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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Armstrong v Fortress Doors (Northern Irela... [2011] NIIT 01145_11IT (09 November 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01145_11IT.html
Cite as: [2011] NIIT 1145_11IT, [2011] NIIT 01145_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1145/11
CLAIMANT: Samuel Armstrong
RESPONDENT: Fortress Doors (Northern Ireland) Limited
DECISION
The unanimous decision of the tribunal is that the claimant has not been dismissed by the respondent as defined under Article 127 of the Employment Rights (Northern Ireland) Order 1996 and dismisses the claimant’s claim of unfair dismissal.
Constitution of Tribunal:
Chairman: Ms M Bell
Members: Mr J Boyd
Mr R Hanna
Appearances:
The claimant was represented by Ms Sandra Wilson of Belfast Business Centre.
The respondent was represented by Ms Linda Smith, HR Manager of the respondent company.
1. The claimant claimed that he had been unfairly dismissed by the respondent, by way of constructive dismissal, following many incidents leading up to him being laid off, that he felt he was laid off so that he would have no choice but to leave, that he was targeted because he was willing to speak up, was a member of the union and that he had endured months of stress and anxiety causing him humiliation and low self esteem.
2. The respondent in its response denied the claimant’s claims.
3. The parties agreed at the outset that the claimant was employed by and that the correct title of the respondent is Fortress Doors (Northern Ireland) Limited. The title of the respondent in these proceedings is amended from ‘Fortress Doors’ to ‘Fortress Doors (Northern Ireland) Limited’.
ISSUES
4. The issues to be determined by the tribunal were:-
· Was the claimant dismissed? If so,
· Was the claimant unfairly dismissed?
SOURCES OF EVIDENCE
5. The tribunal considered the claim, response, agreed bundles of documentation from the claimant and respondent, heard oral evidence from Mr Brendan McDonnell the respondent’s production supervisor and claimant’s line manager, Mr Samuel Fee formerly the respondent’s line manager in charge of outside squads, Mr John Eppleston a fitter employed by the respondent, the claimant, and from Ms Linda Smith the respondent’s HR manager.
FINDINGS OF FACTS
6. The respondent company produces roller shutters and steel doors. It is one company in a small group of five manufacturing companies. Other companies within the group include Fasa LLP which undertakes the service and maintenance of roller doors and shutters, Fortress Glass which produces aluminium frames, Fortress Pro-Tec Coatings Ltd which carries out spray painting mainly of doors and shutters and Fortress Play which builds children’s parks.
7. The respondent’s employees are on occasion required to carry out work undertaken by another company within the group in order to service the needs of the group of companies and make best use of all their labour resources. Most work undertaken by the respondent company is on foot of tenders for contracts. The respondent considers Fasa LLP to be a ‘re-active business’ in terms of the work it obtains.
8. The claimant was employed by the respondent on 20 August 2006 as an industrial helper. The claimant signed an acceptance on 3 June 2008 that he had read and understood the current Employee Handbook which formed part of his Contract of Employment. The claimant’s Employee Handbook states that:-
‘It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties within our business. During holiday periods, etc. it may be necessary for you to take over some duties normally performed by colleagues. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our work force.’
9. On 13 January 2010 the claimant and another employee Mr Jay Houston were approached by Mr Jonathan Weir, the respondent’s general manager at the time, who enquired whether the claimant or Mr Houston had clocked another employee out. The claimant asked Mr Weir to check CCTV footage. The claimant later that evening called to the respondent’s office, Mr Weir remarked to the claimant ‘What’s this? A guilty conscience?’, the claimant expressed that he was unhappy at being accused and asked Mr Weir whether had he checked the CCTV footage, Mr Weir told the claimant he would get back to him when he had a chance. The claimant contacted his union and raised a grievance that he considered that Mr Weir had behaved unprofessionally and inappropriately in the circumstances as it was his understanding that according to his employee handbook that the matter could be considered as gross misconduct. In response a grievance meeting was held on 22 January 2010 by Ms Smith with the claimant and his union representative, Mr Kiddle. Ms Smith wrote to the claimant by letter dated 25 January 2010 outlining her findings on investigation of his complaint, which included:-
‘• The discussion between you, Jay Houston and Jonathan Weir took place in a public area which indicates that it was done informally to establish what had happened.
· Jonathan Weir has stated that he asked was it ‘accidently done’ as it may have been an innocent mistake and I understand from talking with you that you are of the opinion that he accused you. As I have received no complaint from the other person at this meeting, Jay Houston, I can only assume that it is a misunderstanding of the conversation.
· The fact remains that three cards were all clocked out at the same time of 1816. One of those cards belonged to Stephen Maddox who was absent on this day. Jonathan Weir asked if you saw anyone else at the clocking machine to which you replied, the Fitters were also in yard at the time.
· As you stated, at no time did Jonathan Weir mention gross misconduct or disciplinary action. You admitted that you deemed this action as ‘gross misconduct’ by looking at the employee handbook after this discussion.
· Due to Jonathan Weir’s workload he was unable to look at the CCTV footage that day. Your informal approach to him later that day gave him no option but to reply to you in front of other employees. His light hearted reply to you in jest was an indication that it was not being treated as ‘gross misconduct.’ No formal investigation was carried out.
I am sorry that you felt aggrieved and can understand why, however, I do feel this grievance could have been avoided if more time had been taken in explaining the situation.’
The claimant was advised of his right to appeal Ms Smith’s decision but no appeal request was made to the respondent.
10. In practice the claimant was employed in helping a fitter carry out work for the repair side of the respondent’s business. In or around the end of January 2010 the claimant’s payslips began to be issued bearing the name Fasa LLP but the claimant continued to carry out the same work as before and his pay did not alter.
11. In May 2010 the claimant was off work for two days following a family bereavement. When the claimant was next paid he noted that he had not been paid for his two days off and on querying the reason why was informed it was because he had not completed a back to work interview and was told to do so with the respondent’s manager Mr Douglas MacDonald. The claimant returned to Ms Smith after speaking to Mr MacDonald and complained to her that Mr MacDonald had sworn at him and spoken to him in an unacceptable way, Ms Smith reassured the claimant that she would sort the matter out, following which Mr MacDonald confirmed to the claimant that he would complete the back to work interview and the claimant was paid for the days on which he had been absent.
12. In September 2010 all the respondent’s industrial helpers were brought into the respondent’s yard to work due to a reduction in available work outside, this was in accordance with the flexibility required under the claimant’s contract of employment.
13. The respondent operates a call out rota whereby maintenance/repair calls outside normal working hours are directed to a fitter to attend to. The claimant was originally paired with a fitter, Mr Kevin Doherty. Call outs were unpredictable, some weeks there were none at all .When there was a call out it was up to the fitter who he would contact to assist him. The claimant gave evidence that he was asked on average six times a month to assist his fitter on call outs for which he was paid £15 per call out, but when subsequently paired with Mr Harry Craney and since being placed to work in the yard found that he was not asked by Mr Craney to assist him on any callouts. The claimant claimed that he was losing out on call outs as the result of the respondent bringing in agency workers and sending them out to work with fitters, which the respondent denied. The tribunal is not persuaded on a balance of probabilities that the reduction in call outs that the claimant was asked to go out on was as a result of him being placed in the yard or the use of agency workers and finds that there was no express or implied contractual entitlement for the claimant to be allocated any out of hours call out work.
14. In December 2010 the claimant was assisting a fitter, Mr Eppleston, on a repair job in Dungannon. The claimant had previously obtained the respondent’s permission to finish on time that day as he had an appointment to attend. While still in Dungannon Mr Eppleston received a telephone call from Ms Margaret Curlett on behalf of the respondent instructing him to next attend an emergency call in Coleraine, Mr Eppleston however pointed out that the claimant could not work late. After finishing the job in Dungannon Mr Eppleston received telephone calls from Mr MacDonald who told Mr Eppleston to drop the claimant off, Mr Eppleston replied that he was on the motorway, Mr MacDonald asked if he could pull off at the next exit and drop the claimant at a bus stop as he needed to get to the next job. Mr Eppleston however dropped the claimant back to the respondent’s premises as the claimant had no money with which to get a bus, so that he would not be late for his appointment. The claimant in his claim form stated that Mr Eppleston was instructed to drop him off on the motorway, which was ‘totally out of order as it is illegal to walk on the motorway as well as dangerous and stupid and I was disgusted that my bosses would put me at risk…’ and that he informed his union after nothing was done when he complained about his treatment to Mr McDonnell and Mr Adrian Cairns, the respondent’s general manager. The tribunal on the evidence of Mr Eppleston are persuaded that the instruction to drop the claimant off came whilst they were driving on the motorway, not that the intention was to instruct that he be dropped off on the motorway itself. No formal grievance was raised by the claimant.
15. On 21 December 2010 a memo was issued to all employees by Fortress Doors NI Ltd/Fasa LLP to advise that due to adverse weather conditions it had been decided to best ensure staff safety to finish work that day, one day earlier than originally planned for the Christmas holidays and to re-open one day early, on Wednesday, 5 January 2011, save for call out teams and any other staff as directed by the management. On receipt of the memo the claimant raised with Mr McDonnell that he had a pre-arranged hospital appointment on 5 January 2011 which he could not change. Mr McDonnell spoke with his superiors about the matter and they left the decision with him whether to allow the claimant to work the next day for Fortress Glass which was not closing early, so that he could return to work on 6 January 2011. Mr McDonnell confirmed to the claimant on 21 December 2010 that he could work for Fortress Glass on 22 December 2010 and return to work on 6 January 2011 as originally planned.
16. On one occasion over the winter time after the claimant had been working in the yard for some months, Mr McDonnell could not recollect exactly when, Mr McDonnell’s manager Mr Franco Gambale asked Mr McDonnell why the claimant was working in the workshop and remarked that he should be outside. Due to the needs of the respondent’s business the claimant remained working in the respondent’s yard as part of the production team for around five months from September 2010, occasionally going out to assist fitters when required.
17. Whilst the respondent employed agency workers when needed for tasks such as heavy lifting there is no evidence before the tribunal on which it is satisfied that the respondent used agency workers in place of its employees to assist fitters.
18. Under the respondent’s handbook provision is made, at page 5, clause c; ‘if there is a temporary shortage of work for any reason, we will try to maintain your continuity of employment even if this necessitates temporarily placing you on short time or having to lay you off work without pay other than statutory guarantee pay’.
19. On 11 February 2011 the claimant was called to see Ms Smith who informed him that due to a downturn in work that the respondent was laying off all industrial helpers, it did not know at that stage how long for but that it might be for two to four weeks, and was not in a position to offer the claimant any alternative work at that time. Ms Smith wrote to the claimant on 14 Feb 2011 confirming the decision to lay off, his entitlement to Statutory Guarantee Payment, assuring him that he was not dismissed and that he should continue to make himself available for work should they contact him to advise that work was available and that they were, ‘doing everything possible to rectify the situation; we will keep you informed of developments and notify you as soon as you are required to return to work’.
20. On 24 February 2011 the claimant wrote a letter of resignation to the respondent.
21. Ms Smith was instructed by the respondent on Friday, 25 February 2011 to bring the industrial helpers back in to work. Ms Smith gave evidence that she tried to contact all the industrial helpers including the claimant but that she did not succeed in contacting the claimant, the claimant disputed this on the basis that he had no missed calls , nor any message facility on his telephone. On the claimant’s own evidence he was however aware that the respondent was bringing the industrial helpers back in to work because he had been telephoned and asked by two other industrial helpers if he had received a call from Ms Smith about returning but that he did not telephone her because he had resigned from his employment at that stage.
22. The respondent received on 2 March 2011 a letter dated 24 February 2011 from the claimant resigning from his employment, stating that he felt that he had been left with no choice due to the way that he had been treated over the last number of months, he stated:-
‘These issues , I feel started when I submitted a grievance letter regarding Jonathan Weir in January 2010 and were ongoing until I was laid off on the 11 February 2011.
I don’t feel that my grievance with Jonathan Weir was taken seriously as CCTV footage was never looked up and disclosed even though I was told by Jonathan Weir that I was seen clocking another member of staff out, therefore falsifying records. This, according to the handbook, is gross misconduct and I feel that I should have been proved innocent rather than given the benefit of the doubt on this matter.
Another instance when I was asked by Linda Smith to complete a back to work interview with Dougie MacDonald. When approached, Dougie swore at me and his conduct left me feeling very belittled and extremely annoyed. Following Linda’s request at the previous meeting regarding Jonathan Weir, I did not put this in writing but approached her to make a complaint. I never received an apology, but did get my back to work interview done. I don’t feel that Dougie conducted himself in an appropriate manner especially with his choice of language.
On yet another occasion I feel that I was singled out by Franco Gambale when I was out helping a fitter, John Eppleston. I had requested to finish on time that particular day and was approved the day before by Dougie MacDonald and Adrian Cairns. Whilst driving back from Dungannon, John was ordered by Franco through a phone call, to drop me on the motorway and get me to make my own way back to the yard simply because I could not work any later. This was due to a childcare appointment. John was then told it was a work directive to drop me at the nearest bus stop by Dougie, who was the person who I had got approval from to finish on time. I was very annoyed at this and feel this was totally out of order. This caused me much unnecessary stress. I reported this to Brendan McDonagh and Adrian Cairns and requested a meeting regarding the way I was being treated by the company, however nothing came of it.
I feel that I was singled out in December 2010 regarding the change in holidays. I was unable to return to work a day early due to other commitments but was told by Franco Gambale and Linda Smith that I had to return a day early as I was stopping a day early. This was due to the bad weather and so closing the company early was out of my control although I was available for work that day. In the end I was brought in to work for Fortress Glass so that I could return on the 6th, a day later than the other workers. I am of the opinion that if it had been anyone else in the company it would not have been such a big issue but this was just another excuse to single me out.
On Thursday 3rd February 2011 Franco Gambale entered the yard demanding off Brendan McDonagh why was I working in the yard saying that he didn’t want me working there as I was an outside man. At this time I had been working indoors for approx 6 months with a few days out here and there, which Franco was clearly aware of. Franco informed Brendan that from the following Monday that I would be back outside. The following Monday I was working in the yard, I was out on the Tuesday, in the yard on Wednesday and Thursday then out with a fitter on the Friday before being called in and laid off at the end of the day. I know this not to be true as a temporary worker from an agency has managed to keep his job in the company despite permanent members of staff being laid off.
I am also aware that whilst I have been laid off there have been yard workers sent to work in Fortress Glass, however I was told they were full to capacity. I am also of the understanding that a yard worker, David Frain was doing my helpers job with Fitters. I find myself asking the question, Is it legal? that someone else should be allowed to do my job but I am laid off because there is no work for me. I feel that I was sent from the yard to outside in my final week to make it easier for Fortress as they were laying off other helpers.
I think it is safe to say that I am disgusted and totally aggrieved with how I have been treated and spoken to in Fortress Doors and that any issues I have had, have been brushed under the carpet. I have been a loyal employee for over 4 years and have always gave my best to the company but I have been left with low self esteem and am very stressed about the whole matter. I feel that I have been bullied out of my job and by laying me off, Fortress were trying to push me out of the company.’
23. The respondent by letter dated 7 March 2011 acknowledged the claimant’s resignation.
LEGISLATION
24. Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.
25. Circumstances in which an employee is dismissed by his employer include, at Article 127(c) of the 1996 Order, if the employee terminates a 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.
26. Whether an employee is entitled to terminate his contract of employment is to be determined in accordance with contract law. It is established in case law that it is not enough for the employee to leave merely because his employer acted unreasonably but is a question of whether his employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or, which shows that the employer no longer intends to be bound by one or more essential terms of the contract.
27. Harvey on Industrial Relations and Employment Law/Division D1 Unfair Dismissal/3 discusses termination by the employee/constructive dismissal at paragraphs 401- 600 and sets out at:-
Para 403 how in order for an employee to be able to claim constructive dismissal four conditions must be met:-
‘(1) There must be a breach of contract by the employer. This may be an actual breach or anticipatory breach.
(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in 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 a 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.’
Para 404
‘If the employee leaves in circumstances where these conditions are not met, he will be held to have resigned and there will be no dismissal within the meaning of the legislation at all.’
28. Many forms of unreasonable conduct will constitute a breach of the implied term of trust and confidence in the employment contract and it is recognised that there is an implied duty such that the employer shall not without reasonable and proper cause conduct itself in a manner calculated and/or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee. Conduct needs to be repudiatory to breach the implied term of trust and confidence.
29. Under Article 130 of the 1996 Order, when a dismissal has taken place, in determining whether the dismissal is fair or unfair it is for the employer to show the reason for dismissal and that it is either a reason set out at paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
APPLICATION OF LAW TO FACTS FOUND
30. The claimant made the case that when first employed by the respondent he was informed verbally by Mr Fee who was at the time a charge hand for the respondent, and Mr Robert Stinson the respondent’s contract manager, that his role was to assist a fitter in the erection of roller shutter doors and single steel security doors but that he was moved from fitting to the maintenance end of the business, that is, to Fasa, without notice, which was a breach of his conditions of employment, that he was a fitters helper, not a production operative, that he was unable to access call out work or maintain his skills as an industrial helper when placed to work in the yard, that despite raising concerns he was not given any explanation as to why, that he was treated with disrespect, distain, made to feel a nuisance and not treated fairly, that the respondent brought in agency staff rather than put the claimant back in his stated role and that he was treated in such a way from January 2010 to February 2011 that once laid off with other industrial fitter’s helpers, despite not being allowed to do the job for five months, made him feel worthless and unable to return to that situation.
31. On consideration of all the evidence before it the tribunal finds that the four conditions required for an employee to be able to claim constructive dismissal have not been met and are not satisfied on a balance of probabilities that the claimant has terminated the contract under which he was employed in circumstances in which he was entitled to terminate it without notice by reason of the respondent’s conduct.
Taking the first of the four conditions in order:-
(1) There must be a breach of contract by the employer.
The tribunal finds that the claimant signed a contract on 20 August 2006 to confirm his acceptance of employment with the respondent on the terms and conditions set out therein and that claimant was employed by the respondent as an industrial helper rather than a ‘fitter’s helper’. The tribunal considers that express provision in the claimant’s contract of employment makes it quite clear that the claimant could be transferred whenever necessary to alternative departments or duties within the respondent’s business. The tribunal is satisfied that the claimant had no express or acquired implied contractual entitlement to receive out of hours call out work and furthermore that his contractual pay was not altered by the change in title of his payslips to Fasa LLP or his move to carrying out production work.
The tribunal
notes that in January 2010 no formal accusation was made by the respondent
against the claimant in circumstances where the respondent had cause to make
enquiry of its employees and that no reference was made to gross misconduct
save by the claimant. In May 2010 the
non-payment of pay and back to work interview issue were quickly resolved with
the assistance of Ms Smith. In September 2010 all the respondent’s
industrial helpers were brought into the respondent’s yard to work due to a
reduction in outside work, this was in accordance with the flexibility required
under the claimant’s contract of employment. In December 2010, based on
Mr Eppleston’s evidence, he was asked to drop the claimant off during the
time he was driving on the motorway, not that he was instructed to drop him off
specifically on the motorway. The issue over the Christmas holiday dates in
December 2010 arose due to adverse weather conditions and was resolved on
the day on which it arose. There is no evidence before the tribunal on which
it is satisfied that the respondent used agency workers in place of its
employees to assist fitters. The tribunal is persuaded on the evidence before
it that the claimant was moved to do other work within the business to best
service the needs of the respondent’s businesses and that the respondent did so
to keep the claimant in employment at a time when there had been a downturn in
other available work, that the unfortunate need to lay off industrial helpers
including the claimant in February 2011 was carried out within the terms
of his contract of employment, and that these steps were not an attempt to
single out or ‘push out’ the claimant but to best manage business in response
to available work ,including when work became available and allowed the
respondent to move the majority but not all of its industrial helpers back to
outside work. The tribunal is not, on the facts found from the evidence
presented, persuaded that there has been a breach of any express term of the
claimant’s contract of employment.
There is no evidence upon which the tribunal is satisfied that the claimant’s treatment was an attempt to force him out of his job, due to his ‘speaking up’, or trade union membership. The tribunal on consideration of the series of incidents referred to by the claimant from January 2010 together, does not consider that the company in its treatment of the claimant, without reasonable or proper cause, conducted itself in a manner or course of conduct calculated and/or likely to destroy or seriously damage the relationship of confidence and trust between the claimant and the respondent and is not persuaded on the facts found from the evidence presented that the cumulative series of acts taken together amount to a breach of the implied term of trust and confidence.
In the absence of a finding of a breach of an actual or implied term of the claimant’s contract of employment the remaining three conditions to be satisfied to claim constructive dismissal are not met.
Accordingly the tribunal finds that the claimant resigned from his employment and no dismissal within the meaning of Article 127 of the 1996 Order has taken place.
CONCLUSION
32. The unanimous decision of the tribunal is that the claimant has not been dismissed as defined in Article 127 of the 1996 Order and dismisses the claimant’s claim of unfair dismissal.
Chairman:
Date and place of hearing: 13 September 2011, Belfast.
Date decision recorded in register and issued to parties: