Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 364/05

CLAIMANT: Gareth Sinnamon

RESPONDENT: Donnelly Bros (Dungannon) Ltd

DECISION

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

Constitution of Tribunal:

Chairman: Mr M Davey

Members: Mr J Nicholl

Mr A Burnside

Appearances:

The claimant was represented by Mr S. Mooney, Barrister-at-Law, instructed by Doris & McMahon, Solicitors.

The respondent was represented by Mr B. Morgan of Morgan McManus, Solicitors.

REASONS

1. The claimant had claimed that he had been unfairly dismissed; that he was the victim of a campaign of harassment and abuse; and further, that he had been unfairly dismissed. The issue for the tribunal was whether he had been dismissed either directly or constructively, and, if so, whether the dismissal was unfair.
2. The facts were that the claimant was employed by the respondent in March 2001. His immediate boss was one David Black with whom he initially enjoyed a satisfactory relationship. In the summer of 2004 that relationship deteriorated. An incident took place between the claimant and Mr Black which provoked a complaint by the claimant to management. The matter was resolved by the site manager, Mr Savage, who made a point of speaking to the claimant the following week to see if he was comfortable in his work and to indicate that if any further problems arose he should raise them with him. The claimant said that the relationship with Mr Black suffered as a result of this. This was denied by Mr Black. It is, however, clear that no complaint of any kind was made subsequently by the claimant. A further incident in which the claimant felt aggrieved occurred on 8 December when, according to the claimant, he had to work late although he had specifically asked to go home early. The fact of his having so asked was denied. No complaint was raised however. The following week there was an exchange between the claimant and Mr Black during which Mr Black used strong language. The claimant accepted that strong language was by no means unusual and that he himself used it. On this occasion, however, the claimant raised a complaint to his immediate line manager that the claimant was being given all the hard work. His line manager, Mr Graham, did not accept this, saying that the system ensured that once any employee finished a job he took the next one set out in the work system. The claimant said that if he was harassed any more he was walking out. About half an hour later he did so, saying, "I've had enough. I'm away home". His line manager asked him to stay and talk about it but he refused. The following day the claimant rang Mr Savage, who had dealt with his previous complaint and made it clear that he would not be back. Mr Savage suggested that they might be able to move the claimant but he refused. He said that if anyone was to be moved David Black would have to be moved. Mr Savage said that he felt the company would be reluctant to move a foreman at the request of a mechanic and the claimant repeated that he would not be back and that he was going to see his solicitor.
3. The claimant's evidence as to these events differed to some degree. He suggested that he had indicated to both members of management that he would not return until the matter was sorted out. He also claimed that the phone call to Mr Savage was a day later in response to a letter from the company asking him to clarify his position. The tribunal found the suggestion that he would dictate the terms on which he should return to be unlikely and preferred the evidence given by the two members of management. The tribunal accepts the evidence of Mr Savage that the call to him was made the day after the claimant left his employment.
4. On 15 December a formal letter was sent by the respondent to the claimant asking

him to clarify his position. There was no reply made. Subsequently, at a time prior to Christmas, the claimant came to collect his tools, taking the top half of his tool box, the bottom half being a large unwieldy object which required specific transport. At this time he met another employee who described the claimant as having said that he was there to get his tools because he had got sorted with a job, going to work with his brother.

5. At the beginning of January the claimant's solicitors wrote to the respondent. Their letter suggested that their client wished to continue working with his employer and sought a resolution of the matter to enable him to return to his employment. His employer responded by indicating that they had attempted to resolve the dispute,

that the claimant had left their premises and that they regarded him as having resigned. Indeed, they purported, in that letter, to accept his resignation. A meeting was subsequently arranged by the claimant's solicitors with the managing director of the company. That meeting took place. It was clear from the managing director's evidence that he regarded the claimant's employment with the company as at an end at the time of that meeting. Following the meeting the claimant wrote to the managing director referring back to his solicitor's letter of 6 January and requesting written reasons for his dismissal. The tribunal found that the claimant also regarded his employment as having come to an end by the time of that meeting and that the purpose of the meeting was to get his job back.

6. The claimant submitted that there had been a direct dismissal. This dismissal occurred, in the claimant's submission, either at or prior to the letter in which his resignation had purported to have been accepted. It was conceded that, given the letter of 15 December asking him to clarify his position, he could not have regarded himself as dismissed at that stage. However, according to his submission, the claimant regarded himself as being still in the employment of the respondent following the incident and his departure from work on 14 December 2004 in that nothing was done to ensure that he could reasonably return to work with the problem involving Mr Black duly resolved. The claimant stated in evidence that he understood that his employers would do what they could to sort it out and that he could go back to work after they had sorted it out. It was suggested that he had raised a complaint, if not wholly in accordance with the company's written procedures of which he was aware, at least with his immediate line manager and that he was therefore entitled to absent himself from work pending the resolution of that complaint. The first he realised that the respondent did not regard him as employed was when he saw the response to his solicitor's letter at the beginning of January.
7. The tribunal does not accept this analysis. There was absolutely no basis, even on the claimant's own evidence, on which he could have formed the view that the respondent was doing anything about investigating or processing any complaint . There was no question of anything being done to 'get this sorted out'. Nor does the tribunal consider that the claimant's non-attendance at work is consistent with a belief that his contract of employment was still extant. Even if there had been any indication that the respondent was investigating a complaint it would be wholly abnormal that the employee who made the complaint would have the option of not coming to work. Not only did the claimant not come to work, he made no enquiries and had no contact, subsequent to the telephone call of 15 December, about his position at all.
8. All in all, the tribunal considers that the claimant's conduct is infinitely more consistent with his having put in his resignation on 14 December. There is no question but that he did say that he was leaving. The tribunal finds that the following day he confirmed this, in terms. The tribunal also accepts the evidence on the part of the respondent that it was suggested to him by both members of management with whom he spoke that he should consult and discuss with them further about the matter but that he refused. This refusal goes to confirm the resignation position. His non-attendance at work confirms it further and it was further confirmed, if further confirmation were needed, by his statements to his fellow employee shortly before Christmas that he had got himself sorted with a job. The words used were unambiguous. The number of statements made and the claimant's continuing behaviour rule out any question of an ill considered spur of the

moment statement. The tribunal finds that the claimant resigned himself and that there was no direct dismissal.

9. The question then arises as to whether that resignation was justified. In his originating application the claimant suggested that he was harassed at work, that the workload was unfairly distributed, that he was called the 'wee bull', that he was often given an excessive workload, that his foreman was often abusive and aggressive towards him and used foul language, and that this amounted to a campaign of harassment and abuse.
10. The tribunal does not accept this analysis. Although during the course of his work the claimant was nicknamed 'the wee bull', other workmen, on the claimant's own evidence, had nicknames and the claimant claimed in his evidence to have christened one of his workmates 'Pugsy'. The claimant also described his work place as a workshop operation where there was swearing throughout the day and where he had cursed himself. Although he had been invited to speak to the site manager in the event of any problems or difficulty he had made no complaint whatsoever. On 14 December when he raised a complaint prior to leaving work it was on the basis of unfair workloads rather than harassment or abuse and the question of workload was then rejected. He did mention the matter of the way he had been spoken to as he left but even on his own evidence the event could not have been described as serious. All in all the tribunal is not satisfied that there had been any significant breach of the claimant's contract of employment such as would justify him in terminating his employment without notice.
11. In the circumstances described above the claim is dismissed.

Chairman:

Date and place of hearing: 16 August 2005 and

17 October 2005, Omagh.

Date decision recorded in register and issued to parties: