Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1534_08.html
Cite as: [2009] NIIT 1534_8IT, [2009] NIIT 1534_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01534/08

CLAIMANT: Gerard McVeigh

RESPONDENT: J E Coulter Limited

DECISION

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

Constitution of Tribunal:

Chairman: Mr Wimpress

Members: Mr MacLaughlin

Mr Robinson

Appearances:

The claimant was unrepresented and appeared on his own behalf.

The respondent was represented by Ms Finnegan, Barrister-at-Law, instructed by J Blair Employment Law Solicitor.

The claim arises from the claimant’s resignation from his employment with the respondent as a workshop foreman.

Sources of Evidence

The tribunal received a bundle of documents from each party together with two witness statements by Maggie Lofthouse and one by Nigel Birkmyre, a Director in Ballyvesey Holdings Limited. The tribunal also heard oral evidence from the claimant, Mark Elliott, Raymond McSorley and Judith Blair, solicitor.

The Claim and the Response

The claimant’s constructive dismissal claim was based on the respondent’s treatment of him which he described in his claim form in the following terms:

“After months of constant undermining and bullying from Management at Coulter Truck and Van, I feel that I had been left with no choice but to render my resignation from the company.

The most notable incident occurred when offensive (sic) comments were written clearly about myself on my employer’s premises. Having notified higher management, the situation was ignored and dealt with in a flippant manner. On my insistence on several occasions, management finally agreed to investigate the matter of offensive (sic) graffiti.

Days after the graffiti was written it remained on my office wall, with no action having been taken by my management to have it removed. On 8/8/08 at a meeting with my employers, I was advised by [my] employer that it was my responsibility as workshop foreman to have it removed.

However, the manager who made this statement has since denied making the statement.

Only after Management finally agreed to watch the CCTV footage and agreed that there were indeed individuals who may have been responsible, however no one individual was ever reprimanded for the graffiti.

This incident combined with months of (sic) undermining and bullying led to a severe lack of personal confidence, resulting in a period of non-attendance at my workplace due to the stress of the whole matter.

A great deal of correspondence has been exchanged between both Coulters and myself, for which I have copies of all letters relating to the matter.”

The respondent in its response denied undermining or bullying the claimant and denied that the claimant was told during the meeting on 8 August 2008 that it was his responsibility to remove the graffiti, drew attention to the claimant’s failure to exhaust the grievance procedure and denied breach of contract and constructive dismissal.

The Facts

In May 2007, the claimant accepted an offer of employment as a Used Truck Salesman with J E Coulter Limited. J E Coulter Limited is a subsidiary of Ballyvesey Holdings Limited. In October 2007 the claimant took up an offer of employment as Workshop Foreman with the same company. There were clearly problems in the workshop and it was the claimant’s uncontroverted evidence that Mr Birkmyre told him that, “he did not care if every mechanic in the workshop walked out, we will re-build it – he wanted it sorted.” There had been thirteen PSV test failures in a row and the claimant decided to introduce new policies to turn it around and he realised that these would be unwelcome.

The claimant in his evidence to the tribunal fleshed out the rather bare allegations of bullying and undermining contained in his claim form. According to the claimant his problems started in early 2008 when Mr Mark Elliott, the Service Manager, began undermining him by criticising the diagnostics in the workshop and the unnecessary charging for parts and hours for work on lorries contrary to the claimant’s advice and undermining his ability as a diesel fitter.

On 3 March 2008, Mr McSorley took up the position of Dealer Principal with the respondent. This position equates to Managing Director in common parlance. Mr McSorley’s immediate superior was Mr Birkmyre.

On 10 April 2008 Mr Elliott informed the claimant that Maggie Lofthouse was leaving the company partly because the claimant was rude to her. Ms Lofthouse did not give oral evidence to the tribunal but provided two short statements in which she denied that she had left on account of the claimant.

Towards the end of May 2008 the first offensive graffiti appeared in the workshop. It read “Gerry is a wanker.” The claimant reported it to Mr Elliott, and expected it to be removed. Mr Elliott reviewed 9 hours of CCTV footage but was unable to identify the culprit. He also reported the matter to Mr McSorley but no action was taken by either of them to remove the graffiti.

On 7 May 2008, a co-worker, Mr McCord informed the claimant that Mr McSorley had asked him if he thought that there was a witch hunt out for the claimant. Mr McCord later denied having made this comment when asked about it by Mr McSorley in the context of the claimant’s grievance.

It is common case that there were problems with the standard of work being undertaken at the respondent’s premises and on 30 May 2008 a clear the air meeting was convened. During the meeting a difference of opinion arose between the claimant and a fellow foreman, Mr McDowell, as to whether an air filter that was causing problems in a vehicle should be replaced or repaired. There was clearly a frank exchange of views which caused the claimant distress because he believed that Mr McDowell, whom he regarded as junior to him, was telling lies about him.

On 10 June 2008 a second incident of graffiti occurred. The graffiti appeared on the claimant’s table in the workshop and read: “Gerry luvs dick and is one root.” According to the claimant no effort was made to remove the graffiti or identify the culprit. It was accepted by Mr Elliott that no action was taken to remove the graffiti but he did view CCTV footage from the previous evening and saw what he regarded as suspicious activity involving two employees Mr Patterson and Mr McCreedy. Mr Elliott could not actually see the graffiti being written but was pretty sure in his own mind that Mr McCreedy was responsible. He subsequently called both employees into his office and asked each if he was responsible but both denied responsibility. Mr Elliott could not be certain that either was responsible and therefore decided not to instigate disciplinary action.

The claimant was unhappy about Mr Elliott’s handling of the situation and sought a meeting with Mr McSorley which took place on 26 June 2008. At the meeting the claimant raised the two incidents of graffiti and the matters involving Maggie Lofthouse and Mr McDowell. In relation to the graffiti Mr McSorley indicated that he would bring staff in and warn them off.

Mr McSorley followed up his undertaking by holding two separate meetings with the day and night shifts and made it clear that if there were any further incidents of graffiti and the perpetrator was identified he would be dismissed.

On 3 July 2008, the claimant went off on sick leave and never returned to employment.

On 17 July 2008, the claimant wrote to Mr Birkmyre and told him that he was unfit to work due to the stress caused by bullying at work including the most recent graffiti. The claimant complained that the problem was with Mr Elliott, the Service Manager, who did nothing about the graffiti and did not try to find out who was responsible and failed to warn staff that it was unacceptable. Nor did Mr Elliott do anything about the second incident of graffiti when the claimant approached him about it. Although the claimant accepted that Mr Elliott viewed the graffiti and called Mr Patterson and Mr McCreedy into his office, there was no further investigation and the graffiti was not removed. The claimant told Mr Birkmyre that he had been to see Mr McSorley about it and that Mr McSorley had taken action. The claimant further complained about the Maggie Lofthouse incident and being undermined by a junior member of staff, Mr McDowell.

On 4 August 2008, the claimant phoned Mr Birkmyre who invited him to attend a meeting on the morning of Friday 8 August 2008. According to the claimant Mr Birkmyre asked him if he wanted to meet with himself and Mr McSorley outside of Coulters and the claimant replied that he had nothing to hide or be ashamed of and that he would go to Coulters with the arrangement being “to get this sorted”.

On the same date Mr Birkmyre wrote to the claimant to confirm the meeting. He said that he was surprised and concerned about what the claimant told him and “had passed it to Mr McSorley so that he could deal with it in an appropriate manner” and drew attention to the meeting that had been arranged with Mr McSorley on 8 August. On the face of it this does not rest easily with the account of the telephone conversation given by the claimant. We did not have the benefit of hearing Mr Birkmyre’s oral testimony on this matter. According to Mr Birkmyre’s statement he decided that in order to deal with the claimant’s grievance in an appropriate manner, he decided to pass the claimant’s letter on to Mr McSorley to deal with the initial grievance and hold himself available for any appeal. We regard the claimant as an honest witness we are inclined to accept his version of the conversation. We do not doubt that Mr Birkmyre decided to deal with it in this manner but we are not persuaded on the basis of his statement that he communicated this to the claimant. We rather suspect that when Mr Birkmyre came to compose his letter to the claimant he was more mindful of the practical arrangement and the benefit of keeping himself free for an appeal. As we will come to shortly this played in to the events on 8 August and served to heighten the claimant’s concerns about the respondent’s good faith, particularly as the claimant was well disposed towards Mr Birkmyre up to that point and was keen to have him involved in the grievance.

On 8 August 2008 the claimant duly attended at the respondent’s premises where he was met by Mr Birkmyre who informed him that he would not be attending the meeting as something had cropped up. He then escorted the claimant to Mr McSorley’s office. The claimant asked for a witness and Mr Birkmyre responded “This sounds serious”. Again there is a conflict with Mr Birkmyre’s version of events. According to Mr Birkmyre’s statement he merely advised the claimant that Mr McSorley was meeting with him to discuss the issues raised in his letter. Mr Birkmyre agreed that the claimant advised him that he wanted someone to accompany him at the meeting and he then headed off in the direction of the service reception. The only substantial difference between these accounts is the excuse or reason proffered by Mr Birkmyre for not being involved in the meeting. Without the benefit of hearing from Mr Birkmyre we feel bound to accept the claimant’s version of events which has a ring of truth about it. We believe that Mr Birkmyre probably decided to excuse himself from the meeting on this rather vague basis rather than launch into a whole explanation about the need to keep himself available for any appeal.

The meeting went ahead as planned and a detailed record of what transpired was made available to the tribunal. In summary, the claimant complained that he had been suffering from work related stress due to bullying by senior staff in the workshop and the service department. The claimant referred to the second graffiti incident and complained that Mr McCreedy had not been spoken to individually or disciplined and the graffiti had not been removed. The note of the meeting recorded that Mr McSorley suggested to the claimant that as the graffiti was in his office and given that he was in charge of the workshop, he might have arranged for the graffiti to be removed himself. The next matter discussed was the dispute between the claimant and Mr McDowell. The claimant expressed the opinion that Mr McSorley ought to have disciplined Mr McDowell. Mr McSorley disagreed on the basis that it was a clear the air meeting and the claimant and Mr McDowell had argued aggressively with each other. Mr McSorley went on to say that he would not tolerate bullying or victimisation in the workplace and asked the claimant what was needed to provide an environment where the claimant was happy and comfortable. The claimant responded that it was up to management to decide. Mr McSorley pressed the claimant on this point and the claimant indicated that he would give it some thought and come back with suggestions. The claimant went on to complain about a lack of support from management. The next substantial matter raised was Maggie Lofthouse’s reasons for leaving. Mr McSorley indicated that he was not prepared to discuss this matter as he regarded it as confidential but did state that Mr Elliott should not have discussed it with the claimant. The claimant then stated that he was aware that he was unpopular in the service department and that Mr McCord had told Mr McSorley that there was a witch hunt in the service department for the claimant. Mr McSorley responded that he was aware that the claimant was unpopular but denied that Mr McCord had told him that there was a witch hunt. Mr McSorley went on to say that he was anxious to get the claimant back to work but only if the circumstances were right and that the claimant might want to consult the respondent’s specialist for assessment prior to returning to work. The claimant indicated that he would be happy to do so. The final matter raised by the claimant was the workshop budget. The claimant and Mr McSorley disagreed as to whether it had met the budget since the claimant took on the role of workshop foreman in October 2008.

It is clear from the record that the claimant’s grievance was dealt with thoroughly. Mr McSorley decided that he needed some time to consider the matter and he confirmed this by letter of the same date. For his own part the claimant agreed to consider the conditions and changes necessary for him to return to work.

However after the meeting the claimant penned a letter of resignation to Mr McSorley. The letter read as follows:

“Further to our meeting today when I had sincerely hoped to resolve the ongoing matter of bullying, resulting in work related stress on my part.

I feel that due to your inability to resolve the issue at hand no alternative but to render my resignation of the Workshop foreman role at Coulter Truck & Van.

I would ask that you document the fact that as Senior Management, you personally were unable to offer any resolution to the matter. This leaves me with little confidence that management at Coulter Truck & Van are capable of dealing with such a complex matter of Human Resource Management. As a last resort, I have been forced to resign from a position and company to whom I offered 100% dedication, diligence and loyalty.

To this end, there are several points that I would like documented, as the reasoning behind my resignation, these are as follows:

During our meeting today, I feel that the truth was less than forthcoming, most notably, in relation to Workshop Monthly targets from the beginning of 2008. I trust that you personally recall advising the Workshop Manager on more than one occasion, that invoicing should be postponed, due to the fact that targets were being exceeded. Given that targets were being exceeded with approximately 50% less of man-power than was employed in October 2007 when I was poached from the Sales Department of the company.

I would also like to address the point that you made during our meeting today, that I should have been responsible for removing the graffiti that had been written about me on workshop premises. As I am sure you will understand, this would have been both morally degrading and an evident sign that I was receiving no support from higher management, given the context of the graffiti. Any offer of support, appears to have been words with little or no action.

Taking into consideration the content of this letter, it would be impossible to work under these conditions, hence my letter of resignation.

I will remove any personal belongings from Coulter’s premises within 7 days.

Thank you for your time.”

On 9 August 2008 the claimant took up employment with Kelly European Contracts a firm with which he had a longstanding relationship.

Notwithstanding the claimant’s resignation Mr McSorley quite correctly pressed on with the investigation of the claimant’s allegations and interviewed Mr Elliott and Mr McCord. He also received a written response from Mr Elliott and an email response from Mr McCord.

On 5 September 2008 Mr McSorley wrote to the claimant and informed him that he had decided not to uphold the grievance setting out his reasons in commendable detail. In relation to the first graffiti incident Mr McSorley found that Mr Elliott had dealt with it properly by both viewing the video evidence himself and giving the claimant the opportunity to do so, an opportunity that the claimant did not take up. Mr McSorley was also broadly satisfied that Mr Elliott dealt properly with the second graffiti incident by viewing the video evidence and interviewing the suspected culprits. Mr McSorley noted that there was insufficient evidence to justify disciplinary charges and Mr Elliott’s recognition that it might have been preferable to have the graffiti removed. Mr McSorley also drew attention to his own action in holding meetings with staff and telling them that that if happened again the person responsible would be dismissed. Mr McSorley denied that he had suggested that the claimant should be responsible for removing the graffiti. Mr McSorley referred to the exit interview that he had conducted with Maggie Lofthouse and confirmed that the claimant was a contributory factor in her decision to resign. Mr McSorley accepted that Mr Elliott’s motive in mentioning this to the claimant was to convey the message to the claimant that colleagues had difficulty working with him because of his attitude. According to Mr McSorley this was corroborated by the disciplinary file which showed that the claimant was not a popular supervisor and that there had been allegations of bullying, abuse and victimisation made against him by colleagues and former employees. Mr McSorley reiterated his view of the meeting on 8 August 2008 namely that it was a clear the air meeting where robust views were exchanged and therefore it would not have been appropriate to take disciplinary action against Mr McDowell. Mr McSorley also refuted the allegation that the claimant did not receive support from management and the suggestion that Mr McCord had advised that there was a witch hunt. Mr McSorley repeated his previous assertion that the claimant was mistaken about the budget and denied that the claimant was asked to offer a resolution during the meeting. Mr McSorley concluded the letter by advising the claimant of his right to appeal to Mr Birkmyre and that this should be done within five working days.

The claimant did not appeal within this period and sought more time to consider the matter. Mr McSorley issued a reminder on 25 September 2008 in which he indicated that if he did not hear from the claimant by 30 September 2008 he would regard the matter as closed. The claimant responded on 29 September 2008 complaining about the tight deadline and requesting a copy of his contract of employment. Mr McSorley replied on 2 October providing documentation and explaining why it was important to deal with appeals promptly. Mr Birkmyre also wrote to the claimant on 21 October advising that details of any appeal should be sent to him but in the event no appeal was forthcoming.

SUBMISSIONS

The claimant’s submissions understandably focused on his perceived ill treatment by management and in particular the failure to deal with the bullying. The main components of the claimant’s case were the failure to deal with the graffiti, the claimant’s treatment by Mr McDowell and his alleged role in Maggie Lofthouse’s resignation. The claimant indicated that he was not motivated by financial compensation and that any award would be donated to charity. There was no future loss and the only difference in pay terms was the loss of the benefit of a company car which he regarded as a bonus. In response to the respondent’s suggestion that he had chopped and changed his case, the claimant accepted that the monthly targets referred to in his resignation letter were not the main reason for leaving and explained that he mentioned this because he was concerned that the truth was not being told by Mr McSorley about the workload targets. The claimant further submitted that the second incident of graffiti was the final straw and all of his complaints were clearly stated in the minute of the grievance and all four incidents were referred to in the record of the meeting.

27. At the outset of her submissions Ms Finnegan suggested that the claimant should be penalised for his failure to comply with the statutory grievance procedure by resigning at a point where his grievance was still under consideration and not availing of the opportunity to appeal. In particular it was submitted that the claimant had not demonstrated that it was not reasonably practical for him to have completed the grievance procedure and appeal. On this basis it was suggested that the claim should be rejected or any award reduced. The failure to appeal to Mr Birkmyre was said to be particularly striking in view of the claimant’s anxiety to have Mr Birkmyre involved at the grievance stage.

28. On the issue as to whether the claimant had been constructively dismissed Ms Finnegan placed reliance on Western Excavating (ECC) Ltd v Sharp (CA) [1978] ICR, Dutton v Clark Ltd and Daly 1985 IRLR and ICR 780 and Omilaju v London Borough of Waltham Forest [2005] 1 All ER 75. On the basis of Dutton v Clark Ltd and Daly, Ms Finnegan submitted that the correct approach to a case of constructive dismissal was to look at the matter objectively and determine whether a reasonable employer could have been expected to have done more. If so, according to Ms Finnegan there was a fundamental breach of contract and the employee would be entitled to treat it as repudiated. Ms Finnegan further submitted that the tribunal is not entitled to substitute its view for the employer’s and must look at the matter in terms of whether the employer’s behaviour fell within a range of reasonable responses.

The Law

29. Article 126 of the Employment Rights (Northern Ireland) Order 1996 sets out the right not to be unfairly dismissed and Article 127 in so far as relevant provides as follows:-

“127(1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2), only if) –

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.”

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

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

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.

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

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.

31. The leading case in relation to constructive dismissal is Western Excavating (ECC) Ltd v Sharp (CA) [1978] ICR 221 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.

32. The nature of the duty of trust and confidence, it was described by the House of Lords in Mahmud v Bank of Credit and Commerce International SA [1997] ICR 606, [1997] IRLR 462 but is perhaps best captured by Mr Recorder Langstaff QC in BG plc v Mr P O’Brien [2001] IRLR 496, in giving a decision of the Employment Appeal 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.”

33. 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 cumulatively 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? (See Woods v W. M. Car Services (Peterborough) Ltd. [1981] ICR 666.) This is the ‘last straw’ situation.”

The Court of Appeal went on to state that although the final straw may be relatively insignificant, it must not be utterly trivial. And that it must contribute something to the breach of contract, although what it adds may be relatively insignificant. There was no need to characterise the final straw as "unreasonable" or "blameworthy" conduct. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective.

34. The Employment Appeal Tribunal has recently considered the so called last straw doctrine in Thornton Print Ltd v Morton [2008] UKEAT/0090/08/JOJ. In that case Judge Serota QC endorsed the judgment of the Court of Appeal in Omilaju v London Borough of Waltham Forest [2005] 1 All ER 75 and stated that:-

“The principle, if it be one, means no more than that the final matter that leads to the acceptance of a repudiatory breach of contract when taken together and cumulatively with earlier conduct entitles a party to accept a repudiatory breach of contract, whether that last matter is in itself a breach of contract or not.”

CONCLUSIONS

35. We are not attracted to the submission that the claim should be rejected on the basis of the claimant’s failure to complete the statutory procedures. While there are good reasons why the procedures should generally be completed we consider that where a claimant reaches the point where he rightly or wrongly feels that he has no alternative but to resign, the statutory procedures are unlikely to feature in his deliberations and while one must recognise that time spent pursuing a grievance is unlikely to count against a claimant in terms of delay it not always easy to make such fine judgements in the heat of the moment. Nor do we accept Ms Finnegan’s submission based on Dutton v Clark Ltd and Daly that we should adopt a range of reasonable responses approach in relation to constructive dismissal. While we accept that our assessment of the claimant’s allegations must be objective and informed by reasonableness, we prefer the conventional approach advocated by the authors of Harvey.

36. Turning to four essential ingredients of a successful constructive claim as described in Harvey the first and most obvious point to note is that delay clearly does not feature in the present case. If anything, the claimant jumped too soon. Nor do we consider that the claimant left his employment for reasons other than those given by him in his letter of resignation, claim form and evidence to the tribunal. While it is true that the claimant walked into a new job the next day we are satisfied that the availability of an alternative job was not what prompted him to leave the respondent’s employment but rather it was something of a safety net which meant that he did not have to tolerate what he regarded as an unsatisfactory situation. The case therefore turns on whether there was fundamental breach of the claimant’s contract either through a single act on the part of the respondent or a series of acts cumulating in a last straw situation.

37. When considering the evidence we bear in mind that the tribunal is obliged to look at the case as pleaded in the claim form and there is no mention in it of the matters relating to Maggie Lofthouse or Mr McDowell. The only matter referred to in the claim form was the graffiti and the failure to have it removed. No other instances of bullying or being undermined are pleaded in the claim form or in response to the Notice for Additional Information. The terms of the claimant’s letter of resignation are clearly important as are the allegations that emerged in the course of grievance procedure. While it is unsatisfactory that some of the key components of the claimant’s case were not mentioned in the claimant’s claim form or in his response to the Notice for Additional Information, we are mindful that he did not have the benefit of legal representation and we are satisfied that all of the matters that he relied upon at the hearing were conveyed to the respondent in the course of grievance procedure and lead to his decision to resign. At the same time it is important to note that some of the matters that the claimant complained about had either been dealt with to his satisfaction such as the action taken by Mr McSorley’s in response to the second occurrence of graffiti or were being actively considered by the respondent at the time of his resignation namely the outworking of his grievance.

38. In order to succeed, the claimant must satisfy us that there was a fundamental breach of contract. The first graffiti incident was a very minor event and not of any real significance to the claimant on his own admission. The Lofthouse incident was a very minor matter which Mr Elliott used to emphasise the importance of the claimant getting on with his workmates. As such it cannot be regarded as bullying or harassment. Mr McDowell was employed in a similar position to the claimant and we are satisfied that there was simply a difference of opinion in the context of a clear the air meeting and therefore could not constitute or contribute towards a breach of contract. The second graffiti incident was investigated and the CCTV footage was examined. It is common case that there was a definite suspicion that Mr McCreedy was responsible but in the absence of firm evidence we cannot regard the failure to prefer a charge as a breach of the implied contractual duty of trust and confidence. In addition, Mr McSorley decided to call the employees together and read the riot act. He made clear that if there was a recurrence and the perpetrator was caught he would be dismissed. With regard to the failure to remove the graffiti, it is difficult to see how this matter was relevant to the claimant’s decision to resign and Mr McSorley vehemently rejected the suggestion that there was any intention that the claimant should remove the graffiti personally In the claimant’s letter of 17 July 2008, he indicated that his satisfaction with the action taken by Mr McSorley. The claimant raised no further concerns and there was no repetition of the graffiti. In these circumstances we are satisfied that respondent’s handling of the matter was entirely reasonable and could not be said to be in breach of the implied term.

39. We are also satisfied that some aspects of the claimant’s complaint while genuinely believed by him were in fact ill founded. In particular we are satisfied that the claimant was mistaken in his belief that Mr McSorley was placing the onus on him to come up with a resolution to his grievance or considered that he should have removed the graffiti himself.

40. It is also clear from the claimant’s evidence his real issue was with Mr Elliott. In particular it is notable that the claimant’s grievance pointed towards a problem with Mr Elliott’s response to the graffiti rather than the graffiti itself. It is also clear that Mr Elliott did take action in relation to both graffiti incidents. In relation to the first incident he viewed nine hours of CCTV video and reported the matter to Mr McSorley. Perhaps surprisingly, the claimant was not particularly worried about the first incident which he regarded as workplace banter. The claimant’s complaint about the second incident of graffiti was that it was not removed but he appeared satisfied with the action taken by Mr McSorley on the foot of the complaint namely his action in calling staff meetings and making it clear to them that if there was any repetition the culprit would be dismissed. Moreover, in the final paragraph of the claimant’s grievance the claimant referred to Mr McSorley’s support and the fact that Mr McSorley was plainly taking steps to resolve the matter created a problem for the claimant in mounting this claim successfully particularly at a time when his grievance was under consideration. The only example provided of Mr Elliott bullying the claimant was the reference to Maggie Lofthouse’s resignation.

41. In terms of the so called last straw doctrine the tribunal has examined closely the claimant’s reasons for resigning. The first reason given in the letter of resignation is the failure of Mr McSorley to resolve the matter on the very day of the grievance meeting. We accept Ms Finnegan’s submission that this was a completely unrealistic expectation and provides no basis for a claim of constructive dismissal. Mr McSorley invited the claimant to suggest any measures that would leave him happy to return to work and come back to him about it. As accepted by the claimant, the complaint about targets had no bearing on his decision to resign. It is clear that the stated reason for resigning is nothing to do with the appearance of graffiti but the alleged suggestion by Mr McSorley that the claimant should be responsible for removing it. Turning to the claimant’s complaint about the absence of support, Mr McSorley’s evidence was clear that he was not suggesting that it was the claimant’s responsibility to remove it but that given that it was the source of upset it was surprising that the claimant did not say anything. It is clear from the resignation letter that it had little or nothing to do with the matters raised in the grievance but related to Mr McSorley’s conduct at the grievance meeting. The claimant documented his reasons for leaving in his resignation letter, namely Mr McSorley’s failure to resolve the matter and the workshops targets issue. There is nothing in the letter that could constitute a last straw.

42. In conclusion, we are satisfied that there was no fundamental breach of the implied contractual duty of trust and confidence either on the basis of a series of individual actions, cumulatively or as a last straw. In these circumstances we are satisfied that the claimant’s claim of constructive dismissal is not made out and it must therefore be dismissed.

Chairman:

Date and place of hearing: 11 March 2009 and 7-8 April 2009 at Belfast.

Date decision recorded in register and issued to parties: