Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02869_10IT.html
Cite as: [2011] NIIT 02869_10IT, [2011] NIIT 2869_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2869/10

CLAIMANT: Sean Dickinson

RESPONDENT: Fyfes Vehicle & Engineering Supplies Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Mr D Hampton

Mr B Hanna

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Diamond Heron, Solicitors.

Issues

1. The claimant claims that he was unfairly dismissed. He did not have 12 months’ service with the employer and believes that the reason or main reasons for his dismissal were asserting statutory rights, namely:-

(a) breach of Working Time Regulations, in that he was not able to take lunch breaks or rest breaks; and

(b) health & safety issues, in that he made complaints about being asked to move heavy equipment.

The respondent contends that the claimant was not dismissed but resigned.

Findings of fact

2. The claimant was employed by the respondent as a van driver from March 2010 until his employment terminated on 10 November 2010. He worked 40 hours per week earning £237.20. The claimant delivered to the respondent’s customers in the Donegal area. As part of his employment he was also instructed to pick up parts from other suppliers on behalf of a particular customer of the respondent. The claimant found this customer difficult to work with and felt that he should not have to pick up parts from other suppliers. The claimant contended that the customer was verbally abusive and bullying towards him.

3. On 8 November 2010 the claimant collected parts from other suppliers for the customer. He waited 20 minutes at the first collection point and five or ten minutes at the second. When he arrived with the customer he did not speak to the customer but left a note to say that it would be the last time he would lift parts as he did not have the time and was not taking responsibility for the parts. The claimant continued with his deliveries and on return to the depot that evening gave his manager, Mr Elliott, a copy of the note. The claimant contended that because of the extra time required to collect parts for this customer he was unable to take his rest breaks or lunch breaks. The claimant finished work at 5.30 pm. He was generally back at the depot by 4.30 pm. At this stage he had to prepare his returns, a task which takes approximately five to ten minutes on average.

4. The claimant returned to the customer’s premises on 10 November 2010 where he spoke to the customer. The customer told the claimant that he was finished with his run. The claimant then telephoned Mr Elliott, who told him that he was going to be transferred to the North Run and taken off the Donegal Run. The claimant continued with his deliveries and at the end of the day he had a meeting with Mr Elliott. At that meeting, Mr Elliott acknowledged the claimant had difficulties with the individual customer concerned and said that the solution was to change routes.

5. The tribunal heard a conflict of evidence on what then transpired at the meeting. The claimant said that he told Mr Elliott that the employer had a duty of care to its employees and that he was not prepared to continue with being bullied and abused. He told Mr Elliott it was not practicable for him to change runs and he told Mr Elliott he would not be back until the situation was sorted out as he would not be bullied at work. He contended that Mr Elliott was trying to bully him into changing his run. The claimant subsequently went home upset. He told the tribunal he woke up late the following day and did not go to work. He went to his father’s house and explained the situation. His father telephoned Mr McFaul, the assistant manager, to explain that the claimant was sick. Mr Elliott, in his evidence, said that he had decided, having read the note that the claimant left for the respondent’s customer, that the appropriate course was to change the claimant’s run. The decision was Mr Elliott’s. Most of the drivers know two to three different runs; but the claimant only knew one run and he needed to learn another run in any event. Mr Elliott said that the claimant was very agitated. He told the claimant that his run was being changed, a solution which would remove the difficult customer from his route. Mr Elliott perceived there to be a clash of personalities between the claimant and the customer. The claimant said he did not want that solution. Mr Elliott said it was the only solution he could come up with. The claimant then said that he had gathered up approximately £3,000.00 which would do him until Christmas and he did not need this kind of trouble in his life. Mr Elliott understood by this that the claimant was leaving his job. The claimant said he was not having it and he was gone. Mr Elliott said that the claimant never used the phrase that he (the claimant) was leaving until issues were sorted out. Mr Elliott contends that in his view he had sorted the issue out and felt he had solved the problem by suggesting the alternative run. As Mr Elliott was leaving the office he told the claimant to come in the following morning and get the thing sorted out. Mr Elliott offered to accompany the claimant for a week or a fortnight or as long as it took on the new run. The claimant again forcibly said that he would not be back as he did not need this kind of difficulty in his life.

6. Having heard the evidence, the tribunal have concluded, on balance, that it prefers the evidence of Mr Elliott. In reaching this conclusion, the tribunal took into account a number of factors. Firstly, it took into account the inconsistent nature of various parts of the claimant’s evidence. For example, the claimant contended that he had told Mr Elliott at the meeting on 10 November 2010 that he was leaving and would not come back until the issues were sorted out. However, he also told the tribunal that he did not go to work the following day, 11 November 2010, because he got up late and was not feeling particularly well. He also gave evidence that his father had called the employer on Friday 12 November 2010 to tell them that he was sick. It is not easy to reconcile the different explanations for his absences on 11 and 12 November 2010.

7. The claimant called a number of witnesses in support of his case. They were unable, in a large part, to support the assertions the claimant was making. However, one colleague, Mr McConaway, who had been the person who had got the claimant his job with the respondent in the first place, said that he had a conversation with the claimant on the evening of 10 November 2010 after the claimant’s meeting with Mr Elliott. Mr McConaway said that the claimant in that conversation shook his hand and thanked him for getting him the job anyway.

8. In his evidence, despite questioning, the claimant could not provide any explanation for what he meant when he said he would not return until matters were sorted out. He was unable to say what would have satisfied him in terms of sorting matters out but accepted he had been offered an alternative route which took away the difficulty of his poor relationship with an important customer.

9. The tribunal therefore accepts the evidence of Mr Elliott as to the meeting with the claimant on 10 November 2010.

10. The claimant asserted that he had made a number of complaints relating to health & safety and to Working Time Regulations during his employment. Despite being pressed at some length by Mr Mulqueen he was unable to give examples of the complaints he made. The witnesses that he called on his behalf confirmed that in conversation with them he had raised various complaints but no one could refer to any incident or example of a report being made to management or Human Resources by the claimant.

11. On 11 November 2010 the respondent, through their Human Resources Department, wrote to the claimant confirming that it had accepted his resignation. The claimant subsequently had a meeting, on 17 November 2010, with Ms Ursula Maguire of the respondent’s Human Resources Department. After further investigation, Ms Maguire confirmed that the respondent did not intend to rescind his resignation. Ms Maguire also pointed out that the issuing of the note to the customer was a disciplinary matter in any event. She concluded that the actions of Mr Elliott were fair and reasonable.

The law

12. An employee has a right not to be unfairly dismissed. Under the provisions of the Employment Rights (Northern Ireland) Order 1996 (‘the Order’) a statutory protection from unfair dismissal is normally engaged only after an employee has worked for an employer for at least 12 months. However, the need for a period of service does not apply where the employee is dismissed for asserting a statutory right. By Article 132 of the Order an employee who is dismissed shall be regarded for the purposes of the Order as unfairly dismissed if the reason or if more than one the principle reason for the dismissal is that he brought to his employer’s attention by a reasonable means circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health & safety. Under Article 132A of the Order an employee who is dismissed shall be regarded for the purposes of the Order as unfairly dismissed if the reason or if more than one the principle reason for the dismissal is that the employee refused or proposed to refuse to forego a right conferred on him by the Working Time Regulations (Northern Ireland) 1998.

13. Termination of employment by an employee is known as resignation and may be with or without notice. There are no formal requirements for a resignation but it must be communicated to the employer either orally, in writing or by conduct. It is not, therefore, strictly necessary for the employee clearly to state his intention to resign as this may be inferred from his conduct in the surrounding circumstances. It may be sufficient for the employee to walk out and fail to return to work. There is no need for the employer to accept the resignation.

The tribunal’s conclusions

14. In this case the first task of the tribunal is to determine whether the claimant resigned or was dismissed. Based on our findings of fact the tribunal has accepted the evidence of Mr Elliott in relation to the content of the meeting with the claimant on 10 November 2010. The claimant then did not attend work on 11 November 2010 nor did he attend work on 12 November 2010. He gave no further explanation for his absence to the employer until his father made contact with Mr McFaul at approximately 4.30 pm on Friday afternoon. By that stage the respondent had already sent a letter dated 11 November 2010 confirming the claimant’s verbal resignation. The tribunal is therefore satisfied that the claimant was not dismissed and in those circumstances his claim for unfair dismissal must fail.

15. In any event, having heard the evidence the tribunal is not satisfied that the claimant has made out any case that the reason or principle reason for any dismissal was his assertion of statutory rights. The claimant returned to his depot each day at approximately 4.30 pm, an hour before his day’s work completed. There was ample time for taking breaks if he had not done so during the day. The claimant was unable to provide concrete examples of when he had made complaints to his employer regarding health & safety issues or the requirement to take regular breaks. In his evidence he told the tribunal that he had made a health & safety report to Derry City Council. However, when a witness from the Council attended, it transpired that the date of the claimant’s complaint was 25 November 2010, over two weeks after his employment terminated. The Environmental Health Officer also had a contemporaneous note on his file to say that the claimant ‘would be making’ the respondent aware of his complaint. During his evidence the claimant maintained that he had made complaints relating to health & safety and not being allowed appropriate rests and lunch breaks. However, he also specifically said that he considered that the main reason that his employment terminated was that the employer took the customer side against his and that the employer preferred to say that he had resigned rather than sort the situation out. The claimant said he believed the reason he lost his job was his relationship with this particular customer. In his submissions the claimant then said that he believed the reason he had lost his job was because he refused to change his route to the Northern Run. In those circumstances, the tribunal could not have been satisfied if it had held that there was a dismissal, that the reason or principle reason for the dismissal was based either on complaints relating to health & safety issues or breaches of the Working Time Regulations.

Chairman:

Date and place of hearing: 6 and 18 April 2011, Belfast

Date decision recorded in register and issued to parties: