Industrial Tribunals Northern Ireland Decisions

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Cite as: [2005] NIIT 1633_03, [2005] NIIT 1633_3

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1633/03

CLAIMANT: Benedict Grainger

RESPONDENT: Pat Kirk Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed, or unfairly constructively dismissed, by the respondent, and the claimant's complaint of unfair dismissal, otherwise unfair constructive dismissal, is dismissed by the tribunal.

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Falls and Hanna, Solicitors.

The respondent was represented by Mr D Quinn, Barrister-at-Law, instructed by McCanny & Keohane, Solicitors.

REASONS

Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of this matter. The tribunal heard oral evidence from the claimant and, on behalf of the claimant, from the claimant's sister, Mrs Dolan, and on behalf of the respondent company, from Mr P Leonard, Mr S Foley, Ms G Murphy and Mr P Kirk. The tribunal also received a bundle of documents which was admitted before the tribunal by agreement and also received in evidence additional documents. A significant body of the evidence before the tribunal was in contention but there also were some matters which were agreed upon between the parties.

In his originating application, the claimant complained of:-

(i) Unfair dismissal

(ii) Unlawful deduction from wages

(iii) Failure to pay proper holiday pay

(iv) Failure to pay agreed pension contributions.

The respondent accepted that the claimant had been employed, but maintained that the claimant had never been dismissed from employment with the respondent but had resigned from the employment. The respondent also resisted the contention that the claimant had been constructively dismissed. In regard to the remainder of the complaints the position is as set out below.

THE ISSUES

In respect of the claimant's contention that he had been unfairly dismissed, in the course of the hearing the claimant's representative elaborated upon that complaint to include, additionally, a complaint that the claimant had been unfairly constructively dismissed, in the alternative. Regarding the remainder of the claimant's complaints as set forth in his originating application, the tribunal was informed in the course of hearing that there had been an agreement reached between the respective parties in respect of the complaints of unlawful deduction from wages, failure to pay proper holiday pay, and failure to pay agreed pension contributions, which agreement was to be resolved by a payment being made by the respondent to the claimant; however that payment had not been made by the final date of hearing. In view of the fact that all complaints barring that of unfair (or unfair constructive) dismissal appeared to have been resolved between the parties with the actioning of the agreement for an appropriate payment only to be still attended to, the tribunal does not make any findings or determinations in respect of those three said complaints in its decision as set out below. The parties shall be at liberty to reapply to the tribunal in the event of failure to implement any of the settlement terms otherwise apparently agreed. The only issue therefore dealt with by the tribunal in this decision is the issue of whether or not the claimant was unfairly dismissed, or unfairly constructively dismissed, by the respondent.

THE TRIBUNAL'S FINDINGS

On foot of the oral and documentary evidence adduced before it, the tribunal made the findings of fact set out below. In respect of conflicts in the evidence, the tribunal resolved those conflicts in the making of the following findings:-

(a) The claimant was possessed of considerable experience as a mechanic in the motor industry. At the material time which concerns the tribunal he had approximately 16 years' experience as a motor mechanic. He appears to have commenced in that occupation as a mechanic with Fivemiletown and Brookborough Co-operative and Dairy Society Limited ("the Co-operative"), Fivemiletown, County Tyrone, based at the Co-operative's "Auto Service Station", Sligo Road, Enniskillen. In respect of that post the claimant was provided with a statement of main terms and conditions of employment which statement described his job title as being, "mechanic". Those terms contained a written disciplinary and grievance procedure. Clause 4 of the said statement also contains the words, "however when considered necessary/appropriate by management you are liable to transfer to some other duty in order to meet fluctuations/priorities in work demands". On 14 April 2000 the claimant signed his agreement to an updated statement of terms and conditions of employment providing, amongst other things, that the claimant was a member of a group pension plan with Royal and Sun Alliance which plan provided for both a personal contribution and an employer's contribution to the plan. The updated statement also provided for paid annual leave and specific agreed hours of work. A sick pay scheme from the Joint Industrial Council for the Milk Processing Industry in Northern Ireland also appears to have been incorporated into the agreed terms and conditions applicable to the claimant's employment. That scheme provided for contractual sick pay and other benefits.

(b) In February 2001 a Mr Paul Leonard acquired the "Auto Service Station" in Enniskillen from the Co-operative and that part of the former business of the Co-operative transferred into Mr Leonard's ownership and was renamed "A1 Autos". As a consequence, the claimant became an employee of Mr Leonard who was the sole proprietor of A1 Autos. There was one other mechanic, a Mr Ronnie Nevin, who had previously been employed by the Auto Service Station whose employment also transferred to A1 Autos at the time. Mr Nevin had rather less length of service than that possessed by the claimant.

(c) A1 Autos was a small concern in terms of the number of employees. In addition to the claimant and the other mechanic, the business employed a sales manager and an employee who had responsibility for after-sales and parts, as well as a small number of administrative staff. In passing, it must be mentioned that at all times and by all accounts, the quality of the claimant's work as a mechanic was beyond reproach.

(d) Whilst being an experienced motor mechanic, the claimant did, from time to time, express the desire to, as it was put, "get out of the boiler suit and into the shirt and tie", thereby expressing a desire on his part to take on a more administrative type of function within the business enterprise. In respect of the specific functions performed in the business at that time, that is to say the early part of 2002, two employees of A1 Autos, Ms Gemma Murphy and Ms Diane Boyle, both performed a function in the business accounts department and, in particular, Ms Boyle's function specifically involved the administration of the parts, after sales and service department of A1 Autos. The claimant assisted Ms Boyle to a degree in that function, in that he helped by assisting with the sourcing of parts and spares; he was very familiar with these, having worked with the types of vehicles with which the business was concerned over a considerable period of time.

(e) As it transpired, Ms Boyle left the employment of A1 Autos rather suddenly. There was a conflict in the evidence as to whether or not that sudden departure occurred in September 2002 or in November 2002 and, regrettably, employment records which would otherwise probably quite easily have resolved that issue were not placed before the tribunal; the tribunal had some difficulty in resolving that departure date. The significance of that difficulty relates to the subsequent and rather significant installation of the claimant in the job role that had previously been carried out by Ms Boyle, that is to say being in charge of parts, after sales and the service department of A1 Autos. The demands of that post involved both a working familiarity with the specific parts and spares employed by the business (and the tribunal is satisfied that the claimant a considerable degree of such familiarity) and also the performance of an administrative function which involved the use of a computer-based system. Whilst the job functions were rather different from those previously carried out by the claimant, the claimant agreed upon being so requested by Mr Leonard to undertake the new post. Examining the evidence, the tribunal is satisfied that there was no duress applied by Mr Leonard to ensure that the claimant transferred to the post; the claimant undertook that transfer quite willingly at that time. The claimant was then given assistance by Ms Murphy in regard to some of the more unfamiliar aspects of the functions, and had further help and support, as is mentioned below.

(f) In the early part of 2002, discussions had commenced between Mr Leonard and Mr Pat Kirk, Managing Director of Pat Kirk Limited, the respondent company, concerning the possible takeover of A1 Autos by the respondent company. Mr Kirk had visited the premises on a number of occasions to familiarise himself with the operations of the business. Ultimately agreement was reached that the respondent company would acquire the business undertaking of A1 Autos. That acquisition was completed on 1 December 2002. As a consequence, the contracts of employment of all employees of A1 Autos, including that of the claimant, transferred to the respondent company with effect from 1 December 2002. The respondent company was a sizeable concern in the motor industry in Northern Ireland, with a number of commercial outlets at different locations in Northern Ireland. The total staff employed by the respondent company at the material time numbered in excess of 35 or so employees. In contrast, A1 Autos at the time of the takeover employed about 5 persons, including the claimant.

(g) The computer-based administration system of the respondent company had certain similarities to the system already in existence in A1 Autos at the time of the takeover. However a decision was taken to rationalise the administrative systems and that task was undertaken by a Director of the respondent company, Mr Seamus Foley, and by a Mr Peter McDermott. The claimant was at that stage given a total of four days' dedicated training on the new computer-based administrative system by Mr McDermott. Further, a procedure was devised whereby any employee using the administrative system could communicate remotely with Mr Foley in respect of any enquiries. Additionally, a "dummy" system was devised to assist with training and enquiries whereby users could try out procedures and techniques in order to gain familiarity without, as it were, "causing any damage". Ms Gemma Murphy was to hand, at all times, to deal with practical difficulties such as might have been experienced by the claimant in the implementation and practical working of the system. There is no doubt that the claimant, notwithstanding that he possessed some familiarity with contemporary technical and electronic equipment of a diagnostic and information retrieval nature used in the auto industry, did not have a ready familiarity with computer-based information management and retrieval systems, and that he required specific training. However, the claimant, for whatever reason, also appears to have had a certain resistance to the acquisition of knowledge and of skills in these types of systems at the material time. As far as the tribunal is concerned, there is no doubt that, in general terms, there was an apparently reasonable and adequate training and support system provided by the respondent which could have been availed of by the claimant at the material time.

(h) The tribunal heard contradictory evidence concerning an issue of alleged harassment said to have been suffered by the claimant at the hands of a Mr James McGovern, an employee of A1 Autos and then subsequently of the respondent. Mr McGovern was the father of Ms Boyle. The claimant contended at hearing that he had been subjected to bullying and harassment by Mr McGovern, which claimed conduct appears to have been in some way connected with Ms Boyle's sudden departure from her post and with the claimant's taking up of that post, so it was alleged. The claimant contended that he had complained on a number of occasions to Mr Leonard about this bullying and harassment, and that Mr Leonard had failed to do anything about such complaints. The other mechanic, Mr Nevin, was also alleged by the claimant at hearing to have been involved in this harassment. Mr Leonard denied that the claimant had made these complaints to him. The claimant's evidence in that regard was uncorroborated by other witness evidence or by other means. Considering the conflicting evidence, and giving consideration to all relevant factors, the tribunal prefers the evidence of Mr Leonard which was that Mr Leonard was unaware of any specific complaints of harassment of the claimant by Mr McGovern save for one incident that occurred in February of 2003. There was a specific issue, it appears, concerning a customer's MOT appointment that was missed, and some difficulty arose thereby that affected the claimant. Mr McGovern appears to have been in some way responsible for or connected with that. However, Mr McGovern appears indeed to have had certain conflicts in the workplace with other individuals which eventually resulted in disciplinary proceedings being taken against Mr McGovern by the respondent. However, it is not the case, as far as the tribunal is concerned, that the claimant repeatedly complained about Mr McGovern's harassment of him to Mr Leonard and that these complaints were dismissed or ignored by the latter.

(i) On 13 January 2003 Mr Leonard called together the staff and gave them what could be best described as a "pep talk". There is no doubt that an endeavour was being made by Mr Leonard to encourage all staff to assist in achieving an efficient and proper administration and management of the business outlet under the new ownership of the respondent company. The perceived need to have such a talk on Mr Leonard's part appears more to relate to the giving of general encouragement to all employees to pull together, rather than to relate to a specific dealing on Mr Leonard's part with any difficulties at the time alleged by the claimant to have been experienced on his part.

(j) The claimant then had a period of sickness absence from work commencing on 4 March 2003. He returned on 5 April 2003. This absence was as a result of a specific medical condition. From any evidence available to it, the tribunal does not believe that this absence was in any way directly connected with any medical issue arising from stress at work contended by the claimant at the hearing to have been sustained by him.

(k) A short time after the claimant's return to work from this period of sickness absence, on 9 April 2003 the claimant and Mr Leonard met and had a discussion during the course of which the claimant stated to Mr Leonard that the claimant was, as he put it, "fed up with the job". The discussion centred around the claimant's stated difficulty in dealing with the computerised management system in relation to his job functions. The claimant stated to Mr Leonard that he did not wish to continue and he requested that he be paid off. Subsequent to that discussion Mr Leonard spoke with Mr Kirk and the latter declined to accede to the suggestion that the claimant might be made redundant.

(l) The next day, 10 April 2003, Mr Leonard spoke again with the claimant and he conveyed to him the respondent's decision that he was not to be made redundant, that there was a need for the claimant to continue his work in the parts, after sales and service department and, in any event, the possibility of the claimant's returning to being a mechanic was not feasible as there was insufficient work fully to occupy two mechanics. From the tribunal's inspection of documentation furnished regarding the productive hours of the section at the relevant time, it clearly appears to have been the case that the business did not require two mechanics in full-time employment.

(m) On Friday, 25 April 2003, the claimant had a further discussion with Mr Leonard whereby he expressed dissatisfaction with his continuance in this post. Mr Leonard gave him some words of encouragement, whereupon the claimant stated to Mr Leonard that he would think about his situation over the weekend. On Monday 28 April 2003 the claimant spoke with Mr Leonard. There was a regrettable but significant conflict between the evidence of the claimant and that of Mr Leonard as to what occurred that day. In regard to this, the tribunal on balance prefers the evidence of Mr Leonard and of the respondent's witness, Ms Murphy, as being more credible and as being to an extent corroborative one of the other and consistent. The tribunal was conscious of Ms Murphy's being an employee of the respondent at the hearing date, but found her evidence to be entirely credible The claimant spoke with Mr Leonard and, having apparently considered his position over the previous weekend, the claimant announced to Mr Leonard that he had had enough of the job and that he had decided that he was not going to get himself into bad health over the job and that he was leaving. The tribunal is satisfied from the tenor of the evidence that this, "he was leaving", was a reference to the claimant leaving not just the specific post then occupied by him, but indeed his employment with the respondent. The tribunal does not detect any ambiguity in the words spoken. The claimant also spoke with Ms Murphy that same day and announced to her that he would be leaving the employment in two weeks' time. Again, the tribunal does not see any ambiguity in that announcement to Ms Murphy; this was a reference to his leaving employment with the respondent and not to his leaving the post then occupied by him (and returning to any other post within the respondent company). After that resignation was communicated by the claimant to Mr Leonard the outstanding issue of appropriate notice of leaving was apparently discussed and was agreed. Notwithstanding some ambiguity in the evidence about the precise date, the tribunal understands that a leaving date of 16 May 2003 was discussed and agreed at the time.

(n) Mr Leonard orally communicated acceptance of the claimant's resignation on behalf of the respondent and, everything having been apparently agreed as regards the date of leaving, the claimant proceeded to make plans to engage in a car rally which apparently was to commence on Friday 2 May 2003 in the Republic of Ireland and to proceed over the subsequent few days. The claimant was apparently off work for a few days for that purpose. Sponsorship of the claimant for that activity was provided, it appears, by the respondent. The tribunal is a little unclear from the evidence as to what day the claimant was supposed to return to work to finalise working out his notice period. However, the claimant came in to work on 7 May 2003 and he gave to Mr Leonard a "sick line" from his Doctor for a period of 4 weeks' absence. Apparently the claimant's illness as stated in that "sick line" was said to be stress-related. Mr Leonard had of course been aware that the claimant had been ill previously some weeks before. However, the tribunal understands that the diagnosed illness stated on the previous "sick line" was not described as being stress-related. At that point Mr Leonard apparently was rather surprised and he became rather suspicious of what he viewed as the claimant's intentions. Mr Leonard stated that he was not going to fall out with the claimant but that he knew what he was up to. That was apparently a reference by Mr Leonard to his belief that the claimant was endeavouring to depart from what had previously been agreed regarding the basis and the timing of the claimant's leaving the job. The conversation between the two finished at that point.

(o) It appears that Mr Leonard had, at what point the tribunal cannot quite be certain, issued to the administrative staff of the respondent an instruction to prepare final wages and a P45 with a view to the claimant's leaving on 16 May 2003. Whether on account of a default or not, it seems that the P45 (possibly with the final instalment of wages although the tribunal is not entirely clear on that point) was posted by the respondent's wages department to the claimant without any covering letter also being enclosed therewith. That P45 was received by the claimant in the post on 16 May 2003.

(p) There is no doubt that, upon receipt of the P45 on 16 May 2005, the claimant became rather agitated. He contacted his sister, a Mrs Dolan. The claimant, together with Mrs Dolan, called that day with Mr Leonard and the two spoke with him; the tone of the meeting was apparently perceived by Mr Leonard as being quite confrontational. Mr Leonard took the view that he was unwilling to continue with the meeting in the absence of a witness being present. He called the meeting to an abrupt close and he promised that a further meeting would be convened when a witness would become available. As it transpired, no further meeting took place. Then the claimant took legal advice and subsequently issued these proceedings by means of an originating application dated 23 June 2003, which application was received by the Office of Tribunals on 24 June 2003. The tribunal does not need to determine any further material findings of fact for the purposes of its determination in this case.

THE APPLICABLE LAW

In respect of the applicable law, the Employment Rights (Northern Ireland) Order 1996 ("the Order") provides at Article 126 of the Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the Order provides for the determination of the fairness or otherwise of any dismissal. Article 127 of the Order provides for the purposes of Part XI (the unfair dismissal provisions of the Order) that an employee is dismissed by his employer either if the contract under which he is employed is terminated by the employer (whether with or without notice) or if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it by reason of the employer's conduct. In regard to that, an employee is entitled to terminate the contract of employment and can accordingly claim constructive dismissal subject to four conditions which must be satisfied. Firstly, there must be a breach of contract by the employer, either actual or anticipatory. Secondly, the breach must be sufficiently important to justify the employee resigning or else it must be the last in the series of incidents which justify his leaving. Thirdly, the employee must leave in response to the breach and not for some other, unconnected, reason. Fourthly, the employee must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach. The leading authority on constructive dismissal is the case of Western Excavating (ECC) Ltd –v- Sharp [1978] IRLR 27. Where the issue arises, as it does in this case, as to whether or not there had been a resignation by an employee or a dismissal, one looks at the issue of potentially ambiguous language. It must be decided whether or not there was an ambiguous or an unambiguous use of language, and whether termination of contract does or does not flow thereafter. In that regard, in submissions the tribunal was referred to a number of leading authorities. Included amongst these references were the cases of, Southern –v- Franks Charlesly and Co [1981] IRLR 278, Barclay –v- City of Glasgow District Council [1983] IRLR 313, Sovereign House Security Services Limited –v- Savage [1989] IRLR 115 and Kwik Fit (GB) Ltd –v- Lineham [1992] ICR 183, IRLR 156. It appears that the distillation of authority deriving from these and other cases is that the question to be looked at and answered is how a reasonable listener would have construed the words used in all the circumstances of the case. In the Sovereign House case, in the Court of Appeal in England, May LJ said:-

"In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight".

It is recognised that an employee using apparently unambiguous words of resignation might, nonetheless, in special circumstances avail of an opportunity to argue that it would be unreasonable for words to be construed at face value. These special circumstances emerging from the decided authorities would include words spoken in the heat of the moment, or under extreme pressure, or words spoken by an immature employee, or one jostled into a decision by the employer, or, as in the case of Barclay, where the employee was suffering from a mental disability. The tribunal was also referred to the case of Marriott –v- Oxford and District Co-operative Society Ltd [1969] 3 All E.R. 1226, regarding the proposition that an employee is entitled in particular circumstances to continue to work for an employer, as it were "under protest", for a short period pending the finding of alternative employment. Finally, and this was not in contention, the Transfer of Undertakings (Protection of Employment) Regulations 1981 provide that the transfer of any undertaking shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or in the part so transferred. In this case there were two such transfers of the claimant's contract of employment both of which were accepted as being such as to come within the ambit of the said 1981 Regulations.

THE TRIBUNAL'S DETERMINATION

Having applied the relevant principles of law contained in the foregoing statutory and other provisions and authorities to the findings of fact made by the tribunal, the tribunal must be satisfied in this case that there was a dismissal of the claimant by the respondent, whether that be a constructive dismissal or otherwise. In this case, the tribunal has made a finding of fact that on 28 April 2003 the claimant used words of resignation thereby indicating a clear and unambiguous intention to resign and to leave employment with the respondent. The tribunal is not satisfied that those words were qualified as referring only to the specific post of employment actually occupied by the claimant at that time; from the evidence before it the tribunal does not determine that the words used were in any way ambiguous. The words used would therefore fall into the category of unambiguous words which words then ought to be appropriately construed so as to determine in the context of everything whether or not there was an actual resignation on the claimant's part. In that regard, the tribunal would look to and consider the specific exceptions, or special circumstances, of the type referred to in the Barclay case above, and also in the other leading authorities. The question therefore posed is whether or not there was anything in the context of the discussions, or the exchange, between the claimant and Mr Leonard, or in the more general context of circumstances prevailing at the time, which would entitle the tribunal to conclude that, notwithstanding the words used, there was no real resignation despite what might otherwise appear to have been the case. Looking at the submissions, for the claimant, it was argued that, if the tribunal accepted that such words were spoken, the words were then indeed spoken in the heat of the moment, and moreover spoken by a person who was then suffering from severe stress and who was under extreme pressure at work. That arose, so it was submitted, as a result of the claimant being compelled to undertake a job which was beyond his capability, and where his repeated pleas to his employer had been ignored and disregarded in a callous fashion. The employer's motivation for this, so it was argued, was commercial expediency. Indeed, it was further argued on behalf of the claimant that the motivation lying behind the allegedly forced transfer of the claimant into the parts, after sales and service department, was to avoid the cost of a redundancy from amongst the two mechanics employed, the claimant and Mr Nevin.

Considering the claimant's submissions as mentioned above, and the detailed and extensive further submissions made (and also the very full submissions to the contrary made on behalf of the respondent) the tribunal notes that the claimant was indeed absent for approximately one month on grounds of illness for the better part of March 2003 and into the early part of April 2003. The first evidence, from a clinical standpoint, that the claimant was suffering from any stress-related illness appears to have been the "sick line" first provided to the respondent on 7 May 2003. The tribunal examined any evidence available that at the specific and material date which concerns the tribunal, that date being 28 April 2003 when the words of resignation were spoken, the claimant was suffering from a clinical illness. In the absence of such, the tribunal further examined any evidence available that at 28 April 2003 the claimant was suffering from such a degree of stress and pressure, whether arising from work-related causes or otherwise, such as to render apparently unambiguous words of resignation subject to one of the exceptions or special circumstances mentioned above. Whilst there is a reference in the evidence to the claimant "not getting himself into bad health" over the job, the tribunal feels that there is rather some distance to go between acceptance of that comment being made, which undoubtedly it was by the claimant, and the necessary proof from the perspective of a listener construing the words used in all the pertinent circumstances of the case, that the claimant did fall within the category of special circumstances where it would or might be unreasonable to construe the words used at face value. Here the tribunal is mindful of the words of May LJ mentioned above, " In my view tribunals should not be astute to find otherwise". The tribunal takes the view that the authorities would appear to suggest that there is a particular standard or threshold of proof that must be attained to avail of the exception, and that that standard has not been met and surpassed in this case

In view of this difficulty, the tribunal is drawn to the conclusion that the claimant used unambiguous words of resignation and, further and on balance, that it was reasonable for Mr Leonard to have construed those words at face value in the full context of things. This is so especially given the fact that, firstly, the claimant had previously expressed a desire to be made redundant but that request had been denied, secondly, that he had mentioned to Mr Leonard on 25 April 2003 that he was intending to leave, thirdly, that he had been requested by Mr Leonard to reconsider his position over the weekend and, fourthly, that having apparently reflected on the matter over the weekend, the claimant then proceeded in an apparently unambiguous fashion to announce his resignation. Thus, Mr Leonard's construction was reasonable, it would appear. There was an express resignation and that was properly and reasonably taken at face value as such.

One then turns to the issue of constructive dismissal which, in the alternative, was submitted by the claimant's representative as being applicable. It was the claimant's submission that the claimant was effectively forced into taking up the new post (whether in November 2002 as the claimant would state, or in September 2002 as the respondent would state) and that the claimant effectively continued to work under protest in that post until the employment ended. It was correctly pointed out, without demur on the respondent's representative's part, that there was no amendment to the claimant's written terms and conditions of contract, as would be required under Article 36 of the Order, and that there was no increase in pay or any other contractual recognition in consideration of what was stated by the claimant's representative to be a considerably more demanding job in comparison to that which had previously been performed by the claimant. For its part, the respondent did concede that there was no amended statement of particulars of employment and that there was no corresponding pay increase at the time of the move. However, it was contended that the claimant had indeed been looking for a post that did not involve his continuing to wear a "boiler suit", and that the claimant did not show any evidence of his being reluctant to move to the new post or of "working under protest", save that he did require some attention to be paid to his training needs. There was also some suggestion that the claimant was somewhat resistant to change insofar as this applied to the computer-based applications of his job. The claimant, the tribunal notes, had contended that he had complained repeatedly to Mr Leonard both in regard to his inability to conduct the job functions of the specific post he was required to do and also in regard to his alleged harassment by Mr McGovern (and possibly by the other mechanic). However, as a matter of fact, the tribunal does not accept that there was a significant history of complaints and protests. The tribunal sees that there is a reference, in one of Mr Leonard's notes taken at the time, to the claimant, "throwing up the head". However, from the evidence, the tribunal interprets that as being a reference to the somewhat frustrating prospect, as Mr Leonard saw it, that notwithstanding considerable efforts being devoted to training on the part of the respondent, the claimant was not really properly responding to a reasonable degree, and was perceived by Mr Leonard as making difficulties where none really existed. The contention was made on behalf of the claimant that the degree of induction and training regarding the new post was not reasonable or adequate for the claimant's specific needs, he being someone who had no prior experience in the use of computers. The tribunal cannot accept that contention. Apart from the four days' dedicated training received, systems were put into place by the respondent to provide for plenty of assistance and support being given to the claimant.

The tribunal does not accept the claimant's contention that there was a long history of repeated complaints and difficulties brought to the attention of the respondent's management at large and accepts the evidence of Mr Kirk and Mr Foley in that regard without any difficulty. Regarding any complaints that were alleged to have been made specifically to Mr Leonard, the tribunal does not believe that there was a series of complaints made and grievances raised, whether these be made or raised formally or informally by the claimant with Mr Leonard, which were then subsequently ignored by Mr Leonard in the callous and uncaring fashion that has been suggested. In contrast to that submission, the reality is that there was encouragement given in respect of any difficulties encountered and Mr Leonard adopted a reasonable stance in assuming that the training and support which had been and was being provided would ultimately lead to, so he felt, the claimant being in a position properly to fulfil the duties of the post with comparative ease.

For there to be a constructive dismissal of any employee, the tribunal would need to determine that there was sufficient weight of evidence of breach of contract on the part of the employer so as to entitle the employee to resign. In terms of the argument that the contract of employment was fundamentally breached at the time (whether that time be in September 2002 or in November 2002), when the claimant was requested to move into the parts, after sales and service department, the tribunal accepts that the claimant moved to that post voluntarily and without protest and that the claimant thus accepted a consensual amendment to his contract of employment, without duress. There is nothing sufficient to indicate that there was forced change of job role or function imposed upon the claimant sufficient to suggest a fundamental or significant breach of contract at that stage. This is also, in the tribunal's view, not a case where there was a mute and passive but nonetheless effective non-acceptance on the part of the claimant of any contractual changes. Here the tribunal sees that the employee moved into the new post either in September (on the respondent's account) or in November (on the claimant's account) of 2002, without apparent duress being applied at the time of his moving to the post. Looking at the facts deriving from the evidence, the tribunal cannot see on the claimant's part at the time non-acceptance of the contractual amendments, whether active or mute or passive in nature. However, the tribunal does note that by February 2003, the claimant absented himself from the place of employment for a period of four weeks on grounds of an illness which the tribunal accepts, for want of any evidence to the contrary, as being unconnected with any stress or pressure claimed to have been placed upon the claimant by that move. Upon the claimant's return, the tribunal sees the claimant engage in a series of conversations with Mr Leonard which exchanges would ultimately lead to the claimant's resignation.

Any employer is under an implied obligation not to engage in conduct likely to destroy or to seriously damage the relationship of trust and confidence between the employer and the employee. (See Malik –v- Bank of Credit and Commerce International SA [1997] IRLR 462). On the facts, the tribunal cannot accept that Mr Leonard, on behalf of the respondent, or indeed, any other member of management of the respondent company, conducted himself or themselves, or the respondent company's affairs, in such a fashion as to cause significant breach of the implied term referred to above. This would particularly apply to the allegations that Mr Leonard in a cold and callous fashion ignored and disregarded the plight of the claimant. In contrast, support and encouragement were afforded to the claimant by the respondent, to a reasonable extent. It is notable that when the claimant expressed the desire to resign he was afforded by Mr Leonard a period of time to consider his position and he was encouraged not to make a hasty decision in that regard.

The tribunal, as a consequence of all of the foregoing, is satisfied that the necessary elements to enable the tribunal to form a conclusion that there was a constructive dismissal of the claimant are not present. Thus, the tribunal is able to conclude with unanimity that there was no constructive dismissal of the claimant under all of these circumstances.

The foregoing being the case, the tribunal is not satisfied that the claimant was dismissed, or constructively dismissed, unfairly by the respondent. In view of what is stated above, the tribunal does not make any further determinations in regard to the case. The claimant's complaint of unfair dismissal, otherwise unfair constructive dismissal, is dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 7 April 2005, Enniskillen, 25 April and 31 May 2005, Omagh, and 15 June 2005, Belfast.

Date decision recorded in register and issued to parties: