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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Scates v Allied Bakeries Ireland [2011] NIIT 02695_10IT (17 May 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/02695_10IT.html
Cite as: [2011] NIIT 2695_10IT, [2011] NIIT 02695_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2695/10
CLAIMANT: Alex Scates
RESPONDENT: Allied Bakeries Ireland
DECISION
WRITTEN REASONS
The unanimous decision of the tribunal was that the claim of constructive unfair dismissal was dismissed. That decision was given orally at the conclusion of the hearing. The written reasons for that decision are set out below.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr E Grant
Mr B Heaney
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Eversheds, Solicitors.
The issue
1. The only issue for the tribunal to determine was whether the claimant had been constructively and unfairly dismissed from his employment with the respondent contrary to the Employment Rights (Northern Ireland) Order 1996.
Background
2. The respondent operates a bakery in Belfast.
3. The claimant had been employed by the respondent for approximately 30 years in Belfast until 31 May 2010.
4. The claimant alleged that he had been treated unfairly by the respondent. He alleged that he had been overworked, not properly trained, unfairly disciplined on two occasions and that he had been put under pressure to accept early retirement on 31 May 2010. He stated that he had been a supervisor, not a manager, and that unfair demands had been made off him by the respondent. The claimant stated that he was a practical ‘hands-on’ type of person and not a trained manager. He stated that he had differences with his line manager, Mr Neil Todd, and that he was no longer able to work with him.
5. The respondent denied all the claimant’s allegations. Its case was that the claimant had been treated fairly, that the claimant had decided to retire voluntarily and to take his pension with effect from 31 May 2010 and that the claimant had been placed under no pressure by the respondent to make that decision.
Relevant findings of fact
6. At the beginning of 2009, the respondent’s business was substantially re-organised and a new general manager was appointed to the Belfast Bakery. There were significant changes in the way in which business was conducted within the bakery. Those changes effected the entire workforce, including the claimant. In particular, the claimant’s line manager, Mr Todd, was required to have more frequent contact with the claimant and with other staff who reported directly to the claimant.
7. The claimant had originally been employed by the respondent as a driver; but by 1997 he was working as a technical services charge hand. In May 2009, as part of the re-organisation of the respondent’s business, the claimant was appointed as a technical hygiene supervisor. He was responsible for five or six employees. He was given a detailed job description for his post which set out specific requirements, including the completion of performance appraisal reports for his staff, responsibility for discipline, attendance and generally for the maintenance of hygiene standards in the bakery.
8. The claimant refused to accept that his new post was a ‘management post’. In evidence, he persistently drew a distinction between a supervisor’s or a charge hand’s post on the one hand and a management post, on the other. The tribunal cannot see any material difference. The claimant’s new post from May 2009 was clearly a post with significant managerial responsibilities.
9. The claimant’s line manager for the last 10 – 12 years of his employment was Mr Neil Todd. The tribunal was referred to performance appraisal reports completed by Mr Todd on the claimant. The first from October 2006 – October 2008 was very complimentary. His performance had been ‘commendable’. Mr Todd suggested that the claimant should ‘free himself up to undertake a more proactive supervisory role’ and referred to ‘some minor staffing issues’ which required focused supervision and performance management.
10. The next reporting period was October 2008 – September 2009. The relevant performance appraisal report referred to difficulties with supervisory performance and weaknesses in the areas of paperwork and systems. This seems consistent with the claimant’s evidence and with his repeated assertions to the tribunal that he was not a trained manager and that he had difficulty in these areas.
11. The performance appraisal reports made it plain that the claimant had been given access to and had completed several management training packages and also training in information technology. When this was put to the claimant in cross-examination, the claimant’s reaction was to criticise the standard of the training. For example, he complained that an Excel training package had been delivered to a group of 20 staff, including the claimant. The claimant stated that this had just been a case of ‘going through the motions’. The claimant did not produce any specific evidence to suggest the training was not sufficiently detailed or that other managers or supervisors had had problems following the completion of that training. The collective experience of the tribunal is that information technology and management training is often given to groups of staff and that it is rarely given individually. The training afforded to the claimant appears to have been perfectly standard training and the claimant’s complaint that he had not been properly trained as a manager is not supported by the evidence before the tribunal.
12. The claimant had been given two verbal warnings. The first occasion was in June 2009 and followed an incident in which the claimant used inappropriate language to a subordinate. The claimant did not appeal this finding. He argued before the tribunal that his failure to appeal the penalty and the disciplinary finding was that he was going on holiday the day after the penalty had been imposed. However, the tribunal concludes that he could have easily, if he had wanted to, written a brief note of appeal in the time available or he could have applied for an extension of time. He did neither.
13. The second incident occurred in November 2009. A health & safety inspector employed by the respondent observed one of the claimant’s staff using a ‘high lift’ without a safety harness or helmet contrary to standard operating instructions. It was the claimant’s responsibility to ensure that appropriate safety equipment was used at all times. Following an investigatory and disciplinary process, the claimant was given a Verbal Warning. That decision to impose a Verbal Warning was not taken by Mr Todd, but by a Mr Bailey.
14. The penalty was upheld on appeal. It should be noted that the sanction imposed in each of these two disciplinary incidents was the lowest level of disciplinary sanction available to the respondent under its procedures.
15. The claimant went on sick leave on 15 December 2009 with ‘workplace stress’ following the imposition of the second disciplinary warning. He was subsequently involved in a road traffic accident in February 2010 and sustained a broken leg and other injuries. The respondent arranged for the claimant to be provided with the services of a mental health counsellor in relation to workplace stress and for the claimant to be examined by a consultant orthopaedic surgeon in relation to his road traffic accident injuries.
16. The claimant met with the respondent’s occupational health adviser, Mrs Aurora Gilbert and Mrs Jacqueline Canning of the respondent’s Human Resources Department on 21 April 2010. The claimant alleged initially that he had agreed with Mrs Canning during this meeting that he would leave his employment at the end of May 2010 and that he would be paid to the end of May 2010. He further alleged that he had been pressurised to resign. The tribunal does not accept that version of events. The evidence of Mrs Gilbert and Mrs Canning was consistent and clear; the claimant had been encouraged to return to work and that had been the sole purpose of the meeting. During the meeting he had been offered a temporary administration post for a period of three to five weeks to enable a final and full recovery from his road traffic accident injuries, before resuming his old duties in his original post. Both the temporary post and his original post would have been line-managed, either directly or indirectly, by Mr Todd. The claimant had raised no objection to continuing to work with Mr Todd during the course of that meeting and had agreed to think about the temporary post. He further agreed to phone Mrs Gilbert later that week with his answer. He did telephone Mrs Gilbert on that Friday and simply stated the he did not want to come back to work and that he wanted to retire. Mrs Gilbert and Mrs Canning recalled that during the meeting the claimant had not seemed keen to return to work. He had raised new medical issues, such as back pain and nerve pain in his fingers, which were not contained within the medical reports.
17. The tribunal concludes that the claimant did not say during the meeting on 21 April 2010 or during the telephone call to Mrs Gilbert on 23 April 2010 that he was retiring under protest or that he had any complaint or grievance against Mr Todd or the respondent in general.
18. The claimant retired with effect from 31 May 2010.
19. During the disciplinary meeting relating to the second incident, ie the health & safety incident, the claimant had a discussion with Mr Wade who was responsible for transport within the respondent’s organisation. The claimant’s evidence was that he had been offered a driver’s job by Mr Wade and that this offer had subsequently been withdrawn. The respondent’s case was that the offer had been made, but it had been up to the claimant to consider the offer and to come back to Mr Wade with an answer. The claimant had failed to do so. It appears to the tribunal significant that there was no mention of this job offer from Mr Wade, either during the meeting of 21 April 2010 at which his return to work was discussed or in the subsequent telephone conversation of 23 April 2010. The tribunal therefore does not accept the claimant’s recollection of these events is accurate and prefers the respondent’s version.
Relevant law
20. 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, then it 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 had not accepted and affirmed any such breach of contract.
Decision
21. The tribunal concluded that there was no evidence of a repudiatory breach of contract by the respondent which would have entitled the claimant to resign in response. The two disciplinary incidents relied upon by the claimant, appear to have been handled correctly by the respondent. Furthermore, the penalty imposed by the respondent in each case was the least serious penalty available under the respondent’s disciplinary procedure. The claimant also appears to have been given significant training in his management/supervisory role and in information technology. The respondent dealt with the claimant’s absence sympathetically, arranging for the services of a mental health counsellor and for a full report to be prepared by an orthopaedic surgeon. In the end, the respondent was prepared to further facilitate the claimant with a temporary administration post for three to five weeks to enable a full recovery to be made from the road traffic accident injuries and then to facilitate a return to the claimant’s original post. The claimant did not, at the crucial meeting on 21 April 2010, object to working with Mr Todd and did not raise this as an issue in his subsequent telephone conversation with Mrs Gilbert on 23 April 2010, or indeed in the paperwork applying for retirement and payment of his pension.
22. The claim of constructive unfair dismissal must therefore fail in the absence of any breach of contract on the part of the respondent.
Vice President:
Date and place of hearing: 27 April 2011, Belfast
Date decision recorded in register and issued to parties: