number of occasions, and notes of those meetings with Ms Ward, Ms McGarrity and Mr Farrell all of whom gave evidence attended. After considering this evidence the tribunal found Ms Cherry was entitled to make the comments which she did in the letter to Doctor Linton. It was clear that the applicant's behaviour was giving rise for concern both in terms of his attitude to his work and his colleagues and his level of absence. We found that Ms Cherry was entitled to require the applicant to attend a medical examination and to give Doctor Linton what she considered to be relevant background information. We found there was no breach of contract in relation to the fact that the letter was sent to Doctor Linton or in relation to its contents.
6. The applicant alleged that when he received his personnel file in September 2000 it did not contain Ms Cherry's letter and he alleged that it was therefore withheld from him and that this amounted to a breach of trust and confidence. The tribunal considered this argument. We were not satisfied that the applicant had established that there was any cover up of the letter. The applicant was aware that he had been invited to attend a medical examination even though he refused to do so. He was not prevented from progressing his claim throughout the relevant period. When the grievance procedure was evoked full hearings were conducted where all relevant information could be given. Finally, the tribunal found that we did not accept that the applicant resigned when he received the copy of Ms Cherry's letter in September 2002. The applicant did not resign until he received the result of the independent panel's deliberation which found that the appeal should be rejected. This decision was given on 7 October 2002 and the applicant resigned in November 2002.
7. As a result of these findings of fact the tribunal was satisfied that there was no breach of contract on the part of the respondent. We found that the respondent attempted to deal with all the allegations made in a sympathetic manner. Certainly, the applicant's line managers at all times attempted to deal with both his work issues and absences in an informal way. It was unfortunate to say that in some ways the failure to comply strictly with set procedures in this case and to identify those procedures clearly may have caused matters to develop over a longer timescale than necessary. However, the tribunal found that the respondent did not attempt to deny the applicant access to any information and staff were motivated to resolve what was a very complex problem. The tribunal also found that the applicant made every attempt to elaborate on his case by denying matters which he had previously accepted and he was obstructive in his failure to provide written details of his allegations to the respondent. As stated above that the applicant had refused to attend a medical examination and as he was required to do under his contract of employment. The tribunal were further satisfied that the reason for the applicant's resignation was that the independent hearing had not found in his favour and had rejected his allegations. The tribunal were satisfied that there was no breach of contract by the respondent which would entitle the applicant to resign from his employment.

Chairman:

Date and place of hearing: 15 - 16 and 20 - 22 April 2004, Londonderry and

21 - 25 February 2005, Limavady.

Date decision recorded in register and issued to parties: