THE INDUSTRIAL TRIBUNALS 

CASE REF:  792/06

CLAIMANT:			Joanne Durnien

RESPONDENT:		T Durnien Limited

DECISION ON A PRE-HEARING REVIEW

The decision of the industrial tribunal is that the claimant is not entitled to present a claim of constructive dismissal as she has not complied with the requirement to send a grievance in writing to her employer.

Constitution of tribunal:
Chairman (Sitting Alone):	Mr D Buchanan

Appearances:
The claimant was represented by Ms S McKeagney, Barrister-at-Law, instructed by Murnaghan and Fee, Solicitors.
The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Morris and Co, Solicitors.

1.	(i)	By a claim presented to the tribunal on 21 June 2006, the claimant brought claims in respect of constructive dismissal, sex discrimination, breach of contract, failure to pay holiday pay (Working Regulations (Northern Ireland) 1998), unlawful deduction from wages, and failure to provide an itemised pay statement against the respondent company.  Her husband, from whom she is currently separated, is a director of the respondent company.  There are presently ongoing divorce proceedings between them.

(ii)	At the outset of the proceedings the claimant withdrew her claim of sex discrimination in open tribunal without objection from the respondent company’s counsel.

2.	(i)	The issue for determination by the tribunal was as follows:-

Whether the claimant was entitled to present a claim of constructive dismissal to the tribunal in view of the provisions of Article 19(2) and (3) of the Employment (Northern Ireland) Order 2003 regarding the requirement to send a grievance in writing to the employer and to wait 28 days before presenting a claim to the tribunal.

	(ii)	A letter of grievance signed by the claimant was before the tribunal.  The respondent company disputed that such a letter had been sent, and contended that, even if it had been, it did not constitute a valid grievance letter so far as the constructive dismissal claim was concerned.  It was accepted that it was capable of constituting a valid grievance as far as the breach of contract, unlawful deduction from wages and holiday pay complaints were concerned.  It also made specific reference to the alleged non-receipt of wages slips, though the grievance procedure does not apply in respect of such a claim.

3.	The tribunal heard evidence from the claimant, and from her husband Brian Durnien, on behalf of the respondent company.  It also had regard to documentary evidence submitted by the parties.

4.	The tribunal finds the following facts proved to its satisfaction.

	(i)	The claimant hand-delivered the grievance letter to her husband’s home address on Good Friday, 14 April 2006.

		This letter did not come to her husband’s attention.

	It is accepted by the respondent that the requirement on the claimant was to “send” the grievance, and that there is no requirement for it to come to the respondent’s attention.  Mr Durnien was away that weekend, and the possibility that the letter was mislaid by his daughter who was in the house cannot be discounted.

	(ii)	Diary entries made by the claimant corroborate her version of events.  Though there are no diary entries for other seemingly important, related events, such as visits to her solicitor, I accept that these diary entries are genuine.  Had these diary entries been fabricated I do not think they would have been so laconic.

	(iii)	I attach no significance to the fact that the letter was undated.  I accept this was an oversight.  The claimant could have left the letter at her husband’s place of work, where someone would have been present, but her reason for not doing so, namely that she wanted to avoid a possible angry confrontation with him, seems to me to be credible. 

		She did not call her son to give evidence.  He allegedly had a conversation with her husband which was consistent with her version of hand-delivering the letter.  Her reason for not asking her son to give evidence was that she wished to avoid involving her children in what has the appearance of an acrimonious domestic matter.  This also seems to me to be credible.

5.	The body of the letter written by the claimant stated:-

		“I am writing to complain about the terms of employment whilst employed with T Durnien Limited.  

		During my 13 years employment by T Durnien Ltd I never [received] my wage slips, nor holiday pay.  I was not allowed to take my holiday entitlement.

		I also wish to complain about the wages I [received] throughout the period of my employment which never increased, for the position I held.

		Please note that I shall also be raising the issue of [harassment] and bullying with the tribunal in due course.”

6.	Article 19(2) of the Employment (Northern Ireland) Order 2003 provides that an employee shall not present a complaint to an industrial tribunal where the complaint is one of constructive dismissal if the employer has not set out his grievance in writing and sent a copy of it to the employer.

The statement of grievance is a statement of the employee’s complaint.  There is no requirement that the employee use technical language.  However, the complaint made to the employer by way of grievance must be essentially the same complaint as is presented to the tribunal.  This will be the case where the employer, on a fair reading of the grievance, and having regard to the particular context in which it is made, can be expected to realise what complaint is being made.

(See:  Shergold –v- Fieldway Medical Centre [2006] IRLR 76; and Canary Wharf Management Limited –v- Edebi [2006] IRLR 416).

7.	Having considered the contents of the grievance letter I am not satisfied that the claimant has discharged the statutory requirement in relation to her claim of constructive dismissal.  There is nothing in her letter which can be viewed as a complaint relating to constructive dismissal, or which mirrors the allegation in relation to her dismissal as set out at paragraph 7.1 of her claim form to the industrial tribunal.  Notwithstanding that her employment had ended, her letter would not have led her employer to believe that she was raising an issue relating to dismissal.

8.	The tribunal is not satisfied that the claimant raised a grievance in relation to constructive dismissal in accordance with Article 19(2) of the 2003 Order.

	Therefore she cannot proceed with that claim.  Her remaining claims will now be listed for hearing.

Chairman:

Date and place of hearing:	26 April 2007 and 13 June 2007, Belfast.

Date decision recorded in register and issued to parties: