Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 537/04

CLAIMANT: Niki Molloy

RESPONDENT: Joyce Estate Agents Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed but there was a breach of her contract and it awards £115.00.

Appearances:

The claimant was represented by Mr K. Denvir of Counsel instructed by Campbell Stafford Solicitors.

The respondent was represented by Mr D. Kelly, Peninsula Business Services Limited.


Sources of Evidence

1. The tribunal heard evidence from the claimant and her witness Audrey Molloy and from Derek Harrison, Jayne Harrison, Leslie Johnston, Libby Clarke and Glen Holland for the respondent. The tribunal also received 17 bundles of agreed documents amounting to 216 pages and the Equality Commission's Monitoring Report No 14 A Profile of the Northern Ireland Workforce for 2003.

The Claim and Defence

2. The claimant claimed unfair constructive dismissal and breach of contract. The respondent denied that the claimant had been constructively dismissed or that it had breached the claimant's contract of employment.
   

The Issues

3. (a) Was the claimant unfairly constructively dismissed?

(b) Did the claimant suffer a breach of contract?

(c) If the dismissal was unfair or there was a breach of contract what is the appropriate remedy?

Findings of Fact

4. (a) The respondent employed the claimant from 30 October 2000 to 19

December 2003 as a valuer/sales negotiator and then manager of its Armagh branch. The respondent has 5 estate agent branches.

(b) The claimant earned per month £1,250.00 gross, £1,035.00 net and a monthly bonus of £250.00.

(c) The respondent decided to vary the way it paid some employees for travel in mid 2003 and offered to them, including the claimant 3 different options. The claimant found the negotiations difficult.

(d) In August 2003, Jayne Harrison, the managing director, decided to conduct an internal audit in all the branches. The claimant prepared diligently for the audit. The audit did not take place.

(e) At the end of September 2003 Jayne Harrison visited the Armagh office and talked with Leslie Johnston, the claimant's subordinate. She did not initiate conversation with the claimant.

(f) Jayne Harrison forcefully asked the claimant by phone why a client of the Armagh branch, the Brownlee family, was using another estate agents in Armagh. This was necessary as there was a marriage break-up. The claimant had never been spoken to in that fashion previously.

(g) Leslie Johnston was off sick in September and October 2003 and the claimant believed that she had not been provided with support by the respondent.

(h) In mid 2003 Nationwide Building Society withdrew their internal office from the Armagh branch. This involved the removal of a counter and wall display. Redecoration was necessary thereafter. Initially Jayne Harrison took responsibility for the redecoration but later passed the responsibility to the claimant. The redecoration was not done until several months later. Subsequent to a visit to the Armagh branch and because the redecoration had not been done Jayne Harrison declared to Audrey Molloy, the manager of the respondent's principal office at Portadown, that she would never set foot in the office again.

(i) In November 2003 Jayne Harrison informed the claimant that she had received two complaints about her. She did not identify the complainers or specify the nature of the complaint.

(j) In late November or early December 2003 the claimant believed that Jayne Harrison had described the Armagh branch as "second rate estate agents". She stated that the comment had been made to Leslie Johnston.

(k) At an office party on 19 December 2003 the claimant and Jayne Harrison had an animated discussion in the course of which the claimant accused Jayne Harrison of ignoring her and she claimed that Jayne Harrison had told her that she was "sitting on a time bomb". Jayne Harrison denied this. During that discussion the claimant tendered her resignation forthwith.

(l) On 22 December 2003, at the respondent's request, the claimant returned her car to the respondent though she asserts that the car is hers.

The Law

5. (a) To establish a constructive dismissal that is unfair an employee must prove;

(i) that there was a breach of his contract of employment, and

(ii) that the breach went to the core of the contract, and

(iii) that he resigned as a result of the breach, and

(iv) that he resigned fairly soon after the breach occurred, and

(v) that in all the circumstances the employer acted unreasonably.

(b) The breach of contract can be the breach of an express term of the contract or a breach of the implied term of trust and confidence or both.

(c) A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct over a period of time.

(d) Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct cumulatively must amount to the breach of the implied term.

Application of the Law and Findings of Fact to the Issues

6. (a) The claimant asserts that the respondent breached the implied term of trust

and confidence in the claimant's contract of employment. The claimant relies on a number of incidents from July to 19 December 2003, set out above, as establishing the breach.

(b) The tribunal is not persuaded on the balance of probabilities that the respondent breached the implied term of trust and confidence in the claimant's contract of employment. In so concluding the tribunal was influenced by the following matters:-

(i) The negotiations in relation to the car options were difficult but they are part of the cut and thrust of negotiations between employer and employee. They led to an amendment to the claimant's contract of employment. In the tribunal's view this could not constitute an element in a claim for constructive dismissal.

(ii) The internal audit did not take place in any of the respondent's branches. There is not any evidence that it had the effect of singling out the claimant for special treatment. In the tribunal's view this could not constitute an element in a claim for constructive dismissal.

(iii) The tribunal is not persuaded that the September conversation with Leslie Johnston constitutes an element in a claim for constructive dismissal because:-

(1) Jayne Harrison offered a plausible explanation for this incident i.e. that the claimant was on the phone when Jayne Harrison arrived.

(2) The claimant subsequently joined the conversation without any adverse reaction from Jayne Harrison.

(3) Although the claimant stated that there were many examples of this type of conduct by Jayne Harrison this is the only one about which evidence was given.

(4) The claimant claimed that Jayne Harrison was curt and abrupt but she did not illustrate this with evidence.

(iv) Even if Jayne Harrison was forceful about the Brownlee house sale that is a legitimate concern of an estate agency and the tribunal does not think this was an abuse of the claimant. In the tribunal's view this could not constitute an element in a claim for constructive dismissal.

(v) The respondent provided support to the claimant when Leslie Johnston was off sick. In the tribunal's view this could not constitute an element in a claim for constructive dismissal.

(vi) Jayne Harrison's comment to Audrey Murphy about lack of progress on the redecoration is understandable given the obvious importance of appearance to clients of the estate agents. It was not said to the claimant and did not amount to an attempt to undermine the claimant. In the tribunal's view this could not constitute an element in a claim for constructive dismissal.

(vii) The raising of complaints about the claimant without identifying the complainers or the nature of the complaints could constitute an element in a course of conduct that could lead to a breach of trust and confidence. The tribunal finds that this element alone is not sufficient to amount to a breach of trust and confidence.

(viii) The "second rate estate agents" allegation is capable of contributing to a breach of trust and confidence. The tribunal is not persuaded that it was said because:-

(1) The claimant did not hear this comment but states that Leslie Johnston informed her that it was said.

(2) Jayne Harrison and Leslie Johnston deny that it was said.

(3) The claimant accepts that there could have been a misunderstanding or it could have been misheard.

(4) Jayne Harrison offered a plausible explanation. She admitted saying that the Armagh branch was "second in the market".

(ix) The tribunal is not persuaded that Jayne Harrison threatened the claimant (that she was "sitting on a time bomb"). In so concluding the tribunal was influenced by the following matters:-

(1) The claimant alleges and the respondent denies it was said.

(2) There is no objective evidence to support either contention. If it were said and was construed by the claimant as a threat the

claimant's behaviour thereafter is somewhat strange.

The claimant locked up the Armagh office as usual.

She agreed to go out to dinner with the maker of the threat immediately after.

She did not tell her mother that evening when she came to collect her or over the weekend.

There is not any reference to the threat in the originating application or in her solicitor's letter of 9 January 2004 to the respondent that claimed that the claimant had been constructively dismissed.

In the tribunal's view the events of 19 December 2003 could not constitute an element in a claim for constructive dismissal.

(c) In the absence of a breach of contract it is unnecessary to consider the other factors necessary for an unfair constructive dismissal.

(d) On the first day of hearing the respondent conceded that it owed to the claimant £115.00. This arises from claims for unpaid wages, petrol allowance, accrued holiday pay and a house registration bonus. This amounts to a breach of contract but the tribunal does not think that this factor constitutes an element in the breach of contract necessary for a constructive dismissal. The claimant does not suggest that this was a factor in her decision to resign. In fact it seems to have emerged as an issue after termination.

(e) The taking of the car used by the claimant on 22 December 2003 and the determination of its ownership is not a matter for an industrial tribunal. The removal of the car occurred after the claimant's contract of employment had ended on 19 December 2003 and is not an issue that arises on termination. This is a matter for the civil courts.

(f) Accordingly, the termination of the claimant's contract of employment arose because of her resignation and not by reason of an unlawful constructive dismissal and accordingly her claim for unfair dismissal is dismissed.

Chairman:

Date and place of hearing: 22 October 2004, 10, 11 and 12 January 2005 and

10, 11, 15 and 16 March 2005 and 18 April 2005,

Belfast.

Date decision recorded in register and issued to parties: