THE INDUSTRIAL TRIBUNALS

CASE REF:  266/06

CLAIMANT:			Barry Smyth

RESPONDENT:		Ashdon Care Ltd T/A Beverly Lodge Nursing Home

DECISION

The unanimous decision of the tribunal is that the claimant was not dismissed and his claim to the industrial tribunal is dismissed accordingly.

Constitution of Tribunal:
Chairman:			Mr S A Crothers
Members:			Mr Lysk
				Mrs V Walker

Appearances:
The claimant was represented by Mr Sherrard, Barrister-at-Law, instructed by John Ross & Son, Solicitors.
The respondent was represented by Mr P Moore of Peninsula Business Services Ltd.

 1.	The claimant’s claim was that he was forced to resign from his employment as a Senior Care Assistant with the respondent on 30 October 2005, and was therefore unfairly dismissed by the respondent or in the alternative was constructively dismissed.  The respondent denied the claimant’s allegations and claimed that he had resigned of his own volition.

 2.	The issue before the tribunal was as to whether the claimant was dismissed by the respondent and if so, was the dismissal unfair?  Alternatively was the claimant constructively dismissed?

 3.	The title of the respondent was amended to that shown above.

 4.	The tribunal heard evidence from the claimant, Mrs Elaine McGowan a director in the respondent company and manager of the nursing home, Mr Steele also a director in the respondent company and the company secretary, and Mrs Atcheson, solicitor.  The tribunal was also presented with copies of relevant documentation.

 5.	Having carefully analysed the evidence before it, the tribunal came to the following findings of fact:-

	(i)	The tribunal heard conflicting evidence as between the claimant and the respondent’s witnesses.  The tribunal, on the balance of probabilities, preferred the evidence given on behalf of the respondent, and in particular the evidence from Mrs McGowan and Mrs Atcheson.

	(ii)	The claimant had been employed by the respondent as a Senior Care Assistant from 2001.  On 28 October 2005 Mrs McGowan received a telephone call from the Registration and Inspection Unit of the Eastern Health and Social Services Board concerning a serious allegation against the claimant.  Mr Malcolm Allen and Hazel Gibson visited Mrs McGowan in her home in Bangor at around 4.00pm on 28 October and explained to her that a serious allegation had been raised against the claimant whilst working in Ailsa Lodge Nursing Home.  The claimant had been employed there via the First Choice Employment Agency but this employment had ceased prior to 28 October 2005.  The respondent was unaware that the claimant had been employed elsewhere.  Mrs McGowan subsequently contacted the claimant who agreed to come to the Beverly Lodge Nursing Home at around 6.00pm.  Malcolm Allen and Hazel Gibson were already there.  The Registration and Inspection Unit made it clear that owing to the nature of the serious allegation the claimant had to be suspended.  He was suspended on full pay on 28 October 2005.

	(iii)	The tribunal accepts that on 29 October 2005 the claimant contacted Mrs McGowan on her mobile telephone, and not that Mrs McGowan contracted him on 30 October 2005 from her mobile telephone requesting a meeting, as he claimed in evidence.  Mrs McGowan was shopping in Marks and Spencer food hall at the Bloomfield Shopping Centre in Bangor with her friend, Mrs Atcheson.  The phone call from the claimant was made at around 2.00pm to 2.15pm on 29 October 2005.  The claimant who was in an anxious state, indicated that he wished to meet Mrs McGowan at the nursing home.  Mrs Atcheson, who was beside Mrs McGowan in the shopping centre at the time of the telephone call from the claimant, advised her not to meet with the claimant as he was already on suspension.  When Mrs McGowan indicated that she was going to meet him, Mrs Atcheson advised her to be very careful.  The tribunal accepts that a meeting took place at approximately 2.45pm on 29 October 2005 in Beverly Lodge Nursing Home involving the claimant, Mrs McGowan, and staff nurse Colin Maguire.  The claimant had claimed before the tribunal that he had a problem in reading and writing and that the resignation letter shown to the tribunal and dated 29 October 2005 was dictated to the claimant by Mrs McGowan and he wrote it down.  Earlier in his evidence he indicated that Mrs McGowan and Mr Maguire helped him to write the letter in that they wrote out its contents and the claimant copied them.  However, the tribunal accepts the respondent’s evidence that Mrs McGowan was unaware that the claimant had any difficulty with spelling and finds that he was able to cope with making records within the home and writing notes.  It accepted Mrs McGowan’s evidence that the letter of resignation was not dictated to him.

	(iv)	The tribunal does not accept that the claimant was threatened or intimidated by the respondent or forced to resign.  Furthermore it finds that there was no reference to paramilitaries as claimed by the claimant or to legal costs of £10,000 and that a meeting did not take place on 18 November 2005 to discuss the claimant’s reinstatement under supervision, as the claimant claimed in his evidence.

 6.	The tribunal heard submissions from both parties’ representatives.  The law in relation to the issue before the tribunal is governed by Articles 126, 127, 129 and 130 of the Employment Rights (Northern Ireland) Order 1996.

 7.	Having regard to the evidence, the submissions made by both parties representatives, and having applied the principles of law to the findings of fact the tribunal concludes that the claimant voluntarily resigned on 29 October 2005 and was therefore not dismissed by the respondent or constructively dismissed.  His claim to the tribunal is accordingly dismissed.

Chairman:

Date and place of hearing:	29 June 2007 and 16 July 2007, Belfast

Date decision recorded in register and issued to parties: