Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 561/06

CLAIMANT: Michael Dougal

RESPONDENT: Deluxe Art & Theme FX Ltd

DECISION ON A PRE-HEARING REVIEW

The tribunal's decision is that the claimant is entitled to present the above numbered claim to the industrial tribunal despite not having sent a grievance in writing to his employer in respect of his complaint of unfair constructive dismissal.

Constitution of Tribunal:

Chairman (sitting alone): Mrs M Davey

Appearances:

The claimant was present and gave evidence.

The respondent was neither present nor represented.

THE FACTS

The claimant resigned his employment on 3 February 2006 following incidents where he was disciplined, unjustifiably in his view, and exposed to aggression, anger and bad language from the managing director of the respondent.

The claimant sent his resignation in writing to the managing director by letter dated 3 February 2006. In this letter he referred to outstanding commission owed to him but made no mention of the way he alleged he had been treated by the managing director which the claimant maintained caused him to leave his employment. He sent a further letter dated 21 March 2006 again referring to the commission owed to him.

The claimant felt that to try to raise the matters of his objection to the disciplinary processes again and the manner in which he had been treated by the managing director would only lead to further angry outbursts from the managing director. The claimant informed the Tribunal he had been left physically shaking after the previous occasions when he alleged the managing director screamed, cursed and swore at him. The claimant maintained that in view of the managing director's behaviour the grievance procedure did not apply because he considered that commencing the procedure in relation to the treatment he had received over the disciplinary matters would result in his being subjected to further harassment by way of intimidation, degrading and humiliating treatment.

THE LAW

Article 19 of the Employment (Northern Ireland) Order 2003 requires that an employee should put a complaint to his employer in writing in respect of matters set out in Schedule 2 and 3 of that Order which relate among other things to constructive dismissal, breach of contract and unlawful deduction from wages.

Regulation 11 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 provides that a party does not have to commence the grievance procedure if:-

3.(b) "the party has been subjected to harassment and has reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in his being subjected to further harassment -

4. in paragraph (3)(b), "harassment" means conduct which has the purpose or effect of -

(a) violating the persons dignity; or

(b) creating an intimidating hostile, degrading, humiliating or offensive environment for him, but conduct shall only be regarded as having that purpose or effect if, having regard to all the circumstances, including in particular the perception of the person who was the subject of the conduct, it should reasonably be considered as having that purpose or effect".

In the circumstances of this case as presented by the claimant I am satisfied that the claimant had been harassed prior to his dismissal by the managing director and had reasonable grounds for believing that if he tried to raise his treatment in relation to the disciplinary matters again he would be subjected to further harassment. In these circumstances I accept that the procedure in relation to the presentation of a grievance in writing does not apply in relation to his claim of unfair constructive dismissal.

I am however satisfied that the claimant's letters of 3 February 2006 and 21 March 2006 with regard to the commission which he claims he is owed are sufficient to constitute a written grievance in relation to his claim of breach of contract/unauthorised deduction from wages.

Chairman:

Date and place of hearing: 12 October 2006, Belfast.

Date decision recorded in register and issued to parties: