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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Nicholson v Norbrook Laboratories Ltd [2011] NIIT 01834_10IT (20 April 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01834_10IT.html
Cite as: [2011] NIIT 1834_10IT, [2011] NIIT 01834_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1834/10
CLAIMANT: Robin Nicholson
RESPONDENT: Norbrook Laboratories Ltd
DECISION
The unanimous decision of the tribunal is that the claims of constructive unfair dismissal, unauthorised deduction from wages and failure to pay wages are dismissed.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mrs M Heaney
Mr J McAuley
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Mr G McGinnity, Solicitor, of the respondent’s Legal Department.
Issues
1. The issues for the tribunal to determine were whether:-
(i) the claimant had been constructively and unfairly dismissed; and
(ii) the claimant had been paid his full contractual wages as a label store operative.
Background
2. The claimant started work with the respondent on 5 November 2007. He was originally employed as a quality assurance technician. In July 2009 he applied for an internally advertised post as a label store operative, was interviewed and took up that post on 31 August 2009. He resigned by letter dated 8 June 2010, giving one week’s notice.
3. The respondent is a pharmaceutical manufacturer which operates three plants in the Newry area. For the purposes of this case, the relevant plant is the Station Works plant.
Contentions of the parties
4. The claimant alleged that at the interview for the label store operative post on 22 July 2009, there had been an agreement between him and the two interviewers, Mr Ronan Kimbley and Ms Ruth Cartmill, that his hourly rate would, on completion of training, be increased to that of others engaged in that work area, including Mr Hugh Finnegan. He also alleged that he had been harassed and treated unfairly by the respondent and that he had resigned as a result.
5. The respondent denied that there had been any agreement to increase the claimant’s wages at any time. The hourly rate had been set at £7.59 and the claimant had received that amount in full. The respondent also denied that the claimant had been harassed or treated unfairly and further denied that the claimant had resigned for any work-related reason.
The hearing
6. The tribunal heard evidence from the claimant, and from four witnesses called by the respondent, Ms Ruth Cartmill, Mr Steven Walton, Mr Ronan Kimbley and Mr Gareth McConville. The tribunal was also referred to two separate bundles, one from the claimant and one from the respondent.
Relevant findings of fact – wages issue
7. The claimant was interviewed for the post of label store operative on 22 July 2009 by Mr Ronan Kimbley, the relevant production manager and by Ms Ruth Cartmill, who was employed in the respondent’s Human Resources Department.
8. The post had been internally advertised in accordance with the respondent’s settled practice. The advertisement did not specify the applicable hourly wage rate.
9. The claimant stated in evidence that he had said during the interview that he would accept the post on the basis that, after a period of training, he would be paid the same as ‘other label store operatives’. He also stated in evidence that the interviewers had agreed to this proposal. His evidence was that he had not stipulated the length of the training period and he could not tell the tribunal what the correct hourly rate should have been once the ‘training period’ had been completed.
10. Ms Cartmill and Mr Kimbley both denied that any such agreement had been reached during the course of the interview or at any other time.
11. The claimant signed a new contract of employment on 24 July 2009. That contract clearly stated that the hourly rate for the post was £7.59. The contract contained no provision for an increase following the completion of a training period. The claimant’s contract for his previous post as a quality assurance technician had, in contrast, provided for a starting hourly rate, followed by an increased hourly from Week 13 and a further increase from Week 24. The claimant did not challenge or in any way query the terms of the written contract which he signed in respect of the label store operative post.
12. The claimant approached Mr Kimbley in late November or early December 2009 to ask for a wage increase. Mr Kimbley told the claimant that he would not recommend an increase and that the claimant was still not up to speed on the job. Neither the claimant or Mr Kimbley stated in evidence that the claimant had argued, during this informal meeting, that he had been promised a wage increase on completion of training.
13. The claimant then wrote an undated letter to the respondent’s Human Resources Department which was received in early December 2009. He stated in that letter:-
“At the interview, I did state that I would do the job if I received parity in my wage after a period of training.”
He did not allege in that letter that there had been any agreement on the part of the interviewers. He did not specify the individuals in respect of whom he was claiming ‘parity’ and he did not specify the length of the ‘period of training’.
14. On receipt of that letter, Ms Cartmill checked whether Mr Kimbley had made any request for a pay increase for the claimant. Mr Kimbley confirmed that he had not done so and that he had no intention of doing so. Ms Cartmill then confirmed the hourly rates for the other employee in the Station Works label store, Mr Hugh Finnegan and also for Mr Mark McBride who worked in a label store elsewhere in the respondent organisation. Their hourly rates were £9.40 and £8.92 respectively.
15. The clear evidence from Ms Cartmill was that both these employees were supervisors. In fact, Mr Finnegan was the claimant’s supervisor and therefore his immediate line manager, in the Station Works label store. That fact, together with long service, explained their higher hourly wage rate.
16. The claimant denied in evidence that he had known during his period of employment that Mr Finnegan was his supervisor. The tribunal does not find this evidence credible. At one point in his cross-examination, when he was explaining how at two different points in time, he had changed his shift pattern from 8.00 to 4.00 to 9.00 to 5.30, the claimant said that he had asked permission of his supervisor. When he was asked who that supervisor was, he replied to the tribunal ‘Hugh Finnegan’.
This was surprising given that the claimant had previously asserted during cross-examination that he had first been told by the respondent that Mr Finnegan had been his supervisor in correspondence relating to the current tribunal claim. He had denied in his evidence that Mr Finnegan had been his supervisor and had said that the respondent was ‘making this up’. When it was put to the claimant that his statement that he had asked permission for the shift change of Mr Finnegan as his supervisor was inconsistent with his earlier evidence, the claimant stated that it was a mistake; he had not asked permission of Mr Finnegan, he had only discussed it with him.
The tribunal concludes that Mr Hugh Finnegan was the claimant’s supervisor in the label store.
17. Ms Cartmill replied to the claimant on 8 December 2009 and stated:-
“As you are aware, you commenced employment in this position as a labelling operative on 31st August 2009 and are currently paid £7.59 pence per hour. We have reviewed this rate of pay and also borne in mind your duties and responsibilities since you commenced in this position, three months ago. However, we regret to inform you that you will not receive a salary increase at this time.”
18. The claimant did not raise any further query about his hourly wage rate with the respondent until after his resignation, some six months later.
Decision – wages issue
19. As indicated above, the tribunal has significant doubts about the claimant’s credibility:-
(i) The claimant’s assertion that he had not been told that Mr Finnegan had been his supervisor until after he had left the respondent’s employment and had commenced tribunal proceedings, was almost immediately contradicted by his own evidence when he said that he had asked Mr Finnegan for permission, as his supervisor, for a shift change. His immediate revision of that evidence to state that he had not asked Mr Finnegan for permission but that he had only discussed the shift change with him was entirely convincing.
(ii) The claimant also stated in cross-examination that he had worked an 8 – 4 shift on one occasion only in April 2010. When pressed in cross-examination, this rapidly changed to ‘one or two weeks’ and then to ‘I cannot remember how many weeks’ and ‘maybe in March and April’.
20. There is a straightforward conflict in evidence on this issue between the claimant on the one hand, and Ms Cartmill and Mr Kimbley on the other. The tribunal has concluded that, on the balance of probabilities, there was no agreement between the claimant and the respondent on 22 July 2009 to increase the claimant’s hourly rate following completion of training. If there had been any such agreement, it would have been recorded in the written contract signed by the claimant or the claimant would have challenged its omission from that written contract. If there had been an agreement, as alleged, the claimant would have expected a specific provision similar to that which had been contained in his original contract, setting out a timetabled pay increase. Furthermore, the claimant did not allege to Mr Kimbley that there had been any such agreement when he approached Mr Kimbley in late November or early December 2009. The claimant’s letter in early December to the respondent’s Human Resources Department fell short of a specific allegation that there had been such a clear agreement.
The claimant did not press the matter further after receiving Ms Cartmill’s letter of 8 December 2009. If there had in fact been an agreement, as alleged by the claimant, it would have been a simple matter for the claimant to have said to Ms Cartmill at that point or at any time before he resigned:-
“But you agreed to an increase in my pay … .”
The claimant’s evidence about the alleged agreement is also inherently unlikely to be correct. On his own evidence, the duration of the training period had not been specified. No specific wage increase was fixed. It is improbable, in the extreme, that an employer would agree in the course of an interview that a employee would, after a non-specified period, receive the same rate as his supervisor who had significantly longer service and greater responsibility.
21. The claims in respect of the hourly wage rate, whether expressed as an unauthorised deduction from wages, a failure to pay wages claim or a breach of contract claim are therefore dismissed.
Constructive unfair dismissal – relevant law
22. To succeed in a claim of constructive unfair dismissal, the claimant must establish:-
(i) that the respondent had committed a serious breach of contract entitling him to regard the contract as having been repudiated. In Brown v Merchant Ferries Ltd [1988] IRLR 682 the Northern Ireland Court of Appeal said that, although the correct approach to constructive dismissal was to ask whether the employer was in breach of contract and not whether the employer had acted unreasonably, if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract;
(ii) that he left his employment with the respondent because of that serious breach of contract;
(iii) that if there had been a serious breach of contract, that the claimant had not delayed his resignation and therefore accepted and affirmed any such breach of contract.
Relevant findings of fact – constructive unfair dismissal
23. Following the submission of his letter of resignation, the claimant left the respondent’s premises and was on sick leave during his notice period which expired on 15 June 2010.
24. The claimant’s letter of resignation of 8 June 2010 did not specify the reason for his resignation and stated simply:-
“I am writing to give intention [sic] that I will be leaving Norbrook with effect of one week’s notice.”
25. The claimant then wrote to Ms Cartmill on 14 June 2010 enclosing sick certificates for his remaining days of employment. He also stated:-
“I do have some outstanding grievances about my employment at Norbrook.”
The claimant did not state that those matters caused him to resign, but he went on to list 11 separate items, which were:-
“(1) HR failing to speak to me about my resignation.
(2) Norbrook failing to remunerate me as agreed at interview and pay successor more.
(3) Receiving my pay-slip opened, the week after a query about my hours of work.
(4) Supervisor rummaging through my bin to try and prove mistake that did not exist.
(5) Being informed of mistake without evidence so I had no reply.
(6) Informed I was being moved to Packing Line without due reason.
(7) Being offered my old job back only to be informed I had to be interviewed.
(8) Labels returned after one week after I was accused of mistake.
(9) Insufficient lighting to prevent further mistakes.
(10) Failure of HR and manager at meeting to accept advice on how to prevent mistakes.
(11) Failure to work to existing SOPs (Standard Operating Procedures) in my work area.”
26. These matters were slightly amplified, but not significantly changed in a written document submitted by the claimant to the respondent shortly thereafter.
27. The claimant and the respondent agreed to deal with these matters through the statutory modified grievance procedure and the claimant’s grievances were not upheld.
28. The claimant, when giving evidence, was unclear about the exact reasons which he was claiming had motivated his resignation. When specifically asked, he said that the ‘final reason’ was:-
“I was going to be placed in a position where I was going to be criticised for the foreseeable future.”
When asked for other reasons, the claimant said:-
“I was placed under intense pressure at a difficult time in my life. There was a series of events leading up to my resignation.”
29. The tribunal is therefore proceeding on the basis that the reasons set out in the modified grievance and reasons set out in the preceding paragraph are the reasons which the claimant states caused him to resign from his employment.
30. Turning first to the reasons set out in the claimant’s grievance and dealing with those reasons as numbered in Paragraph 25. above:-
(1) The claimant explained in evidence that this related to the failure of the respondent to hold an exit interview with him. He alleged that this was a requirement of the respondent’s internal procedure. An allegation that an employer did not hold an exit interview after a resignation letter was submitted, particularly when the claimant had then gone on sick leave throughout the notice period, cannot assist a constructive unfair dismissal claim. If there was any failure on the part of the respondent in this respect, that failure cannot have been a factor influencing the decision of the claimant to resign. It post-dated that decision.
(2) The wages issues has been dealt with above. The tribunal has concluded that the respondent had not entered into any agreement to increase pay. Even if there had been such an agreement, the claimant had worked on with the respondent, at the hourly rate of £7.59 without any further complaint for a period of some six months after his request for an increase had been refused. He would therefore have affirmed any such breach by his conduct.
(3) The claimant stated that this issue referred to an occasion when a Mr Simon Russell, one of the production line managers, handed the claimant’s wages notification to him opened. The claimant said that Mr Russell had handed it to him and had apologised. He had said it had been opened in error. The claimant was unable to satisfactorily explain why this matter was so important to him or why it had caused or partly caused him to resign several weeks later.
(4) The claimant gave evidence that on one occasion, Mr Russell had entered the label store to check the schedule setting out the labelling requirements for various product runs. Mr Russell had not been able to find the schedule on the claimant’s desk but had found it after checking the claimant’s bin. Mr Russell had a key to the label store and was perfectly entitled to enter the store as he considered necessary. He was equally entitled to look for and to check the schedule. The claimant’s complaint that he was ‘rummaging through my bin to try and prove something that did not exist’ was not supported by any evidence before the tribunal.
(5) This matter apparently related to an incident in April or May 2010 in which the claimant had been asked to provide two rolls of labels for a product run of Noromectin. The claimant had managed to provide one correct roll of labels and one incorrect roll of labels. Fortunately, the mistake had been spotted by a production line worker before any damage had been done. The claimant’s complaint is that the two rolls were not immediately returned to him by the production line staff. Since the claimant knew he had made the mistake and did not dispute that the mistake had occurred, the tribunal cannot see how this matter would have made any difference or how it could possibly have amounted to repudiatory conduct or a breach of contract.
(6) The claimant does accept that he was given a reason for the proposed move, ie his poor performance and mistakes, and it is difficult for the tribunal to understand what this part of the grievance was meant to be about.
(7) The claimant stated that he was very worried by the suggestion that he would have to be interviewed for his old job. The evidence from Mr Kimbley and Mr Walton was that he had not actually been offered that job. It had been discussed as a possibility and no more. The evidence from these two witnesses was clear and consistent and the tribunal accepts it. Given that the respondent company clearly exercised a degree of formality in relation to internal transfers, as evidenced by the interview process in which the claimant had participated to transfer to the label store operative post, there is no obvious reason why the claimant would have been upset or surprised at the prospect of an interview. Mr Walton who would have been the relevant line manager had told him he would be happy to have him back, so it is difficult for the tribunal to understand why the prospect of an interview would have caused any concern. Furthermore, if the claimant was, as he says, upset by the prospect of an interview, or by any possible delay, he did not raise it with anyone before resigning. For example, he did not ask when the interview could be held or how long any delay in his transfer might persist.
(8) This grievance related to the delay in returning labels to him after he had made a mistake. Again, since the mistake was clear and accepted, this is not and could not be a serious issue.
(9) The query about lighting is difficult to understand. The claimant worked in the label store. He had a desk on one side of the store, as had Mr Finnegan. To the other side of the store there was shelving which contained the labels. The claimant worked off a weekly schedule which indicated the product runs and the necessary codes for the correct labels. With the assistance of a computer his task was to select the correct labels to match the production runs set out in the schedule. The claimant stated that it was difficult to read the labels at the shelves. However, he accepted that his desk area was well lit. Therefore the claimant, if he had wished, could have checked, re-checked, and checked again the accuracy of the labels which he had selected against the schedule and against any codes that he had obtained through his computer at his desk. He could, if he felt it was necessary, have checked 10 times, before putting the labels out for collection. Additional lighting in the shelving area of the label store would not have dealt with the claimant’s failure to check properly what he was doing.
(10) The claimant alleges that ‘advice’ which he had given was not accepted. The claimant was reasonably vague about the nature of this advice and when it was given. It appears that he had suggested that lighting should be improved in the shelving area (see above), that the labels, once checked should be placed in a cage and that he should physically carry the labels to the production line. He argued that those changes would have enabled him to carry out further checks on his work. The tribunal does not see how that could be the case or how the respondent could have concluded that that could be the case. As indicated above, the claimant had a well lit desk area with all the necessary information to hand. It was there that he should have checked, double-checked and if necessary, tripled-checked his work for accuracy.
(11) The claimant failed to produce any standard operating procedures which he alleged that had been broken. In any event, it was the claimant’s failure on repeated occasions to select the correct labels which was the problem from the respondent’s point of view and not any alleged failure to follow standard operating procedures by the claimant or others.
31. Looking at what the claimant had suggested was ‘the final reason’, ie that he was going to be placed in a period of uncertainty, no queries were raised by him about how long an interview process would take or what he would be doing in the meantime. He did not raise this issue with any manager.
32. The tribunal concludes that the stated reasons for the resignation, taken separately or together, are not sufficient to ground a complaint of constructive unfair dismissal. The claimant, on his evidence, accepts that he had made several mistakes. It is clear that these mistakes, if they had not been spotted and corrected by others, could have had serious consequences for the respondent and potentially for the respondent’s customers. These mistakes had continued into April and May 2010. Nevertheless the respondent did not seek to dismiss, or even discipline, the claimant. The respondent had discussed and was going to arrange a move to other work within the Station Works plant. The claimant accepts that he had made no objections to this proposal at the time and that he had said ‘fine’ in response to Mr Kimbley. The claimant also accepts that he had told Mr Kimbley, when Mr Kimbley had later asked him why he had resigned, that he was going to fix up his house and sell it. He accepts that he also spoke to Mr Walton in similar terms. The claimant stated in evidence that he had told Mr Walton that he was unhappy with working in the respondent’s organisation but that was not the evidence of Mr Walton and this suggestion appears to have emerged for the first time before the tribunal.
33. The reasons put forward by the claimant are not sufficient to amount to repudiatory conduct or a breach of contract on the part of the respondent. The claimant had raised a query about his pay in December 2009 but did not query that matter further after receiving a rebuttal from Ms Cartmill and worked on for a period of some six months. If there had been a breach of contract in that respect and the tribunal has concluded that there was not, the claimant would have affirmed that breach and waived the right to complain by his conduct. The other matters raised by the claimant to support his claims were simply trivial.
The claim of constructive unfair dismissal is therefore dismissed.
Vice President:
Date and place of hearing: 11 – 12 April 2011, Belfast
Date decision recorded in register and issued to parties: