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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McStravog v McDon Peat Supplies Ltd [2009] NIIT 5133_09IT (13 October 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/5133_09IT.html
Cite as: [2009] NIIT 5133_9IT, [2009] NIIT 5133_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 5133/09
CLAIMANT: Patrick McStravog
RESPONDENT: McDon Peat Supplies Ltd
DECISION
The unanimous decision of the tribunal is that the claim of constructive dismissal is dismissed.
Constitution of Tribunal:
Chairman: Mrs Watson
Panel Members: Mrs Madden
Mr Irwin
Appearances:
The claimant was represented by Mr McKeown B.L. instructed by Logan & Corry, Solicitors
The respondent was represented by Mr Potter B.L. instructed by Falloon & Co., Solicitors
1. BACKGROUND
1.1 The case was listed for hearing on Tuesday 8 September 2009. The originating application in this case had been lodged on 16 April 2009 and the response on 17 June 2009. The tribunal noted that there had been little, if any, exchange of documentation between the parties when the case came to be heard and the tribunal had to rise several times to enable the parties to consider the content of documents relevant to the issues in dispute presented by them both to the tribunal.
1.2 The case was listed for a further day on Thursday 10 September during which time the claimant was cross examined by Mr Potter, Counsel for the respondent. During that cross examination, the claimant acknowledged that he had been mistaken in relation to certain material facts and beliefs which had led him to initiate the proceedings.
1.3 The tribunal asked both Counsel to make submissions on the issue of constructive dismissal after which the tribunal rose to consider the matter. The tribunal, in exercise of its Overriding Objective to ensure justice between the parties, dismissed the application on the grounds that there had not been a sufficiently important breach of the claimant’s contract such as to justify his resignation and claim of constructive dismissal. The tribunal agreed to Mr McKeown’s request for full written reasons for the decision. These are set out below.
2. ISSUES FOR DETERMINATION
(1) Had there been a breach of the claimant’s contract by the respondent?
(2) If yes, had the breach been sufficiently important to justify the claimant resigning?
The tribunal was provided with bundles of documentation by both parties. These had not been exchanged or agreed by the parties but neither objected to the tribunal being referred to any of the documents. The tribunal heard oral evidence from the claimant.
3. FINDINGS OF FACT
3.1 The claimant took up his employment as a HGV Lorry Driver with the respondent in June 2004.
3.2 The respondent’s business is to produce and supply peat to mushroom farms. It is a family business owned and managed by members of the McCourt family. There were 12 employees in total. The claimant was one of 5 drivers who made deliveries over a wide area in Northern Ireland and in the Republic. There were no written contracts of employment or terms and conditions or company procedures.
3.3 The claimant gave evidence that over the Christmas 2008 period, he was very busy and all drivers worked very long hours but he acknowledged that, as set out in the originating application, he was employed to work 40 hours per week and earned £8.00 per hour. This would have been his average week’s work.
3.4 The claimant also gave evidence that, in the past, the respondent had on occasions sent employees home because there was no work for them but he said that had usually been for short periods.
3.5 On Thursday 8 January 2009, the claimant arrived back in the yard shortly before 5 p.m. Philip Mc Court, the Production Manager, informed the claimant that there was no work for him to do the following day and that rather than take the lorry home, he was to leave it in the yard. The claimant returned to work on the following Monday as usual.
3.6 The claimant’s lorry broke down on 21 January 2009. He was informed that there was no work for him on 22 and 23 January. The claimant called to the yard on 23 January to collect his wages and saw that his lorry was repaired and back in the yard. The claimant believed that another employee had used his lorry that day to work in his absence.
3.7 The claimant spoke to Martin McCourt, his Manager, and asked him why he had not been given another lorry to drive while his was being repaired. The claimant said he believed that another driver, Jonathan Black had been allowed to do this. Mr Mc Court said that things were ’very quiet’ and informed the claimant that there would be no work for him the following week, beginning 26 January. The claimant complained that he believed he was being treated unfairly compared to other drivers as he had already lost 4 days’ wages. Mr McCourt told him that he would run his business as he saw fit.
3.8 The claimant worked the next week except that he had previously booked a day off on Friday 6 as he had a hospital appointment that evening. Before he left on the Thursday evening, he asked Jim McCourt if there was work for him on the Friday as his hospital appointment was not until the evening but he was told that there was none.
3.9 On Thursday evening, the claimant had also spoken to Philip McCourt and informed him that he would need to book time off to attend his uncle’s funeral in England. As the funeral had not then been arranged, the claimant told Philip that he would tell Martin when he had made his travel arrangements.
3.10 On Sunday 8 February, the claimant telephoned Martin and was told there was no work for him that week. The claimant set the phone down. He did not tell Martin that he had made his travel arrangements the previous day and that he was not due to travel to England until 19 February.
3.11 The claimant went to the office on the Tuesday or Wednesday of that following week and met with Martin McCourt to complain about the way he had been treated. He said that he told Martin that if everyone was to work reduced hours like him that there would be enough work for everyone. Martin again told the claimant that he would run his business his way. When the claimant asked if he was being laid off, he was told that it was up to him.
3.12 The claimant consulted his solicitor who wrote to the respondent on 13 February 2009 saying that the claimant had been treated ‘much less favourably’ than other drivers, some of whom had not experienced any temporary lay off or short time working and none of whom had experienced as much loss as the claimant. The letter also requested Statutory Guarantee Payment for the relevant dates and asked to invoke the Statutory Grievance Procedure to deal with these complaints.
3.13 James McCourt wrote to the claimant on 17 February saying that he was surprised to have received the letter from the solicitor. He had tried to ring the claimant but got no answer. The letter said; “Unfortunately circumstances beyond our control meant that we had to temporarily leave off our workforce. This affected all our employees. We where (sic) doing this for to (sic) keep a job for everyone, waiting for the work to pick up again.” The claimant was asked to contact the office to arrange a meeting and to collect his wages.
3.14 In response, the claimant’s solicitor wrote on 3 March asking that all further correspondence be directed through their office and repeated the request for a Grievance Hearing and copies of the Procedure. The claim that all employees had been affected by temporary lay off was not accepted.
3.15 The respondent replied on 5 March stating that the business had taken a ‘severe downturn’ which meant that working hours were reduced. This was said to have been done as fairly as possible and the respondent denied that the claimant had been treated less favourably than other drivers. The stated aim was to save the business as they hoped to resume normal workload in the ‘near coming future’. The claimant was informed that a Grievance Meeting was arranged for 10 March.
3.16 The claimant met with Jim McCourt on 10 March and asked why he was being treated less favourably that the other drivers. Jim McCourt informed the claimant that the workload had fallen greatly and that the other drivers had been off work too. He also said that the company had believed that the claimant had asked for time off to attend his uncle’s funeral from 9 February. Jim McCourt promised that he would look into the claimant’s grievance.
3.17 By letter dated 20 March 2009, the claimant’s solicitor sent a fax message to the respondent which concluded as follows;
“Due to a combination of our client’s grievances as laid out in our letter of the 13 February 2009, and your inadequate response and handling of the grievance procedure, our client feels that his position has become untenable. It is clear that your actions amount to constructive dismissal of our client who now puts you on notice, as from today’s date, that he will not be returning to your employment.
In these circumstances, we now request that you provide us with your proposal to compensate our client. If we do not receive satisfactory proposals within ten days from the date hereof, an application will be made to the Industrial Tribunal without further notice.”
3.18 In fact, the respondent had sought advice from the Federation of Small Businesses and had prepared a full response to all details of the claimant’s grievances. This was forwarded by fax to the claimant and his solicitor later that same day along with a letter acknowledging receipt of the claimant’s resignation. In the response to the grievance, the respondent had repeated their claim of the downturn in work, denied less favourable treatment of the claimant and invited the claimant to return to work on the same terms as the other workers which was currently 3-4 days work per week. The response also claimed that all employees, including the claimant , had accepted in early January that there was a reduced availability of work and that as a consequence, there would be occasional lay offs. As far as the respondent was concerned, the claimant (and the other workers) had agreed to the lay off and had demonstrated that agreement by staying away from work when requested to do so.
3.19 The letter also informed the claimant that he had a right of appeal against the decision not to uphold his grievance and invited him to meet with Philip McCourt on 7 April. At this meeting, the claimant was assured that, contrary to what he believed, no new drivers had been taken on, that what work there was had been shared out evenly and that all drivers had had temporary lay offs. In relation to the week beginning 9 February, Philip informed the claimant that the respondent believed that he had asked for that week off to attend the funeral and that he had consented to his earlier time off. The company was still experiencing difficulty but hoped all drivers would be brought back as the work picked up.
3.20 By this date, the claimant had spoken to another driver Malachy Campbell and knew that John Foy had been made redundant and that other drivers had also had their hours reduced. He had also been talking to one of the respondent’s customers to whom he had made deliveries previously and as a result had formed the view that in addition to the 3 remaining drivers, deliveries had been made by Philip and Christopher McCourt. He produced copies of delivery dockets to the tribunal which he believed corroborated this view.
3.21 When the hearing resumed next morning, the respondent provided further documentation to the tribunal which related to the beliefs about his treatment expressed by the claimant the previous day. After going through these and having the respondent’s evidence put to him in cross examination, the claimant accepted that no other driver had used his lorry after it had been repaired, that the downturn in business had been worse than he realised, that John Foy, a driver, had been made redundant, that Philip and Christopher had not made the deliveries that he believed they had and that the other drivers had had their hours reduced more than the claimant had appreciated.
3.22 The tribunal had an opportunity to read the correspondence between the parties, in particular the letters dated 20 March 2009. After giving Mr McKeown an opportunity to consult with his instructing solicitor, the tribunal was concerned to find that the letter of resignation from the claimant’s solicitor had been faxed to the respondent before the solicitor had received the respondent’s response to the claimant’s Grievance Meeting later that day. The solicitor’s letter had said that an ‘inadequate response’ by the respondent to the claimant’s grievances was one of the factors which had led to the claimant’s resignation.
3.23 The tribunal rose to consider more fully the evidence that it had heard and asked both Counsel on its return to address us in relation to the grounds for the claim of constructive dismissal.
3.24 Mr McKeown submitted that the material breach was the action by the respondent in the short time laying off the claimant which resulted in a significant reduction in his wages. He referred to Harvey on Industrial Relations and Employment Law at D 1, paragraph 403. This sets out the four conditions that an employee must meet to be able to claim constructive dismissal.
(1) There must be a breach of contract by the employer.
(2) That breach must be sufficiently important to justify the employee resigning.
(3) The employee must leave in response to the breach and not for some other, unconnected reason.
(4) The employee 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.
3.25 Mr Potter submitted that there had not been any breach of the contract as alleged as the employer has spoken to each employee and explained that the need to make short term lay off was so that the reduced working hours could be shared between all the staff and all had agreed. The claimant’s allegation that he had not been asked to consent would be denied by the respondent and other drivers who had submitted statements to that effect.
3.26 In any event, the claimant did not make any objection when asked not to come in to work until after 6 February. The lay off in February had been the result of a mistake by the respondent regarding his request for time off to attend his uncle’s funeral. In relation to the response to the Grievance, this had been referred to as inadequate but had been written before considering the proper and adequate response that was made. With regard to the unfairness of the allocation of work, the material provided that Mr Foy was made redundant and Mr Campbell and Mr Quinn had worked comparable hours to the claimant.
3.27 The tribunal considered the submissions of Counsel and the oral and documentary evidence it had heard. The tribunal found that the claimant did not object to working short time in January. This was consistent with accepted practice in the company where there had previously been shortage of work. The claimant was not singled out for time off and was treated as favourably as Mr Campbell and Mr Quinn and more favourably that Mr Foy who was made redundant.
3.28 The tribunal noted the absence of written contracts and procedures and the laxity with which the employers seemed to deal with industrial relations problems. However, the tribunal did not find that there was a sufficiently important breach by the employer to enable the claimant to claim constructive dismissal.
3.29 The tribunal also considered that if there had been any meaningful attempt at an earlier stage to clarify and address the matters in dispute between the parties, this case might not have taken up tribunal time.
Chairman:
Date and place of hearing: 8 & 10 September 2009, Belfast.
Date decision recorded in register and issued to parties: