THE INDUSTRIAL TRIBUNALS 

CASE REF:	2525/04

					

APPLICANT:	Derick Charles Gilbert		

RESPONDENT:	William S Dennison

DECISION 

The unanimous decision of the tribunal is that the applicant’s complaint of constructive dismissal is dismissed, without further order.  

Appearances:
The applicant appeared and represented himself. 
The respondent appeared and represented himself. 

This is a reserved decision in summary form.

THE ISSUE

1.	The applicant’s complaint as expressed in his Originating Application was that, ‘I was forced to resign because of the management’s failure to stop harassment in the workplace’.  The tribunal took this to constitute a complaint of unfair constructive dismissal.  In his Notice of Appearance, the respondent denied that the applicant had been dismissed, whether unfairly and constructively or at all.  Accordingly the tribunal had to determine the applicant’s complaint.

THE TRIBUNAL’S FINDINGS

In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-

2.	The applicant commenced employment with the respondent in or about October 2000.  The respondent was the proprietor of a transport company.  The applicant was employed as a lorry driver.  The employment appears to have been fairly uneventful and the respondent described the applicant as being at all times an entirely satisfactory employee.  However, there was one occasion when the respondent’s son, who was apparently at the time aged about 17 and was employed on a casual basis by the respondent, behaved in a way towards the applicant so as to cause the applicant to regard the son’s attitude as being ‘cheeky’.  As a consequence, the applicant complained to the respondent about this.  The respondent spoke to his son and formed the view that the applicant had misunderstood his son’s attitude and the respondent took no further action in regard to the matter.  This occurred approximately 12 months or so before the events which primarily concerned this tribunal.

3.	On Friday 3 September 2004, the applicant was unloading a lorry when a fellow employee, Robert Moore, spoke to him in a manner in which the applicant regarded as being threatening.  The applicant also regarded a fellow employee, Mr Brian Riddell, as joining in this conduct.  It was not clear to the tribunal whether the foregoing exchange or one that occurred soon thereafter was witnessed by another employee, Mr Matthew Reid.  In any event, the applicant appears to have felt threatened by Mr Moore’s remarks. That afternoon he collected his wages personally from the respondent but took a decision not to mention the matter to the respondent.  His stated reason for taking this view was in regard to the earlier occasion when he had complained about the respondent’s son to the respondent and felt that the respondent had not taken the matter seriously.

4.	Over the week-end the applicant formed a decision that he was going to resign from the employment.  On the following Monday, 6 September 2004, the applicant did not get an opportunity to speak with the respondent about the matter, apparently as the respondent was away from the workplace for most of the day.  The applicant that day subjectively observed the demeanour of both Mr Moore and Mr Riddell as being cheeky to him and as pestering him about his having been angry all that day. 

5.	As the applicant was leaving work that day, 6 September 2004, he telephoned the respondent on his mobile telephone and told him that he would be leaving the employment with effect from the following Friday, 10 September 2004.  The respondent was surprised to receive this information. He was given the explanation by the applicant that the reason for the applicant’s resignation was that he had been threatened by Mr Moore. 

6.	The respondent was not back in the workplace until the Wednesday (8 September 2004).  At apparently the first opportunity available he arranged to speak with Mr Moore, Mr Riddell, Mr Reid, and with the warehouse manager, Mr Liam Taggart.  The apparently consistent explanation that he received was that the applicant had misconstrued any comments made which were described to him as nothing more than normal workplace banter. The respondent formed the view that the applicant had misconstrued any remarks made. The respondent tasked Mr Taggart to speak with the applicant to “pour oil on troubled waters” and to dissuade the applicant from continuing with his resignation, which Mr Taggart did on Thursday 9 September 2004. Mr Taggart accordingly has a discussion with the applicant but, notwithstanding this, the applicant continued with his resolve to resign his employment with affect from 10 September 2004.  The resignation duly took effect on that date. 

THE TRIBUNAL’S DECISION

7.	The applicant’s complaint was that he had been constructively dismissed.  In terms of the general law of constructive dismissal, once an express or an implied term contained in a contract of employment has been breached by an employer such an extent as to demonstrate that there is evidence that the employer has committed a fundamental breach of contract, or shows an intention no longer to be bound by the contract, the employee is entitled as a matter of law to treat the contract as being at an end.  The law is well settled and is as set out by the Court of Appeal in England in the case of Western Excavating (ECC) Ltd –v- Sharp [1978] IRLR 27.

8.	The applicant did not endeavour to make out any case before the tribunal that an express term of the contract of employment had been breached.  The tribunal therefore considered implied terms.  It must be said that the tribunal had some difficulty, in the case of this unrepresented applicant, in eliciting the essential facts from the applicant and, specifically, in identifying any implied term or terms of a contract which might have been potentially breached, given the facts.  One possibility might have been breach of the implied term of trust and confidence that ought to exist in every contract of employment (see Mahmud –v- Bank of Credit and Commerce International SA [1997] IRLR 462 HL).  Another possibility might have been breach of the implied term that an employer should promptly and properly address any grievance raised by an employee (see W A Goold (Pearmak) Ltd –v- McConnell [1995] IRLR 516).  In regard to the latter, the tribunal cannot see from the facts that any express or implied grievance was raised by the applicant prior to his announced intention to resign from employment.  The resignation was announced to the applicant’s employer in the mobile telephone call on 6 September 2004 at the same time as the employer was first given any information concerning the allegation made by the applicant against Mr Moore. 

9.	In regard to the former, the tribunal considered whether or not the ‘trust and confidence’ implied term might have been breached by the employer in the manner in which the respondent conducted proceedings from the time the respondent was first informed of the allegation by the applicant against Mr Moore. Whilst the tribunal did harbour some concern that the respondent might have conducted himself in a different fashion, for instance, by attaching considerably more formality to his investigation of the allegations on the applicant’s part, nonetheless it must be borne in mind that this was a small workforce and the respondent did take steps at a relatively early stage to interview those persons from whom he thought he might be able to elicit relevant information in regard to the allegations.

10.	For an applicant to succeed in a claim such as this, one of constructive dismissal, the breach on the part of the employer, whether that breach arises on account of one or of a series of actions or omissions, must be of such a serious nature as to amount to repudiation of the contract; such as would thereby entitle the employee to accept such repudiation and to resign as a consequence.  In this case, the applicant’s decision to resign had been taken prior to any observable and significant breach occurring, as far as the tribunal sees it. Nothing occurred thereafter, in the tribunal’s view, to give rise to such a significant or fundamental breach of contract as would be required properly to entitle the applicant to resign as a consequence and thus to succeed in a claim for constructive dismissal.  

11.	That being the case, the tribunal is unable to determine the applicant’s complaint in his favour.  Accordingly the applicant’s complaint is dismissed, without further order.  

 	

Chairman:

Date and place of hearing:	7 January 2005, Belfast.

Date decision recorded in register and issued to parties: