THE INDUSTRIAL TRIBUNALS 

CASE REF:	2911/04

CLAIMANT:		Leonard Robert Montgomery

RESPONDENTS:	1.	Café Crème Restaurant Ltd
2.	Flannigan Edmonds & Bannon
3.	Tom Davis, Patricia Davis, Andrew Davis &
Jonathan Davis t/a The Skandia	

DECISION 

The unanimous decision of the tribunal is that the claimant was not constructively dismissed by the respondent.
Appearances:
The claimant appeared in person. 
The respondent was represented by Mr Webb, Croner Consulting. 

At the outset of the proceedings the respondent confirmed that the claimant was employed by Skandia Restaurants Limited.  The tribunal amended the title of the second named respondent accordingly and dismissed the first and third named respondents from the  proceedings.

THE COMPLAINT

The claimant complained that he had been constructively dismissed from his employment as a cook by the respondent.  He complained that the respondent’s failure to properly investigate complaints made by him in January 2004 and May 2004 amounted to a significant breach of the employment contract leaving him no option but to resign.

ISSUES

1.	The issue for the tribunal to determine is:-

•	Was the claimant constructively dismissed?

2.	The tribunal found the following facts proved on a balance of probabilities.

2.1	The claimant commenced employment with the respondent towards the end of January or in early February 2003.

2.2	The claimant was employed as a cook at one of the respondent’s restaurants, the Café Crème restaurant, in the Abbey Centre.

2.3	Fiona Lounden was the manageress at the Café Crème restaurant.  The claimant had previously worked for the respondent and was offered this job by Fiona Lounden in or around January/early February 2003.

2.4	From the outset relations between the claimant and Ms Lounden were very strained.  It was common case that they did not get along.  The claimant complained of a bad atmosphere at work which he attributed to Ms Loundon’s manner and behaviour.

2.5	An incident occurred in or around January 2004 when the complainant raised concerns about the condition of the kitchen with Ms Lounden.  Ms Lounden in response shouted at the claimant and used foul and abusive language towards him.  This occurred in front of customers and other staff.  The claimant was very distressed as a result of this.

2.6	Following this incident, the claimant made a complaint to Tom Davis, one of the owners of the restaurant.  Tom Davis visited the restaurant later that day and spoke to Ms Lounden.  He did not speak to the claimant or to anyone else regarding the incident.  When the claimant tried to contact him subsequently by phone, Tom Davis did not return his calls.  The claimant was very unhappy that he was not allowed an opportunity to put forward his point of view.  He was also concerned that no other staff members were interviewed about the incident.

2.7	A short time later the complainant complained about the incident to one of the other owners, Mr Andrew Davis.  Following this complaint a notice was posted in the kitchen from Mr Andrew Davis regarding the unacceptability of foul language.  As far as the claimant was aware nothing else was done in response to his complaint.

2.8	The tribunal found that there was no meaningful investigation of the claimant’s complaint and no evidence was adduced to establish the existence of a proper grievance procedure at that time which would have allowed the claimant to properly pursue his complaint.  The tribunal accepted that there was a company handbook/ grievance procedure but that it was “in bits”.  It was not produced to the tribunal in accordance with the tribunal’s request.

2.9	A second incident occurred in or around May 2004.  An order for food was placed with the claimant by Ms Lounden.  The food requested was not in stock.  When Ms Lounden was made aware of this she blamed the claimant alleging it to be his responsibility to ensure that all necessary food was in stock.  She became abusive towards the claimant again in front of customers and staff.  The claimant found this behaviour very degrading.

2.10	As a result of this incident there were a number of meetings between the claimant and Andrew Davis.  However, the claimant felt that he was not making any progress regarding his complaints.  He felt they were not being taken seriously and that Ms Lounden was allowed to behave badly by management.  The claimant was disadvantaged in his efforts to properly pursue his complaints by the absence of a formal grievance procedure and the respondent’s failure to investigate his complaints in the manner in which a reasonable employer would have been expected to.

2.11	In or around May 2004 Mr Trevor Mizon, a senior head chef who had been moved to Café Crème by the respondent some time earlier, in an effort to improve the manner in which the restaurant was organised generally, held a meeting with the claimant in an effort to encourage team work and to improve staff relations.  Mr Mizon felt and the tribunal accepted that the claimant expressed satisfaction following that meeting.  Mr Mizon certainly believed him to be happy and was shocked subsequently to discover that the claimant had handed in his notice.

2.12	Notwithstanding Mr Mizon’s intervention it was the claimant’s evidence that there was no improvement in the atmosphere at work and no improvement in relations between the claimant and Ms Lounden.  However no specific incidents during this period (after May 2004) were brought to the tribunal’s attention.  The claimant made no further specific complaints.

2.13	The claimant tendered his notice in writing on 30 July 2004 giving two weeks notice.  The claimant worked his notice period.

2.14	In response to a question from the tribunal, the claimant confirmed that his decision to hand in his notice was as a result of the incident in May 2004 involving Fiona Lounden.  The tribunal believes that this decision was also motivated by the incident in January 2004 involving Ms Lounden.

2.15	Following receipt of his resignation letter, Mr Jonathon Davis (another of the owners who assumed responsibility in his brother’s absence on holiday) carried out an investigation.  During the course of this investigation the claimant became aware that Ms Lounden had received a reprimand from management following the incident in or around January 2004.  He had no knowledge of this previously and was aggrieved that he was not told this at the time of his initial complaint.  This was the first proper investigation undertaken by the respondent which the tribunal noted was in marked contrast to the manner in which the claimant’s previous complaints had been dealt with.

2.16	The claimant left the respondent’s employment on 14 August 2004 having worked his full notice period.

THE LAW

3.	Article 127 of the Employment Rights (Northern Ireland) Order 1996 sets out the circumstances in which an employee qualifies as having been dismissed by his employer.  These include circumstances in which the employee terminates the 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.  This has become known as constructive dismissal.

3.1	The leading case law on constructive dismissal is Western Excavating (E.C.C.) Ltd –v- Sharp (C.A.) [1978] IRLR 27.  This case considered that the test to establish whether there had been a constructive dismissal was what was referred to as the contract test.

“If an 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 of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employers conduct.  He is constructively dismissed.  The employee is entitled in those circumstances to leave 

at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice.  But the conduct must in either case be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains:  for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract”. 

CONCLUSIONS

4.	Following the above guidance, the tribunal concludes that the claimant was not constructively dismissed for the following reasons:-

4.1	The tribunal finds that although there was a breach of the employment contract by the employer, it was not a significant breach going to the root of the employment contract.  Furthermore the tribunal was not satisfied that the respondent no longer intended to be bound by the contract.  Following the complaint in January 2004, an attempt was made to investigate albeit that the “investigation” carried out was wholly inadequate.  Furthermore, a notice was posted up in the kitchen following that “investigation” reminding staff of the unacceptability of foul language.  Finally, although the claimant was not aware of it at the time, Ms Lounden was reprimanded.

The tribunal are of the view that it is not the conduct of an employer who does not intend to be bound by the employment contract.

4.2	In relation to the incident in May 2004, there were a number of meetings between the claimant and Mr Andrew Davis.  The tribunal believe that these meetings represented an effort, albeit a wholly inadequate one on the part of the respondent to deal with the claimant’s complaints.  Again this leads the tribunal to conclude that the breach of contract alleged at this time was not a significant breach and the actions of the respondent were not consistent with an employer who no longer intended to be bound by the contract.

4.3	Furthermore and in the alternative, although the claimant felt very aggrieved by the manner in which he was treated by Ms Lounden and the manner in which his complaints were dealt with by the respondent, he nevertheless continued in his employment for a significant period of time after the incidents complained of. 

The tribunal are of the view that in so doing the claimant elected to affirm the contract and so was not constructively dismissed in accordance with Article 127 of the Employment Rights (Northern Ireland) Order 1996.

Chairman:

Date and place of hearing:	10 June 2005, Belfast.

Date decision recorded in register and issued to parties: