Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 833/05

CLAIMANT: Oonagh McGarry

RESPONDENT: T J McGurran Limited

DECISION

It is the unanimous decision of the tribunal that the claimant was not constructively dismissed.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr McCusker

Mr Lyttle

Appearances:

The claimant was represented by Mr Tom Stafford, Campbell Stafford Solicitors.

The respondent was represented by Mr Sheridan of Peninsula Business Services Limited

The tribunal amended the title of the respondent to T J McGurran Limited as this was the actual employer of the claimant. The Errigle Inn is a trading name of the respondent.

REASONS

1. The sources of the evidence

The tribunal heard evidence from the claimant on her own behalf and from Darren Troland, Gregory Greenan and Fiona Patmore. On behalf of the respondent the tribunal heard evidence from Caroline Duffy, Stewart McKeown, Phillip McGurran (Senior) and Phillip McGurran (Junior).

2. The claim and the defence

In her claim to the tribunal the claimant claimed that she had been constructively dismissed by the respondent. The respondent denied that the claimant had been constructively dismissed or indeed dismissed at all.

3. The issues

1. Was the claimant dismissed by the respondent?

2. Did the respondent reach the claimant's contract of employment? If so was this a breach that went to the root of the contract? Did the claimant leave a response to the breach? Did the claimant delay in leaving in response to the breach?

4. Analysis of evidence

In general the tribunal preferred the evidence given on behalf of the respondent as it appeared too consistent between the witnesses of the respondent. The evidence given on behalf of the claimant by Darren Troland and Gregory Greenan was regarded of considerably less value by the tribunal because there was nothing in the evidence to suggest that they were able to give any evidence about whether or not there was an agreement on the part of the claimant with Mr Phillip McGurran Senior, to take the holiday and thereafter return to work in exactly the same position. In turn, this greatly diluted the creditability of the claimant's evidence. Miss Patmore, a Civil Servant, was unable to give any direct evidence about the core issue of whether or not there was a fundamental breach of the claimant's contract of employment.

5. Findings of fact:

(i) The claimant worked for the respondent as waiting staff in The Errigle Inn. Initially, the claimant was studying and worked a few hours a week for the respondent but thereafter her hours increased to the point where, if she was available for work and there was work available, she was offered it by the respondent. The hours depended on demand that there were no fixed hours or fixed days and from time to time the claimant did refuse work offered. Although her job was mainly as waiting staff in the restaurant, she also worked in every other part of The Errigle Inn and was regarded as a good all-round employee.

(ii) In the latter half of 2004, the claimant decided to go travelling mainly in America and Australia and decided that she needed to take seven weeks unpaid leave from her job to do so. She did speak to Mr McGurran Senior, the Managing Director of the company about this and he agreed to this in principle, but he asked for her to confirm the actual dates to him before she departed. It was common case that the claimant would have a job to come back too.

(iii) There was a practice that the employees even up to supervisor and restaurant manager level recorded the dates of their absence in the diary which was used for restaurant bookings. The claimant was asked by Mr McGurran to confirm the dates of her absence to him, but she instead entered them in the restaurant bookings diary. She regarded this as her method of communication of her absence dates to the respondent and the fact that she had utilised this practice as authorising her absence. The respondent gave evidence that it was unaware of this practice and did not regard the entry of the dates of the absence in the restaurant bookings diary as being in any way an official record or an official means of notification of absence. The tribunal finds that there was no existing procedure for recording authorised unpaid leave.

(iv) Mr McGurran Senior was only aware of the claimant's absence approximately one week after she had left on her trip.

(v) The claimant returned to Northern Ireland in or around the 15 April 2005 and contacted the respondent to arrange her return to work.

(vi) In or around the time of the claimant's telephone call to the respondent, a fellow worker called Paul Madine passed a remark to members of the respondent's workforce suggesting that there was some doubt whether or not the claimant would actually get her job back. Paul Madine did not give evidence to the tribunal and there was insufficient evidence as to the reason why he said this and his authority for saying this, so the tribunal was not able to make any finding of fact in relation to this part of the case.

(vii) The claimant spoke to the restaurant manager who told her that she would have to speak to Phillip McGurran Senior about her return. The claimant was put through to Mr McGurran Senior and indicated that she wanted to return to work on the 18 April 2005. Mr McGurran Senior told her that he would have to consider this and would get back to her over the weekend.

(viii) Co-incidentally on 18 April 2005 another employee resigned from her job with the respondent, and the respondent Mr McGurran Senior considered that this would be an opening which the claimant could slot into very easily because of her widespread experience in working in all the aspects of the respondent's business.

(ix) At the time of the events which gave rise to the claim by the claimant and indeed as at the date of hearing, the employees of the respondent did not have written particulars of employment. Additionally there were no written procedures in respect of grievances or disciplinary procedures.

(x) This is a breach of Article 33 and Article 35 of the Employment Rights (Northern Ireland) Order 1996.

(xi) There followed a sequence of correspondence between the claimant and the respondent. The claimant wrote to Mr McGurran on 18 April 2005 indicating that she considered that her unpaid leave had been agreed with him and she made it clear by writing it in the restaurant diary. She regarded the telephone call between herself and Mr McGurran of 15 April 2005 as a breach of her contract of employment leaving her feeling betrayed and stressed. She contended that her dismissal was due to "personal reasons" which she did not specify. Mr McGurran wrote on the same day to her saying that she misunderstood the telephone conversation of 15 April 2005 and stated that he said he would look at the situation and contact her. The letter went on to say that a position had become available and he would like the claimant to report to him before starting on 19 April 2005 in The Oak Lodge. This letter was hand-delivered by Phillip McGurran Junior to the claimant's house. On 19 April 2005 the claimant responded to it saying that she could not return to work as all trust and confidence had been broken and this was regarded by her as a fundamental breach of her contract of employment. She contended that the offer of this position was confirmation that she was unemployed. She confirmed that she would not be reporting for work as requested on 19 April 2005. The respondent wrote on 21 April 2005 urging the claimant to re-consider her decision, indicating that contract of employment had never been terminated by the respondent and inviting her to come in with a colleague to discuss any problems or grievances. The claimant did not do so and by letter dated 5 July 2005 the claimant was sent her P45 and P60 by the respondent.

(xii) In or around 4 May 2005 Phillip McGurran Junior had a conversation with Fiona Patmore, a Civil Servant, working in a Jobs and Benefits Office who had contacted the respondent for information about the claimant. Miss Patmore contended that Phillip McGurran Junior had indicated that the claimant had been dismissed but had appealed her dismissal. This was not the case made by the claimant before the tribunal and as such, the tribunal did not regard this evidence as being of any value in establishing whether or not there had been a fundamental breach of the claimant's contract of employment leading her to regard herself as dismissed. Therefore the tribunal discarded this evidence.

6. Short statement of the relevant applicable principle of law

It is established law that if an employee suffers a breach of contract which is fundamental going to the root of the employment relationship between employer and employee, the employee is entitled to regard himself or herself as being constructively dismissed by the employer. To successfully establish a claim for constructive dismissal, the employee must also leave in response to the breach and not delay in so doing.

7. The tribunal's conclusions having applied the relevant principle of law to the facts found:

(i) The tribunal did not regard contents of the telephone conversation of 15 April 2005 as being a fundamental breach of the claimant's contract of employment by Mr McGurran Senior. When asked to explain why the claimant felt hurt and betrayed, she was unable to give any clear evidence to the tribunal of precisely what she found objectionable in the telephone conversation with Mr McGurran Senior. She said that she brushed her off as if he did not know her and did not immediately allow her to return to work. It was common case that he said he would need a couple of days to look into the situation. The claimant also indicated that she found Mr McGurran Senior's tone offensive. The tribunal finds that it is more than likely than not on the balance of probabilities that the version of events given by Mr McGurran Senior was correct. It was common case that Mr McGurran Senior agreed to contact the claimant. The tribunal can see no reason why he would have agreed to do so if it was really the case that he did not want the claimant to return to work for him. The tribunal finds Mr McGurran Senior's explanation that he wanted to look into how best to fit the claimant in to be credible. There was a suggestion by Mr Campbell that the rotas would not have been made up at the time the claimant had her conversation with Mr McGurran Senior and this would have meant that Mr McGurran Senior's need for time was not correct. The tribunal received a number of conflicting versions of evidence concerning the times the rotas were made up for work in the restaurant. The tribunal does not consider that it is necessary to make a finding on this issue and is unable to consider Mr McGurran Senior taking two days to look into the situation as a fundamental breach of the claimant's contract of employment. It was not disputed that the respondent at the time in question employed approximately 50 persons, and any employer with that number of employees would need to take time to look into what arrangements have been made and what scope there was to fit a returning employee into those arrangements.

(ii) The claimant in her correspondence with the respondent never made the case that her grievance was that she was not automatically given her job in the restaurant back. This only became clear when she gave evidence to the tribunal. Furthermore, the claimant accepted that had she found out that she was going to earn approximately the same salary in the Oak Lodge as she had previously earned in the restaurant, she would in all likelihood have accepted this new position. Additionally, she pointed out that had she known that her three years' service with the respondent was protected and that she would not be starting again from scratch to accrue the right not to be unfairly dismissed, that would also have swung the decision in favour of returning to the respondent.

(iii) The tribunal finds that the respondent offered the claimant the opportunity to come in to discuss her grievances, and considers it more likely than not on the balance of probabilities that if she had done so and had received the reassurance she required, the claimant would have returned to work for the respondent. At a late stage in the evidence the claimant contended that she found the McGurrans to be intimidating and this was a reason why she did not want to have a face to face meeting with them. The tribunal does not regard this as a satisfactory explanation because she had the opportunity of taking a colleague along to the meeting who could presumably have given her the necessary support if it really was the case that she found the McGurrans intimidating. This being the case, the claimant could give no reason why she turned down the opportunity. The tribunal also noted that the claimant gave Mr McGurran three telephone numbers at which to contact her when he had looked into the situation. The tribunal finds it hard to believe that the claimant could really have been as humiliated as she contended if this was the case.

(iv) The tribunal has looked at the note written by Mr McGurran Senior indicating that he offered the claimant a position in T J McGurran Limited on 19 April 2005 on a full-time basis of 39 hours per week. The tribunal has disregarded this note in coming to its decision. It was unclear precisely for what purpose this note was generated. It was plainly not a record of what actually happened because the claimant did not have a meeting at that time with the respondent, therefore the tribunal has regarded this item as being of absolutely no assistance in reaching its decision.

(v) Mr Campbell argued that the tribunal should consider an adjustment of award against the respondent and in favour of the claimant on the grounds of non-completion of the statutory grievance procedure under Article 17 of the Employment (Northern Ireland) Order 2003. The tribunal does not regard this argument as have any merit. The claimant herself indicated that she wished the procedure to be dealt with in writing and did not wish to attend the meeting with the respondent. The modified procedure Chapter II, Paragraphs 9 and 10 of the Order provides that the employee must set out the grievance and the basis for it in writing and send this to the employer and the employer must set out his response in writing and send it to the employee. Whether or not the respondent actually intended to comply with the statutory procedure, the tribunal finds that the two step procedure set out in the 2003 Order was complied with. There was a statement of grievance and there was a response to it. The tribunal makes no ruling on the issue of whether the modified procedure was the appropriate procedure to be followed in this case. Where an award is made in favour of an employee non-compliance with the appropriate statutory procedure can affect compensation awarded. In this case, the tribunal does not consider that the claimant has established that the respondent's actions towards her were sufficient to enable her to regard herself as having her contract of employment fundamentally breached. As this is the case, it is unnecessary for the tribunal to make further findings in relation to whether or not she left in response to the breach and whether or not she delayed in so doing.

Chairman:

Date and place of hearing: 11 January 2006, 2 and 9 February 2006, Belfast

Date decision recorded in register and issued to parties: