Black v Campbell College [2002] NIIT 723_02 (26 November 2002)


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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Black v Campbell College [2002] NIIT 723_02 (26 November 2002)
URL: http://www.bailii.org/nie/cases/NIIT/2002/723_02.html
Cite as: [2002] NIIT 723_02, [2002] NIIT 723_2

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    THE INDUSTRIAL TRIBUNALS

    CASE REF: 723/02

    APPLICANT: Elaine Black

    RESPONDENT: Campbell College

    DECISION

    The unanimous decision of the tribunal is that the applicant was not constructively dismissed. The applicant's complaint is dismissed, without further order.

    Appearances:

    The applicant was represented by Mr B Lundy, Barrister-at-Law, instructed by Fearon & McCoy, Solicitors.

    The respondent was represented by Mr John Monteith, Bursar of the respondent.

    This is a decision in summary form.

    THE ISSUE

  1. The applicant's complaint to the tribunal as set out in her Originating Application was of "constructive dismissal". In its Notice of Appearance, the respondent denied that the applicant had been dismissed and constructive dismissal was denied. Accordingly, the tribunal had to determine whether or not the applicant had been constructively dismissed by the respondent.

    2. THE TRIBUNAL'S FINDINGS

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

  2. The applicant was employed in the capacity of a laboratory technician by the respondent and commenced in that employment on or about 15 May 1998. The employment came to an end on 21 December 2001 when the applicant resigned her post by a letter dated 20 December 2001. Although the applicant gave 7 days notice of termination in her said letter, both parties appear to have agreed that the cessation of employment would be effective as and from 21 December 2001.

  3. The applicant's employment by the respondent was governed by written terms and conditions. Such terms contained a disciplinary code and a grievance procedure. The applicant was fully conversant with the terms and conditions governing her employment by the respondent.

  4. On 5 November 2001 the applicant made an oral request for leave to be taken on 6 and 7 December 2001 in order that she might attend a football match in Scotland. She followed this up by a request in writing dated 7 November 2001. This request was made to Mr Hamilton, her head of department. On 9 November 2001 the applicant registered with Select Employment Agency regarding alternative employment.

  5. Her head of department, Mr Hamilton, initially refused this request for leave and he asked the applicant if she wished the request to be referred to the bursar, Mr Monteith. The applicant requested that this be done. Some three days after the initial request the applicant spoke with Mr Hamilton. Mr Hamilton stated to the applicant that no decision had yet been made in respect of her request. The applicant subsequently made a further request in writing to Mr Hamilton by a letter dated 28 November 2001. For some reason which was not apparent to the tribunal, Mr Hamilton omitted to bring the earlier request to the bursar's attention but he did, for the first time, refer the applicant's subsequent request for leave contained in the said letter dated 28 November 2001 to the bursar at that time.

  6. Having considered the matter with the bursar, by letter dated 29 November 2001 Mr Hamilton replied to the applicant stating that her request for leave was denied. At that stage the applicant approached solicitors and sought legal advice. Upon the applicant's instructions, the solicitors in question wrote a letter to the respondent dated 6 December 2001. The tribunal did not have the benefit of seeing a copy of that letter. However, on 6 and 7 December 2001 the applicant took what amounted to unauthorised leave. As a result of this the applicant was made subject to disciplinary proceedings and she received a final written warning in respect of unauthorised absence on 10 December 2001. On 12 December 2001 the applicant requested an appeal against the disciplinary sanction and the appeal was heard before the respondent's vice-principal on 19 December 2001. The disciplinary decision and the sanction imposed were upheld upon appeal and this was communicated to the applicant by letter dated 20 December 2001.

  7. The applicant, being aware of the outcome of the appeal, lodged a letter of resignation from employment. That letter was dated 20 December 2001, and the employment came to an end on 21 December 2001.

  8. In her case, the applicant argues that she was treated unfairly on account of the fact that a fellow employee had been given authorised leave during term-time and yet her request had been rejected. A fellow employee, a Mr Traill, was indeed given leave during term time. However, that was with the consent of that employee's head of department. It appears that the situation pertaining to Mr Traill is distinguishable from that relating to the applicant.

    9. THE TRIBUNAL'S DECISION

  9. The applicant's complaint to the tribunal was that she 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 to such an extent as to demonstrate 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. That is commonly what is referred to as "constructive dismissal". The law is as set out by the Court of Appeal in England in the case of Western Excavating (ECC) Limited –v- Sharp [1978] IRLR 27 and in many authorities since then. The tribunal considered the facts of the matter as these might bear upon any express or implied terms of the contract of employment, and any evidence of potential breach of such terms on the part of the respondent.

  10. The applicant did not endeavour to make out any case 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 difficulty in identifying any implied term or terms of the 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- The Bank of Credit and Commerce International SA [1977] IRLR 462HL). 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) Limited –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 her resignation from employment. In regard to the former, the tribunal cannot discern any breach of the implied term that an employer ought not to conduct itself in a manner of calculated or likely to destroy trust and confidence.

  11. As the tribunal could not observe any breach of a contract on the part of the respondent, and as resignation on the part of any employee in response to serious breach or repudiation of contract on the part of an employer is fundamental to the concept of constructive dismissal, the tribunal was unable to determine the applicant's complaint in her favour. Accordingly, the applicant's complaint is dismissed, without further order.

    12. ____________________________________

    Date and place of hearing: 26 November 2002, Belfast

    Date decision recorded in register and issued to parties:

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