Moore v Delta Systems Ltd [2008] NIIT 1143_06IT (15 February 2008) 

THE INDUSTRIAL TRIBUNALS

CASE REF:  1143/06

CLAIMANT:			Ciaran Moore

RESPONDENT:		Delta Systems Ltd

Decision
The unanimous decision of the tribunal is that this application is dismissed.

Constitution of Tribunal:
Chairman: Mrs A Wilson
Panel Members:	Mr Grant
                                 Mr Miller
Appearances:
The claimant attended in person representing himself
The respondent was represented by Ms Sandra McDonald

The Issues
The claimant alleges that he was unfairly dismissed contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996.  The respondent denies that the claimant was dismissed and alleges that the claimant resigned and that his resignation did not amount to an unfair dismissal by way of constructive dismissal within the meaning of Article 127 of Employment Rights (Northern Ireland) Order 1996. 

Sources of evidence:

The tribunal considered the originating claim, the response, documents handed in by the respondent, the oral testimony of the claimant and of Mr McClintock and Ms McDonald for the respondent.   

Findings of relevant fact:

1.	The claimant was employed by the respondent as a mouldings operative for in or around 2 years.  His employment came to an end on 17 August 2006.

2.	The respondent is a business manufacturing mouldings with a small workforce and was particularly busy at all times material to this case.

3.	On 17 August 2006 the claimant left work during the morning following altercations with Martin Devine a fitter with the company and with his foreman Mr Ernest McClintock.  During this altercation both Mr Devine and Mr McClintock “roared and shouted” at the claimant regarding the poor standard of his work.  The tribunal find that Mr McClintock did indeed speak harshly to the claimant on this occasion but this was not unusual in the context of the small business and relations were normally good between all the parties.  

4.	Mr McClintock expected the claimant to return to work later that day and rang the claimant on a number of occasions having allowed a little time to elapse in the hope that the claimant would have calmed down.  The claimant did not answer the calls.

5.	The claimant had previously received verbal warnings relating to the standard of his work.  Nonetheless the respondents were anxious to retain him.  He was considered a vital part of the business and the business was very busy at that time.

6.	It is the claimant’s case that following his leaving work on the morning of 17 August he was informed by Ms Sandra McDonald (Personal Assistant to Mr John Devine, a Director of the respondent company) by telephone that Mr John Devine did not want him back at work and that he was sacked.  It is the respondent’s case that this did not happen, that there was a telephone conversation between the claimant and Ms McDonald on the 18 August but there was no mention of the claimant being sacked.  Rather Ms McDonald sought to arrange a performance review  meeting with the claimant and followed this up with a letter of the same date inviting the claimant to a meeting with Mr Devine on the following Monday 21 August.

7.	The tribunal prefer the evidence of Ms McDonald having found the claimant to be inconsistent and contradictory in his evidence and having found his powers of recall on important points to be poor.  In addition the letter referred to was produced to the tribunal.

8.	The claimant contacted Ms McDonald on Sunday 20 August by text message and informed her that he was unwilling to attend the meeting the following day.

9.	Ms McDonald subsequently wrote to the claimant on the 21 August seeking to rearrange the meeting and included the following statement.  “If you do not wish to go ahead with this meeting and I do not receive any further correspondence to the contrary by Friday 25 August 2006, then I will assume you want to terminate your contract of employment with Delta Systems”.

10.	 No reply was received to this letter and Ms McDonald wrote again on the 28 August 2006 in the following terms.  “Due to the fact that you have not made contact with me to organise this [the review meeting] and I had asked you to do so by Friday 25 August 2006, I now take it that you have terminated your contract with Delta Systems”.

11.	 It is claimant’s case that he did not attend the meeting arranged for the 21 August or the subsequent meetings following professional advice received to the effect that   he should not attend as to do so would allow the respondent to apply proper procedures to effect his dismissal.  The tribunal accept that the claimant took professional advice but find it unlikely that this advice was taken prior to the 21 August.  The tribunal find the claimant to be vague and inconsistent in his evidence on this point.

12.	 The claimant did not return to work, he dropped off his keys to the workshop and to date has not collected his p45.

The Law

Article 127 of the Employment Rights (Northern Ireland) Order 1996 sets out the circumstances in which an employee is regarded to have been dismissed by his employer including the following provision at Article 127 (1) (c):-
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 employers conduct.
Dismissal in these circumstances has become known as constructive dismissal and it is established law that the employers conduct for the purposes of Article 127 (1) (c) may comprise a single incident going to the root of the contract or it may comprise a series of incidents culminating in one single incident which provides the final straw for the employee resulting in his resignation.  It is the claimant’s case that this resignation was prompted by the incident on the morning of 17 August 2006.

The tribunal considered the leading case on constructive dismissal Western Excavating (EEC) Ltd v Sharp [1978] IRLR 27 and the commentary in Harvey on Industrial Relations and Employment Law.  It is established that in order for an employee to be able to claim constructive dismissal four conditions must be met:

1.	There must be a breach of contract by the employer.

2.	That breach must be sufficiently important to justify the employee resigning or else 	it must be the last in a series of incidents which justify his leaving.

3.	He must leave in response to the breach and not for some other unconnected reason. 

4.	He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

Decision

The tribunal having considered all the evidence find that there was no breach of contract by the respondent in this case.  The tribunal accept that there was an altercation on the morning of 17 August and find on the balance of probabilities that voices were raised and that Mr McClintock in particular spoke harshly to the claimant.  However the tribunal take into account that this was not unusual in the context of this small business, that relationships were normally good between all parties and that Mr McClintock rang the claimant on a number of occasions later that day in circumstances where the claimant refused to take calls.  The tribunal also had regard to the efforts made by Ms McDonald to set up meetings to review the claimant’s performance and to the fact that all such efforts were resisted by the claimant.  The tribunal do not accept that Ms McDonald told the claimant that he was sacked.  Ms McDonald denies this to be the case and the tribunal have found her to be honest and straightforward in her evidence.  The application is hereby dismissed. 

Chairman:

Date and place of hearing:	24 January 2008, Strabane

Date decision recorded in register and issued to parties: