Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 755/05

CLAIMANT: Joseph Henry McClenaghan

RESPONDENT: South Eastern Education & Library Board

DECISION

The unanimous decision of the tribunal is that the claimant was neither unfairly nor constructively dismissed. His claim is dismissed.

Constitution of Tribunal:

Chairman: Mrs Watson

Members: Mr Wilkinson

Mr Hoben

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by Mr A Colmer, Barrister-at-Law, instructed by Education & Library Board's Legal Service.

THE ISSUES

The tribunal identified the following issues that both parties accepted;

(i) Was the claimant dismissed from his employment?

(ii) If yes, was the dismissal unfair or constructive?

THE ASSERTIONS OF THE PARTIES

The claimant was appointed to the position of Senior Youth Leader/Manager of the Poleglass Youth Club (PYC) by the respondent in November 2003. This was a secondment from his substantive post with the Probation Board for Northern Ireland. The post was a fixed term contract for an initial two year period with a possibility of permanency. The claimant alleged that from the time when Michael Devine became his line manager in September 2004 until he left his post in February 2005, he was harassed by Mr Devine and that the respondent did not deal adequately or at all with his complaints.

For their part, the respondent denied that there had been any harassment or any such complaint by the claimant and claimed that the claimant resigned from his post to return early to his substantive post with the PBNI.

THE SOURCES OF EVIDENCE

The tribunal was presented with two bundles of agreed documentation totalling over 300 pages. At the beginning of the hearing, the claimant alleged that he had not been provided with all documentation that he had requested on discovery and initially there appeared to be some substance to this complaint. However, with the exception of one document, the tribunal was satisfied that all relevant material had been provided. Much of the material sought by the claimant was more relevant to the substance of his allegations against Mr Devine than the issues for determination by the tribunal. The one document that troubled the tribunal was a copy of a note that had been made by the respondent's Human Resources Manager, Mr Mason, of the conversation he had had with the claimant which had led to the claimant leaving his employment. The note had been found by Mr Mason after discovery had been made to the claimant. Mr Mason provided a copy to the respondent's solicitors which was copied and sent to the claimant. However, the copy forwarded to the claimant was incomplete and only contained the first two lines of the note. The tribunal noted the importance of this document and was concerned that the Education & Library Board's Legal Service's procedures for checking the quality or content of an important discoverable document were so deficient on this occasion, especially when the claimant was not legally represented. In the event, the claimant suffered no prejudice and an apology was made but the tribunal wished to record the incident.

Oral evidence was heard from the claimant and Mr John Cusack, Community Worker, on his behalf.

On behalf of the respondent, the tribunal heard oral evidence from the following members of its staff:

Michael Devine, Colin Area Youth Work Co-ordinator, claimant's line manager.

Monica Meehan, Senior Youth Officer

Tommy McKeever, Assistant Youth Worker, PYC, claimant's assistant

Eamon Bogues, Senior Youth Officer.

James Peel, Assistant Senior Education Officer (Director : Youth).

John Mason, Human Resources Manager.

The matters in dispute between the parties took place from September 2004 to early February 2005, just over five months, and there was copious documentation concerning the events in question. However, it soon became quite clear to the tribunal that there was a major difference between the perception of the claimant and that of the respondent's witnesses as to the root cause of the problem.

The claimant is a very emotional person who had obviously been deeply hurt and distressed by what he viewed as the dreadful way he had been treated. He regarded Mr Devine as a bully who made his working life intolerable and saw the actions of the respondent as being a concerted effort to take the side of Mr Devine against him. While the tribunal had sympathy for the claimant and appreciated he was a truthful witness, we found that his perceptions and interpretation of the situation ignored the deficiencies in his own performance and his unreasonable behaviour towards his work colleagues, especially those in positions of authority over him.

FINDINGS OF FACT

The claimant started working for the respondent in September 2003. His line manager at that time was Mr Joe Valente and while he claimed that there were no real problems during this time, it was clear from oral and documentary evidence that the claimant experienced difficulties in this post.

In about April 2003, the claimant had witnessed an exchange of views between Mr Valente and Mr Devine who at the time was working on secondment to PBNI. The exchange related to the difference in approach to the provision of services for young people between Mr Valente who had more experience in centre based services and Mr Devine who favoured a community based approach. Mr Devine acknowledged that he and Mr Valente both argued with passion but professionally and neither felt any rancour towards the other afterwards. Mr McKeever who also witnessed the event agreed with that view but the claimant did not like Mr Devine's approach and decided at the time that if he had to work with Mr Devine in future, he 'might have difficulty'.

At their first meeting on 2 September 2003, Mr Devine presented his draft proposal for the future programme of work at PYC to the claimant and Mr McKeever. During the meeting, the claimant told Mr Devine that he 'might have difficulty working with him'. This surprised Mr Devine who had no previous knowledge of the claimant. Considering this was the first meeting between the claimant and his new line manager, the tribunal found the claimant's comment unreasonable and inappropriate, especially as it was in front of Mr McKeever, a more junior member of staff.

Mr Devine asked the claimant to stay behind after the meeting and asked him why he had made the comment. The claimant said it was 'a gut feeling' This incident was identified by the claimant as the first act of harassment of him by Mr Devine. The tribunal did not agree with this assessment.

Those employees of the respondent who have line management responsibilities have regular Supervision and Support meetings with the staff they manage. Mr Devine and the claimant had several such meetings over the following months. It was open to each to have items on the agenda for discussion. The claimant also met with Mr Devine and Ms Meehan, Senior Youth Worker, on 8 October 2004 to assist him in relation to issues he had with elements of his work which were causing him stress. These included the policies

and procedures of the respondent, the duties and responsibilities of the claimant's job and difficulties that had occurred in his working relationships with other workers on two previous occasions.

After each Supervision and Support meeting, the supervisor writes up a minute of the meeting which is signed by the worker as an agreed record. The tribunal noted that the claimant had delayed signing minutes of several meetings and on occasion only signed when comments or corrections of his were added. None of these additions referred to the claimant's assertion that he had found fault with Mr Devine's manner, tone or conduct. When asked to explain such omission, the claimant was unable to do so.

The tribunal was also provided with records relating to other meetings between the claimant and Mr Devine where Mr Devine had sought to raise matters of concern to him as a manager. The tribunal found the response of the claimant was often inappropriate and not what would be expected of a junior employee to his line manager. He accused Mr Devine of being confrontational and aggressive, of grinding his teeth, of thumping the table, of pettiness and 'nit picking', but the tribunal found it was more likely that the person who behaved unreasonably was the claimant.

In documents before the tribunal, Mr Peel, (Director : Youth), and Mr Devine told the claimant that they believed he had a problem with being supervised which he denied absolutely. The tribunal found that the claimant seemed to be unable to tell the difference between supportive and constructive advice and negative criticism. One example concerned a visit made to PYC by Mr Peel.

When he visited, Mr Peel noted that the Centre was doing well but that they could have done better if they had more staff. The claimant viewed this comment as being critical of his management. At a subsequent internal training exercise, the claimant sought to have the participants discuss Mr Peel's comments despite being told by senior staff that the training session was neither the time nor place to do so. The following day the claimant wrote to Mr Peel seeking a meeting to discuss these comments but Mr Peel had already asked the claimant to attend Board headquarters to discuss his actions at the training exercise. The claimant went there early and went to see Mr Stanton Sloan, Mr Peel's superior and told him that he was having problems with Mr Devine. Mr Sloan arranged for the claimant to meet a Trade Union Representative but nothing came of this contact as the claimant was not a union member.

The tribunal heard several such examples where the claimant took exception to what he perceived as criticism of him or his work without any consideration of whether or not it was merited or from whom it came.

We formed the view that the claimant did not fully appreciate his position within a bureaucratic hierarchical organisation and took offence where none was intended.

On 11 November 2004 after another difficult meeting with Mr Devine, the claimant telephoned Ms Meehan and informed her that he was not happy working with Mr Devine. She advised him to put his complaint in writing which he did in a memo headed 'Personal Grievance'. This said that his working relationship with Mr Devine was 'untenable' and sought a meeting with her in 'order to resolve this to everyone's satisfaction'. Unknown to the claimant, Ms Meehan asked Mr Peel for advice and he in turn sought same from Mr Mason. The first indication the claimant had that the letter had been received was when Mr Bogues, another Senior Youth Worker, arranged to meet him because Ms Meehan was off sick.

In his evidence to the tribunal, the claimant described this letter and the meeting as having taken place under the respondent's harassment policy. He said that he had taken out the documentation he had been given on induction and that when he read the definition of harassment, he believed it covered what he was experiencing. The tribunal did not agree with this assessment. The claimant said he had not read the Grievance Procedure. The tribunal noted that at earlier meetings, the claimant had said he was familiar with the respondent's procedures and knew the proper channels through which to air his problems.

At a meeting with Mr Bogues on 23 November 2004, the claimant and Mr Devine agreed that a good working relationship had to be maintained for the benefit of staff and young people using the Centre. They agreed to move forward and develop a working relationship based on mutual respect by holding a series of 6 meetings to address key components such as good communication and agreed action plans. These meetings were to be additional to their regular Supervision and Support meetings.

The first three meetings passed without any apparent difficulty but the meeting on 15 December 2004 ended with the claimant walking out and declaring that he could not work with Mr Devine. The two men met again next day to complete the agenda but during this meeting, the claimant again accused his manager of being confrontational and aggressive. He used the phrase 'long runs the fox' which Mr Devine found unacceptable and threatening. The claimant also said he would 'go to the top' to change supervisor. In spite of this exchange, Mr Devine agreed to cover a shift for the claimant, hardly the action of an aggressive bully.

When asked by Counsel for the respondent to give his reason for his reactions on this and other occasions by explaining what was wrong with what had been said, the claimant said it was because of the way he had been spoken to. The tribunal found the actions of the claimant to have been inappropriate and unreasonable in all the circumstances.

Both men agreed on 20 December 2004 to have one last effort to resolve the situation.

The tribunal accepted Mr Devine's evidence that he had made it clear to the claimant that he was no longer prepared to allow the situation to continue and would have preferred for his own welfare to have called formally for Board intervention. Again we found that this was not the action of the type of person that the claimant alleged Mr Devine to be.

On her return to duty in January 2005, Ms Meehan sought to raise with the claimant her concerns about problems he had had in the summer with two female colleagues. This was in order to ensure lessons had been learned and there would be no similar difficulty in future. She also sought to have a Child Protection issue investigated formally to identify why a young female had been left unsupervised by the claimant in the company of an unsuitable male when an incident occurred. Again, this was in order to ensure lessons were learned. There was no suggestion of any action arising from these matters. On 10 February 2005, Mr Peel authorised a formal investigation of this latter incident. The tribunal find that these were legitimate managerial concerns and not unreasonable actions taken to undermine him as suggested by the claimant.

The claimant had a further altercation with Mr Devine on 2 February 2005. Mr Devine wrote to Ms Meehan to formally request support and direction from the Board in carrying out his duties. He wrote again on 15 February 2005 to request urgent assistance in the supervision and management of the claimant. In response, Ms Meehan wrote to the

claimant to ask him to attend a meeting on 18 February with her, Mr Devine and Mr Bogues.

Unknown to Mr Devine, the claimant already had met with the Personnel Manager at PBNI and made enquiries about his early return. Having secured agreement, the claimant tendered his resignation and suggested a leaving date at the end of March 2005. The letter was dated 14 February 2005 but Mr Devine had not received it when he wrote to Ms Meehan the following morning.

On 17 February another incident took place during which the claimant again objected to Mr Devine raising a management issue. He said that if Mr Devine had spoken to him like that in a bar, he 'wouldn't be standing long'. When asked to come to the office, the claimant said he would only go if he was dragged there. Mr Devine was very shaken and feared for his personal safety and welfare. He reported to Ms Meehan that he had been threatened at work by the claimant and was going home. He said that he was not prepared to return to the Centre until the matter had been dealt with.

Ms Meehan reported what had happened to Mr Mason. This was the first time that he learned of the ongoing problems between these two employees. When Mr Peel had sought his advice earlier, no names or other detail had been provided. Ms Meehan informed Mr Mason that the claimant had tendered his resignation and intended to return to the PBNI. After informing Mr Stanton Sloan, the most senior officer on duty that day, that a threat had been made, Mr Mason spoke to Ms Meehan and advised her to reassure Mr Devine. Mr Mason then spoke to the claimant who was unaware that Mr Devine had left the building. Mr Mason advised the claimant that Mr Devine believed he had been threatened. The claimant knew that this referred to his comment about a bar but alleged that Mr Devine had twisted his words and that no threat had been made.

The claimant was crying and very upset. Mr Mason explained that there would have to be an investigation but also informed the claimant that he was aware that he had submitted his resignation. He suggested that if the claimant left that day there would not be any need for any investigation. The claimant's salary would be paid in lieu of notice. The claimant raised the matter of his complaint about Mr Devine and was told that if he left there would be no further action taken in that matter either. Mr Mason's evidence to the tribunal was quite clear that the termination of the claimant's employment on that day was by mutual agreement. Mr Mason advised the claimant that he should put all these matters behind him and return as planned to his substantive post. The tribunal find that, on the balance of probabilities, this is a true reflection of what took place at that time.

LEGAL PRINCIPLES AND CONCLUSIONS

Article 127 of the Employment Rights (Northern Ireland) Order 1996 sets out the circumstances in which an employee is dismissed. These are where his contract of employment is terminated by the employer, a fixed term contract is not renewed or the employee terminates the contract of employment "…in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct."

The tribunal considered all the findings of fact set out in detail above and find that none of the circumstances set out in Article 127 apply.

In this case, the claimant had already given his resignation and indicated that he wanted to leave his employment. When the incident of 17 February 2005 took place, the respondent and the claimant negotiated mutually acceptable terms to terminate the employment forthwith. For that reason, the tribunal find that the claimant was not dismissed from his employment and his claim is dismissed.

As already stated, the tribunal was not without sympathy for the claimant. In reaching our conclusion we do not seek to suggest we found him to be untruthful but rather that we found that his perception of Mr Devine and other senior officers of the respondent to have been incorrect, unfair and unreasonable. He formed a view of Mr Devine in April 2003 that was in our view unjustified and allowed that to distort their working relationship in a most destructive way.

The tribunal also wish to record our disappointment with the manner in which this unhappy state of affairs was allowed to fester with so much distress for these two employees. We hope that the statutory procedures will provide a more satisfactory and timely means of addressing such disputes in future. We also note that the claimant was advised on more than one occasion to put this experience behind him when he returned to PBNI. That was good advice. We hope he can now do so.

Chairman:

Date and place of hearing: 3, 4, 6 , 7 and 11 April 2006, Belfast.

Date decision recorded in register and issued to parties: