Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/1642_07IT.html
Cite as: [2008] NIIT 1642_07IT, [2008] NIIT 1642_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1642/07

CLAIMANT: James Connor Simmons

RESPONDENT: Temple Security

DECISION

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

Constitution of Tribunal:

Chairman: Mr M Davey

Members: Mr Kearney

Mr Edmont

Appearances:

The claimant was represented by Mr R Coughlan, Barrister-at-Law, instructed by E JLavery & Co, Solicitors.

The respondents were represented by Mr T Sheridan of Peninsula Business Services Ltd.

REASONS

The claimant's claim indicated that he considered himself to have been dismissed in circumstances arising out of an incident which took place on 11-12 March 2007.

There was little disagreement about most of the relevant facts. The claimant had been employed as a Security Officer in or about November 2003, originally by a firm named Lockhart Security which then was subsequently taken over by the respondents. There had been no complaints about his work and he was regarded as a good employee. The site on which he was working belonged to F G Wilson Engineering. On the night of 11 March 2007, a Sunday, the claimant was on duty in the guard room at the site. He allowed ingress to an employee of F G Wilson in his vehicle who explained he had to see his line manager. There was a child in the car whom the claimant thought was an adult. He was on the telephone at the time and did not see the child. Allowing ingress to a child was against the rules. One of the employees of F G Wilson came to the hut and informed the claimant of what had happened. The claimant knew then that there was a problem and that he had made a mistake. It had happened to his brother the week before. He made out a report on the incident and phoned his immediate line manager who came to the site.

The evidence of the claimant and the respondent differed at this point. According to the claimant his immediate line manager, Mr McAllister, said that the claimant's job could be in jeopardy. The claimant asked if it was. Mr McAllister said it could be. The claimant asked whether, if he lost his job, there would be any more work for him. Mr McAllister said it would probably be part-time work of some 48 hours per week but he could not guarantee the 48 hours. This lack of any guarantee, the claimant said, was crucial. If there had been a guarantee of 48 hours per week he would have been happy.

According to Mr McAllister this extended conversation did not take place on Sunday. Whether or not the claimant was retained on the F G Wilson site was not a decision for him but one for the Northern Ireland manager following discussion with F G Wilson. According to Mr McAllister he had phoned the claimant on the Monday, following a demand from F G Wilson that the claimant be removed from the site, to tell him that employment would be available as a full-time relief guard. No details were discussed during the course of this Monday phone call. The details were discussed at a subsequent phone call on the Wednesday when it was indicated to the claimant the nature of the work which would be involved and that at least 48 hours per week could be guaranteed.

There was no dispute that following the meeting with Mr McAllister on the Sunday night the claimant finished his shift and went home. On Monday morning at about 10.00am he received a telephone call from the Northern Ireland manager, Mr Symington, telling him that he had been put off the site and the claimant asked if this was about the previous night's incident and it was confirmed that it was. Mr Symington stated that he would phone the claimant in a couple of days to let him know if he could get his job back.

The claimant applied for Job Seeker's Allowance on the Monday. He subsequently raised a grievance dated 2 April 2007 with the respondent. The grievance letter described the details of the incident which took place on the relevant Sunday night; it described the visit of the F G Wilson employee previously mentioned; it referred to the incident report completed by the claimant and to the telephone call from Mr Symington; it made no mention of any involvement or statement by Mr McAllister.

As regards the detailed conversation with Mr McAllister concerning the prospects and details of alternative work for the claimant the tribunal considers the respondent's evidence to be more convincing. In the immediate aftermath of the incident the claimant's evidence indicates that at that time only the possibility of his being removed from the site was being considered. He stated himself that he asked if his job would be in jeopardy to which the response was that it could be. On pressing Mr McAllister, according to his own evidence, he got the same reply, namely that it could be. It was, therefore, not certain at the time what the outcome would be and, consequently, that it was more likely that details of alternative possibilities would be dealt with later. Furthermore, again on the claimant's evidence, in his discussion with Mr Symington the possibility of his being allowed back on site had not been totally ruled out. The tribunal also considers that if the matter had been discussed in detail with Mr McAllister on the Sunday, as the claimant stated to the tribunal, then, given the crucial importance which the claimant stated he attached to the guaranteed number of hours available, that discussion would have been mentioned in the letter of grievance dated 2 April 2007.

It was conceded on the part of the claimant that the claimant had impliedly resigned on the Monday by applying for Job Seeker's Allowance. The issue for the tribunal, therefore, was whether, at the time of his application for Job Seeker's Allowance, there had been a breach of contract by the employer of sufficient importance to justify the implied resignation. It was submitted that at that time he was entitled to assume that he was no longer going to be employed on a full-time basis and that the change in the nature of his employment amounted to a fundamental breach of his contract of employment. In the light of the facts found as set out above the tribunal does not agree. At the time he applied for Job Seeker's Allowance the most he could have known on the basis of the telephone calls with Mr Symington and Mr McAllister was that the possibility of his returning to F G Wilson's site had not been ruled out and that, even if it were, there would be alternative work available the exact nature and hours of which had not at that time been defined. There was no solid factual basis on which the claimant could draw any firm conclusion as to precisely what his future might hold. He was still employed; his future was being considered. In the event an offer was subsequently made. Accordingly there could not have been any breach of the employment contract in relation to his hours of work at the time of his resignation. In establishing a constructive dismissal it is necessary to establish a fundamental breach of a contract term. This was the only breach alleged and as the tribunal finds that to be no breach the claim must fail.

Chairman:

Date and place of hearing: 13 June 2008, Belfast.

Date decision recorded in register and issued to parties: