Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/2003_07IT.html
Cite as: [2008] NIIT 2003_7IT, [2008] NIIT 2003_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2003/07

CLAIMANT: Bessie Ramsey

RESPONDENT: Leeanoy Ltd T/A Video City

DECISION

The unanimous decision of the tribunal is that the claimant's claim of constructive dismissal is dismissed.

Constitution of Tribunal:

Chairman: Mr I Wimpress

Panel Members: Mr Dunlop

Mr Hanna

Appearances:

The claimant was represented by Mr William Watters of H.O.P.E.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Breslin & McCormick Solicitors.

The claimant's claim is brought in respect of her alleged constructive dismissal arising from her employment with the respondent.

Sources of Evidence

The tribunal heard evidence from the claimant, Mr Benjamin Smyth and Mr Ivan McCombe.

Issues

The sole issue in the case was whether or not the claimant was constructively dismissed by the respondent.

The Claim and the Response

It is common case that the claimant was not dismissed by the respondent and as appears from paragraph 7.1 of the claim form and the grievance letter sent by the claimant to the respondent in late October 2007, the claimant was complaining of constructive dismissal. The letter in question reads as follows:-

"I Bessie Ramsey, a previous member of staff, am considering taking Video City to an Industrial Tribunal.

It is my belief I was constructively dismissed after five years in your employment after a number of events that happened in the Video City premises and failure to manage the circumstances involving, staff, rules and regulations. I await your reply."

The response filed on behalf of the respondent stated that the claimant resigned voluntarily and that the respondent neither sought nor asked for her resignation.

The facts

There was little of a factual nature in dispute between the parties. The claimant was employed by the respondent as a manageress at its premises at 28 Church Street, Antrim. She had commenced employment with the respondent in August 2002 as a member of counter staff and had worked her way up to the post of manageress. Mr McCombe was the managing director of Video City and Mr Smyth was the interim general manager. Mr Smyth's role was to improve the performance of the business.

On 5 August 2007 the claimant was assaulted in the Video City premises in Antrim by Marianne Murphy, a member of staff.

On 6 August 2007 the claimant attended a managers' meeting at which Mr McComb instructed all managers to review the sales of staff to see what could be improved, to boost sales with the help of staff and not to keep staff who were not pulling their weight. Mr McCombe also told the claimant not to worry about Marianne Murphy as she had left.

On 7 August 2007 Marianne Murphy entered Video City premises in Antrim and was abusive to Mr McCombe as a result of which he barred her from Video City premises.

On 13 August 2007 Marianne Murphy was abusive to the claimant in Antrim town centre.

On 15 August 2007 Mr McCombe phoned the claimant about a solicitor's letter that he had received in respect of Marianne Murphy in relation to pay that was due to her.

On 24 August 2007 the claimant told Mr McCombe that she was thinking of resigning. This prompted Mr McCombe to ask Mr Smyth to meet with the claimant and discuss the matter with her. It was common case that the claimant had threatened to resign on a number of previous occasions.

On 27 August 2007 Mr Smyth phoned the claimant to arrange a meeting on 29 August 2007. The claimant subsequently phoned in sick and said she was unable to attend the meeting.

On 29 August 2007 Mr Smyth phoned the claimant at approximately 4.00 pm and advised her that a complaint had been made about her by Jenny Allen. The claimant regarded this as an allegation of bullying and having previously cancelled the meeting, demanded to meet with Mr Smyth that night.

The meeting between the claimant and Mr Smyth took place on 29 August 2007 at the Comfort Hotel, Antrim. There was no significant dispute between the claimant and Mr Smyth as to the matters discussed at the meeting. According to the claimant the meeting commenced with a discussion of a bullying allegation made by Jenny Allen's mother who had complained about notes being left for her daughter including one complaining about mistakes. The claimant explained to Mr Smyth why she left the notes and he replied that the claimant should have spoken to her. The claimant explained that she had done so on a few occasions but Mr Smyth said that Mrs Allen wasn't making a big issue of it as long as he spoke to the claimant about it. The claimant was shocked that the issue was being brushed aside. Mr Smyth went on to talk about the future of the shop, the changes that were going to be made and whether the claimant was up to the challenge. The claimant said that she was but the staff were not. Mr Smyth went on to say that he needed staff that would pull their weight and do more selling as the claimant appeared to be the main seller. Mr Smyth told the claimant that it wasn't her job to be a seller but rather to delegate to other staff and get them to sell products. Mr Smyth told her that next year would be harder and that she would need to delegate more. Mr Smyth also raised the issue of the budget hours and queried why the store was running on 124 budget hours instead of 160 hours. The claimant stated that she was not aware of the change. A general discussion about staffing ensued. Mr Smyth made the point that staff needed to work more hours and wouldn't be one hundred percent committed if they were only working 4-5 hours. The claimant accepted that some staff didn't give one hundred percent and Mr Smyth responded that they should be got rid of. The claimant was uneasy about the prospect of getting rid of staff having previously been assaulted by a staff member. According to the claimant she then fell silent. Mr Smyth asked the claimant what her plans were and the claimant said that she was not sure. The claimant then asked Mr Smyth what notice she as a manager would have to give. Mr Smyth said two weeks but that there was no need to worry as the company would pay her notice pay in full and wouldn't require her to work her notice. Mr Smyth then asked the claimant what her plans were and the claimant fell silent again. Mr Smyth stated that they could meet up again in 48 hours and she could tell him then how she felt. The claimant said that she was crying during the meeting because Mr Smyth kept asking what her plans were and she thought that he wanted her to leave. The claimant felt that everything at the meeting was negative and that 48 hours was not going to change anything.

Mr Smyth's evidence was that he introduced the subject of the claimant leaving and said that they needed to understand why she was thinking of doing that. He thought that the claimant appeared to be under pressure and was concerned about her role in the development of the company. The claimant mentioned the trouble with Jenny Allen and being let down by her. Mr Smyth indicated that he had sorted it out with Ms Allen and encouraged the claimant to use verbal communication rather than leaving notes. According to Mr Smyth it was the claimant who raised the issue of what package she would be entitled to if she resigned. Mr Smyth accepted that he had interviews lined up in the shop and that perhaps he should have told the claimant about this but pointed out that she was off sick at the time. Mr Smyth denied undermining the claimant and indicated that he had had similar conversations with other store managers about weaknesses in their stores. Mr Smyth was not aware of the claimant crying during the meeting but did notice that her eyes were red and could see that she was tense.

The claimant did not remember saying that she was thinking of leaving but accepted that she did ask about her notice terms. While it is clear that Mr Smyth was keen to make improvements in the way that the business was run, there was no suggestion that the claimant was not pulling her weight and his only criticism of the claimant was that she should be delegating more to other staff. The claimant also accepted that she had told the respondent on a number of occasions that she was thinking of leaving and that she had done so again on 24 August. This was prompted by having to work a long weekend shift due to Ms Allen's refusal to work over the weekend.

After the meeting the claimant phoned the Video City store to see how things were and was told by Siobhan Rowan, a member of staff, that a girl had just come to the counter and said that she was there to be interviewed by Mr Smyth. The claimant told the tribunal that she was shocked that there were interviews going on in her shop without her knowledge. Mr Smyth could not recall carrying out any interviews on the evening in question and the claimant did not call any direct evidence to prove that he did. Mr Smyth produced his diary which contained entries in respect of job interviews later in the week but none on the night in question.

Later that evening the claimant met up with her older sister Mrs Paula Duffy who agreed to contact Mr Smyth on the claimant's behalf. She phoned Mr Smyth using the claimant's mobile phone and as there was no answer left a message on his voicemail as follows:-

"After carefully considering Ben's offer that she was to be paid her full two weeks' notice without working."

Mr Smyth maintained that he did not receive this message but in any event it was followed up with a resignation letter written by Mrs Duffy on behalf of the claimant in the following terms:-

"After careful consideration I Bessie Ramsey have decided that under the circumstances of our recent meeting that your offer of resigning without working my notice will be accepted. I would appreciate all due monies forwarded to me. Thank you for your co-operation".

The claimant told the tribunal that she had been thinking of putting in her notice when she left the hotel after reflecting on everything that was said at the meeting and the fact that interviews were going on in her shop. She claimed that this had made her position impossible.

The law

The authors of Harvey at D1[403] described four conditions that an employee must meet if they are to claim constructive dismissal:-

(1) There must be a breach of contract by the employer. This may either be an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last of a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

The leading case in relation to constructive dismissal is Western Excavating (ECC) Ltd v Sharp (CA) [1978] ICR221 in which it was held that an employee's entitlement to terminate his contract of employment by reason of his employer's conduct was to be determined in accordance with the law of contract and not by applying a test of unreasonableness to the employer's conduct. However, the courts mitigated the impact of this approach by recognising that there is an implied contractual term to the effect that the employer should not behave in a manner that would undermine the relationship of trust and confidence between employer and employee.

In BG plc v Mr P O'Brien [2001] IRLR 496, Mr Recorder Langstaff QC in giving a decision of the employment tribunal in a constructive dismissal case formulated a test as follows:-

"the question is whether, objectively speaking, the employer has conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee."

The courts have also considered situations where a series of incidents has occurred and the employee resigns in response to the last actions of the series which constitute the so-called "last straw". In Lewis v Motorworld Garages Ltd [1986] ICR 157, Glidewell LJ stated at page 169 F:-

"the breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulated the amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulated series of acts taken together amount to a breach of the implied term? …. This is the "last straw" situation".

Submissions

On behalf of the claimant, Mr Watters submitted that the respondent's treatment of the claimant was unacceptable, particularly in relation to the meeting where Mr Smyth was over zealous and badgered the claimant and that the claimant's position was undermined by not being told about the interviews being carried out in their store.

On behalf of the respondent, Mr Hamill submitted that there was no evidence that the interviews in the shop took place and that the tribunal should disregard this allegation which was not mentioned in either the claimant's application to the tribunal, her resignation letter or her grievance letter. In relation to the law Mr Hamill submitted that there was no repudiatory breach of contract as is required in a constructive dismissal case and there was nothing serious enough, either individually, or collectively, to amount to a breach of trust or confidence. Furthermore the respondent had no duty to try to convince one of its employees not to resign. Mr Hamill accepted that the claimant had encountered a number of problems but none of these were the employer's fault.

Conclusions

The case presented by the claimant in her evidence to the tribunal was that her decision to resign was based on two matters namely the negative nature of the meeting with Mr Smyth and job interviews being carried on behind her back. While there were problems with Marianne Murphy and the complaint made by Ms Allen's mother, neither of these matters can be laid at the door of the respondent. Moreover, it is clear from the evidence that Mr McCombe was supportive to the claimant in respect of the Marianne Murphy incident and that Mr Smyth was not in the least concerned about the complaint made by Ms Allen's mother. Both Mr McCombe and Mr Smyth gave evidence to the effect that the claimant was a valued employee who was very much responsible for the success of the Video City store in Antrim. Mr McCombe was surprised when the claimant decided to leave and did not know what caused her to do so.

We do not believe that Mr Smyth's conduct of the meeting on 29 August 2007 amounted to conduct that was likely to destroy or seriously damage the relationship of trust and confidence between the claimant and her employer. While Mr Smyth no doubt expressed strong views as to the future direction of the enterprise, this could not have come as a surprise to the claimant as these matters had all been raised at the managers' meeting on 6 August 2007. It seems clear to us that the claimant viewed the meeting as her opportunity to address what she viewed as an allegation of bullying whereas Mr Smyth was focussed on the claimant's threatened resignation and the business needs of the respondent. We are satisfied that it was this difference in approach which resulted in the meeting being unsatisfactory from the claimant's perspective.

It is clear from the claimant's evidence that she believed that job interviews were being carried out in the shop without her knowledge and that she was deeply unhappy about this. However, the height of the evidence presented on behalf of the claimant was that she was told over the telephone that someone had turned up to be interviewed by Mr Smyth. It was open to the claimant to have called a witness to substantiate this allegation had she so wished. While we accept that what the claimant was told by Ms Rowan undoubtedly upset her, the evidence presented on behalf of the claimant is not sufficient to persuade us that Mr Smyth had actually arranged a job interview on the evening of 29 August particularly in view of the fact that he was already committed to a meeting with the claimant earlier in the evening. In any event as the claimant was off on sick leave at the material time, we are unable to regard the carrying out of interviews on 29 August as a matter of legitimate complaint as clearly business had to go on. Moreover we cannot ignore the fact that the claimant did not make any mention of her upset about job interviews taking place in her claim form and this suggests to us that even if interviews were being undertaken on the evening in question, it was not a major factor in her decision to resign. Nor in these circumstances can we regard it as the last straw entitling the claimant to resign and claim constructive dismissal particularly as there was no evidence of a build up of other events for which the respondent was responsible leading to a last straw situation. While we accept that the claimant was upset by the incidents with Marianne Murphy and Jenny Allen there was no linkage between these incidents and the claimant's decision to resign.

Accordingly, we are not satisfied that the respondent conducted itself in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee and the claim must be dismissed.

Chairman:

Date and place of hearing: 4 April 2008, Belfast.

Date decision recorded in register and issued to parties: