THE INDUSTRIAL TRIBUNALS 
CASE REF:	5/05

				

CLAIMANT:		Nigel Ian McGeagh

RESPONDENT:	Heron Joinery		 

DECISION 

The unanimous decision of the tribunal is that the claimant was not dismissed and his complaint of unfair dismissal is dismissed.  

Appearances:
The claimant was represented by Mr M. Cahalan, Barrister-at-Law, instructed by McLernon & McCann, Solicitors.
The respondent was represented by Mr M. Wolfe, Barrister-at-Law,  instructed by Murphys Solicitors.

1.	The claimant’s claim was that he was dismissed or in the alternative was constructively dismissed, and that that dismissal was unfair.  The issues for the tribunal therefore were, was the claimant dismissed on 9 November 2004, was the claimant constructively dismissed on that date or on 15 November 2004 or did the claimant resign on the 15 November 2004.  If the tribunal was satisfied that the claimant was dismissed it then had to consider the issue of whether that dismissal was fair and whether the claimant was liable to have his compensation reduced for contributory fault.

2.	The tribunal heard the evidence of the claimant and the evidence of John Boyle and Grainne O’Kane for the respondent and considered the documents produced.

3.	(i)	The claimant is aged thirty-two years and has worked as a joiner for
approximately sixteen years.  He worked for the respondent company for just over two years and has been self-employed from 24 January 2005.  His earnings whilst working for the respondent company were £285.25 gross per week and his net pay was £225.75 per week.

(ii)	The respondent company is based in Draperstown and its business is making doors and windows.  It employs approximately thirty-five staff.  Quality Control is important for this business and it is up to each employee to exercise quality control by taking action if products are not up to standard. The company has a low turnover of staff.  Joiners are hard to come by so the company is always seeking to employ joiners because the company is so busy.  

(iii)	On 8 November 2004, Mr Boyle the claimant’s manager, spotted a badly finished door on a pallet with other completed doors which were to go out to customers so he took the poorly-finished door off the pallet and left it for the claimant to fix as he had been working on it along with another employee.  

(iv)	The problem with the door was that the security bolts had been put on the outside.  The claimant as an experienced tradesman should have noticed this and he agreed that it was a fundamental error and was bad workmanship that the bolts were on the wrong side of the door.  Although he denied that this was his fault, it was clearly noticeable and it was incumbent on him to take remedial action before putting it on the pallet as a finished door. 

(v)	On 9 November 2004, the claimant was working on this door to fix it.  Mr Boyle was passing by, looked at what the claimant was doing to fix the door and was not happy with the repair work being carried out by the claimant.  The tribunal does not accept the claimant’s contention that Mr Boyle did not look at all at what was being done but simply proceeded to shout aggressively at him for no reason.

(vi)	There was a heated exchange between the two men.  What is in dispute is the words which were used by Mr Boyle. The tribunal was not entirely convinced by the evidence of either the claimant or Mr Boyle about this incident.   There is no dispute that Mr Boyle asked the claimant if he would put that door in his house and Mr Boyle admitted that he used expletives and said that if the claimant was not going to fix the door he should go off home.  The claimant contended at hearing that Mr Boyle simply told him to “fuck off home” for no apparent reason and he understood this to mean that he was dismissed.  Mr Boyle contends that the claimant became aggressive and used expletives too.  The tribunal finds on balance that a heated exchange involving the use of expletives by both parties took place after Mr Boyle took issue with the claimant over his workmanship and that Mr Boyle used words to the effect “if you are not going to fix that stile you can go home”.  Mr Boyle said these words aggressively and with expletives.  The claimant left work in anger after the incident.

(vii)	Both parties confirmed and the tribunal finds, that in this work place swear words and expletives were used on a frequent basis by all members of staff on the shop floor.  The respondent had received no complaints about the use of foul language.  The use of such language was classed as minor misconduct in the company disciplinary procedures.

(viii)	The claimant did not attend work on 10 or 11 November but went in to the workplace on 12 November after receiving a letter from Ms O’Kane asking him to return to work.  On 12 November the claimant had an unscheduled meeting with Ms O’Kane and she made hand-written and typed notes of that meeting which the tribunal finds to be accurate and, further, the tribunal found the evidence of Ms O’Kane to be clear, convincing and reliable.  The notes record that the claimant accepted that he used inappropriate language in the exchange with Mr Boyle on 9 November and the claimant confirmed that he still wanted to work in the respondent and he agreed to return on Monday 15 November to a meeting to resolve outstanding issues.  The claimant confirmed in evidence that at no stage in the meeting did he say that he felt that he had been dismissed. 

(ix)	The meeting took place on 15 November between Ms O’Kane, the claimant and Mr Boyle and again the tribunal finds Ms O’Kane’s typed notes of the meeting to be accurate.  Despite the claimant’s evidence to the contrary, it is clear from the notes that Mr Boyle apologised for his language on two occasions during that meeting.  The claimant at that meeting denied that he had used bad language and said, in contrast to his statements at the meeting with Miss O’Kane on the Friday, 12 November, that he had other things to do other than work for the respondent company and that he no longer wanted to work there.  The claimant then wrote a note of resignation in the following terms:  “I Nigel wish to resign” and signed and dated it.  The tribunal finds that the claimant knew well the difference between resignation and dismissal and signed the resignation note with no pressure exerted on him by others nor did he feel under threat or duress of any kind.

4.	The first question for the tribunal was whether the words used by Mr Boyle on 9 November amounted to words of dismissal.  The law in this area is examined in Harvey on Industrial Relations and Employment Law Division DI paragraph 225-249.  The test to be used following the case of Sovereign House Security Services Limited –v- Savage 1989 IRLR 115 Court of Appeal is an objective one namely how would a reasonable listener have construed the words used in the circumstances of the case.  This test applies whether the words used were ambiguous or not.  The tribunal does not find that the words used by Mr Boyle are direct words of dismissal.  The words are ambiguous in that they can be construed as admonishment or as a threat of suspension if the claimant did not fix the door properly.   Applying the test as expounded in the Sovereign House case, the tribunal finds that no reasonable listener in the circumstances of the claimant’s work-place would have construed the words used as words of dismissal.

5.	The tribunal then has to go on to consider constructive dismissal.  Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right not to be unfairly dismissed.  Article 127(1)(c) provides that an employee is dismissed by his employer were 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.    

6.	The tribunal has considered, the cases of Western Excavating –v- Sharp 1978 IRLR 27; Courtaulds Spinning –v- Sibson 1987 ICR 329; Horkulak –v- Cantor Fitzgerald International 2004 ICR 697;  Waddem Stringer Commercials (London) Limited –v- Brown EAT 322/82; Jones –v- F Sirl & Son (Furnishers) Limited 1997 IRLR 493; Bliss –v- South East Thames Regional Health Authority 1987 ICR 700 and Mahmud 1997 ICR 606.

7.       The essential elements of constructive dismissal are set out in Western
  Excavating (ECC) Limited –v- Sharp 1978 IRLR 27 and they are:-

(a)	There must be a breach of contract going to the root of the contract or which shows the employer no longer intends to be bound by one or more essential terms of the contract.

(b)	It must be sufficient  to justify the employee leaving immediately.

(c)	The employee must leave in response to the breach and without delay.

8.	The term in question here is the implied term of trust and confidence outlined by the House of Lords in the Mahmud case 1997 ICR 606, and the test is whether there was a breach of the implied term of trust and confidence which was calculated or likely to destroy or seriously damage the relationship between the employer and employee.

9.	The claimant’s counsel relied heavily on the Horkulak decision which is a High Court wrongful dismissal case involving a London City broker who was subjected to a six-month campaign of bullying and verbal harassment, intimidation and humiliation in front of others by his manager.  This case does not, however, set down the principle that the use of foul language invariably amounts to fundamental breach of contract but confirms that these cases depend on their own particular facts and circumstances.

10.	Applying the law to the facts as found, the tribunal finds that the claimant was not constructively dismissed on either the 9 or 15 November 2004. The tribunal believes that the manager should not have used expletives and the terminology he did when admonishing the claimant.  The tribunal finds the manager’s words and manner at the incident on the 9 November reprehensible but, nevertheless, finds that these words and actions were not sufficiently serious in the circumstances to constitute a repudiatory breach of contract nor did they justify the claimant leaving and regarding himself as dismissed.  The tribunal finds that the words were said in the heat of the moment in a heated exchange between the two men.  Mr Boyle had a reason for speaking to the claimant about his workmanship and therefore had a reason to admonish him albeit that he did so in coarse language. As the use of swear words was a frequent occurrence in this work place, the tribunal cannot accept the claimant’s contentions at hearing that he was profoundly offended by the words used to the extent that he felt could no longer work for the respondent.  Indeed his willingness to engage with the respondent after the incident on the 9 November and his indications that he still wanted to work there do not support this contention.  The claimant’s actions subsequent to the events on 9 November, are therefore, inconsistent with the claimant feeling so aggrieved.  The tribunal finds no breach of a term of the contract sufficient to justify the claimant regarding himself as dismissed.

11.	In view of the facts found above, the tribunal takes the note of resignation at face value and finds that the claimant resigned on 15 November 2004 because he wanted to start his own business.

12.	As there was no dismissal, the tribunal did not have to consider the issues of fairness or contributory fault.

	

Chairman:

Date and place of hearing:	27 May 2005, Belfast.

Date decision recorded in register and issued to parties: