Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2535/06

CLAIMANT: Daniel Shopland

RESPONDENT: Iceland Foods Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that:

(i) the statutory exceptions referred to at paragraph 2(1) of the decision do not apply to the claimant;

(ii) the standard grievance procedure was the appropriate procedure;

(iii) the letter of resignation dated 14/8/06 does not constitute a grievance in writing; and

(iv) the claimant's claim for constructive dismissal is dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant was represented by Mr Warnock, Barrister-at-Law, instructed by James T Johnston & Co, Solicitors.

The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

1. On 10 November 2006 the claimant presented to the tribunal a claim for constructive dismissal. The respondent contended that the claimant did not raise a grievance in accordance with the statutory grievance procedure.
2. The issues, as agreed by the parties, were as follows:-

(1) Whether any of the statutory exceptions applied in relation to the grievance procedure under Regulations 6 and 11 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (the 'Regulations').

(2) If the statutory exceptions do not apply, was the appropriate procedure the standard grievance procedure or the modified grievance procedure?

(3) Pursuant to the resolution of Issue (2), did the claimant's letter of resignation dated 14 August 2006 constitute a grievance in writing under Article 19 of the Order?

(4) In the event of the tribunal finding that the claimant had lodged a proper grievance, had he waited for 28 days before lodging his claim with the tribunal pursuant to Article 19(3)(b) of the Employment (Northern Ireland) Order 2003 (the 'Order').

3. The tribunal was assisted by bundles of documents presented to it by both parties and by oral evidence given by the claimant.
4. Having carefully analysed the evidence insofar as same is relevant to the issues before it the tribunal made the following findings of fact:-

(i) The claimant was employed by the respondent from January 1990 and worked as a Store Manager up until his resignation on 14 August 2006. The tribunal was shown correspondence from the claimant's GP dated 6 June 2006 which refers, inter alia, to 'what appears to be the development of a depressive illness'. The tribunal was also shown a print-out of the claimant's past medical history and reference was drawn to the medication prescribed on 27 March 2006 and 5 June 2006 for what the claimant stated was stress and depression. Sickness certificates signed by Doctor McIvor dated 19 June 2006 and 31 July 2006 refer to depression and work-related stress respectively. The claimant's medical condition improved after the end of July 2006. Doctor McIvor advised him on 31 July 2006 to see a solicitor. The claimant visited his solicitor on or about 2/3 August 2006. On 10 August 2006 he attended an interview with Marks & Spencer for a management position. He learned that he was successful on 11 August 2006 and on 14 August 2006 resigned from the respondent's employment. The claimant started work with Marks & Spencer on 11 September 2006 being the date on which his solicitors wrote to the respondent raising issues relating to an unlawful deduction of the claimant's salary for the period 1 – 4 August 2006, the deduction of a company loan of £81.00 and alleging failure to discharge three months salary.

(ii) The claimant had handed his letter of resignation on 14 August 2006 to Stephen McCavery, Area Manager for the respondent. He had been responsible for conducting an investigation into disciplinary matters concerning the claimant. During a disciplinary hearing held on 21 July 2006 the claimant had raised the issue of his health and the disciplinary panel indicated that it wished to obtain a medical report from his General Practitioner. The claimant was however unhappy to do this. He had had a telephone conversation with Mr McCavery on 4 August 2006 and spoke to him for about five minutes on 14 August 2006 but had no recollection of having raised a grievance or complaint with him. The claimant's case was that the resignation letter constituted a proper written grievance. The letter of resignation directed to Mr McCavery states as follows:-

"It's with deep regret that I hereby announce that I shall be handing in my notice with immediate effect. I feel I have no option in doing so due to recent events. I would like to respect my three months notice period, however feel this is impossible. If you can sort out all monies owed to me as well as Bejan holiday pay I would be grateful. I would like to take this opportunity in thanking you Stephen and would like to thank Iceland in giving me 20 years service with them and wish you and them all the best in the future

Yours faithfully

Daniel Shopland."

(iii) The tribunal also had before it a Notice for Additional Information to claimant dated 26 February 2007 the first paragraph of which states as follows:-

"1. Give full particulars of each and every respect in which it is alleged that the claimant was constructively dismissed including:-

(a) each and every act or omission by the respondent which it is alleged amounted to a fundamental breach of the claimant's contract of employment by the respondent;

(b) the date or dates of any such alleged acts or omissions;

(c) the identity or identities of the persons alleged to be responsible."

The reply dated 2 April 2007 states, inter alia:-

"The claimant resigned as a result of the pursuance and conduct of inappropriate and unreasonable disciplinary and/or investigative action taken against him by the respondent in and around May to August 2006, despite the respondent's knowledge that the claimant was suffering from serious ill-health at all relevant times. The claimant relies upon the aforementioned breach of contract and further and/or in the alternative relies upon the background of a series of incidents that took place during 2006 that resulted in a fundamental breach of the claimant's employment contract by reason of the breach of the respondent of the implied duty of mutual trust and confidence between employer and employee. The claimant will further rely upon the 'last straw' doctrine in this regard and will rely upon the continuing series of acts and/or omissions committed by the respondent over the period between January 2006 and August 2006 that taken cumulatively amount of a fundamental breach of the employment contract and which forced the claimant to resign from his position as Store Manager in August 2006. It is the claimant's case that he was overworked; that the Antrim Road store was understaffed and that he was subject to unjust allegations and inappropriate and disproportionate discipline from his employer. It is clear that the claimant suffered from depression and stress as a result of his work environment. The respondent was further in fundamental breach of the employment contract by, inter alia, apportioning the claimant an unduly burdensome workload and placing the claimant under undue stress in the workplace; the failure to provide sufficient and reasonable support in terms of management and/or the provision of support personnel and the failure to treat the claimant, as a long-serving employee, with dignity and consideration in all the circumstances."

The respondent's case was that the complaint made in the replies could not be drawn from the letter of resignation but the claimant contended that his employer knew of his medical situation and what the recent events referred to in the letter of resignation were. In particular emphasis was laid upon the words in the letter of resignation 'I feel I have no option in doing so due to recent events'.

5. The tribunal heard submissions from Mr Warnock and Mr Grainger. Mr Warnock referred to Article 19(2) and (3) of the Order together with Paragraph 6 and 9 of Schedule 1 thereto relating to the standard and modified grievance procedures respectively. He also referred the tribunal to the definition of 'grievance' in the Regulations. He also referred to Regulation 2(2) and to Regulation 6(4) and (7) of the Regulations together with Regulation 11(1) to argue that it was not reasonably practicable under Regulation 6(4)(c) or in relation to Regulation 11(3)(c) not practicable for the claimant to comply with the grievance procedure. He also relied on Regulation 11(3)(a) to contend there were reasonable grounds to believe that commencing the procedure or complying with the subsequent requirement would result in a significant threat to the claimant in terms of health being further affected. In the alternative he urged the tribunal to find that the claimant's letter of resignation was a proper written standard grievance under Article 19 of the Order. Reference was made, by both parties, to the cases of Canary Wharf Management Limited v EDEBI [2006] IRLR 416, Shergold v Fieldway Medical Centre [2006] IRLR 76, Galaxy Showers Limited v Wilson [2006] IRLR 83, The Industrial Tribunals decision in Catherine Carson v Brooklands Nursing Homes Limited [Case Reference No: 97/06] and an extract from Harvey on Industrial Relations and Employment Law Division T at para 300 et seq. pertaining to the relevant issues.

Mr Grainger urged the tribunal to reject the argument that the claimant could avail of any of the exceptions in relation to lodging a grievance in writing and in that context submitted the following:-

(i) The evidence from the claimant that the worst period of his illness was from May to July 2006. This predated the submission of his letter of resignation.

(ii) The claimant was able to attend disciplinary hearings and did not raise an objection that he was not fit to do so.

(iii) The claimant had visited his GP and his solicitor before submitting the letter of resignation. Contrary to his evidence he was clearly sufficiently competent to leave his house and attend to these matters.

(iv) The claimant had applied for a management position within Marks & Spencer and had been interviewed a relatively short period before submitting his letter of resignation. He had performed well enough to be appointed to the position of Manager a matter of days before his letter of resignation. This, Mr Grainger submitted, militated against any suggestion that it was not reasonably practicable or practicable to follow the grievance procedure.

(v) He was able to submit his letter of resignation.

(vi) No medical evidence had been furnished by the claimant in order to support his contentions and therefore there was no reasonable basis for the tribunal to conclude that the claimant could bring himself within Regulation 6(4) or the general exemption in Regulation 11(3), of the Regulations.

Mr Grainger further urged the tribunal to consider the context of the events immediately preceding the letter of resignation, and the fact that he had not mentioned the complaint/grievance to Mr McCavery when he spoke to him on 14 August 2006 and earlier in a telephone conversation on 4 August 2006. Referring to the response entered by the respondent he further urged the tribunal to note that after his third suspension the claimant had stated that he would not go back to work with the respondent. Referring to the various cases (Supra) he urged the tribunal to find that the letter of resignation which thanked Mr McCavery and Iceland could not reasonably be construed as a written grievance as it carried no suggestions of a complaint. It was therefore reasonable for the employer, in light of the preceding events, to accept it as a resignation and not as a written grievance. The claimant had 'jumped before he was pushed'. He also relied on the solicitor's correspondence of 11 September 2006 which did not refer to a grievance or constructive dismissal and raised financial matters only.

6. The law in relation to the issues before the tribunal is adequately set out in the preceding paragraph and in the legislation and case law referred to therein.
7. The tribunal, having carefully considered the evidence together with the submissions and applied the findings of principles of law to the findings of fact concludes as follows:-

(i) The tribunal is satisfied on the evidence that the claimant cannot avail of the statutory exemptions referred to in Regulation 6 and 11 of the Regulations. It also finds that the appropriate grievance procedure was the standard procedure.

(ii) The tribunal agrees with Mr Justice Elias in the case of Canary Wharf Management Limited v EDEBI, (Supra) when he states at Paragraph 41:-

"These Regulations can operate in a harsh way and it gives me no pleasure to say that I find that the tribunal lacks jurisdiction to deal with the matter in this case. But as I have said, we must bear in mind that the employers also suffer an adverse consequence if one does not read the letter fairly and assess whether in all the circumstances it can properly and reasonably be said to have raised a complaint which has subsequently been put before the Employment Tribunal."

The tribunal therefore asked itself as to whether in all the circumstances of this case it could properly and reasonably be said that, in his letter of resignation the claimant had raised a complaint which he subsequently put before the industrial tribunal. The tribunal answers this question in the negative. The fourth issue before the tribunal is no longer relevant. The tribunal is prevented from hearing the complaint of constructive dismissal by virtue of Article 19(6)(b) of the Order and the claimant's claim is therefore dismissed.

Chairman:

Date and place of hearing: 18 April 2007, Belfast

Date decision recorded in register and issued to parties: