THE INDUSTRIAL TRIBUNALS
CASE REF: 500/08
CLAIMANT: Stephen Ogle
RESPONDENT: Chemical Treatment Services Limited
DECISION
The unanimous decision of the tribunal is that the claimant was not constructively dismissed and the remainder of the claimant's claims are not made out and are dismissed by the tribunal without further order.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Members: Ms F Graham
Mr R Hanna
Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr D Burridge of Peninsula Business Services Limited.
REASONS
- In his claim to this tribunal the claimant claimed constructive dismissal, breach of contract and unlawful deduction of wages. The respondent, in its response, denied that the claimant had been dismissed, whether constructively or otherwise, and that there had been any breach of contract or unlawful deduction of wages. Accordingly, the tribunal had to determine these issues.
- At the outset of the matter the respondent's representative had raised an additional issue regarding the tribunal's jurisdiction. However the representative in the course of the hearing formally withdrew any issue regarding jurisdiction and thus the tribunal was not required to determine any jurisdictional issue in these proceedings.
- The tribunal heard oral evidence from the claimant and from Mr Robin Fergusson of the respondent company. In addition, the tribunal was presented by the parties with three bundles of documents which were arranged to be cross-paginated for ease of reference.
FINDINGS OF FACT
- In consequence of the oral and documentary evidence adduced before the tribunal, on the balance of probabilities the tribunal made the following findings of fact material to the issues:-
(a) The respondent is a limited liability company incorporated in 1984. It is engaged in the provision of technical services relating to water treatment on behalf of a number of customers involving contracts both in the public and the private sector. The respondent company is one of a number of companies in a group which the tribunal understands to be in common ownership.
(b) The claimant commenced employment with the respondent on 17 May 2005 as a Technical Service Engineer. He has a background in electronic and electrical engineering.
(c) The initial terms of employment were confirmed by the respondent to the claimant by means of a letter dated 13 May 2005. Material to that, point 7 of these terms referred to working hours. These hours were stated to be 9.00 am to 5.00 pm Monday – Thursday and 9.00 am to 4.00 pm Friday, with one hour for lunch. It was confirmed that the employee was expected to work overtime if required. All overtime would be paid at a given hourly rate. It was also stated expressly that overtime was not compulsory and was not a frequent occurrence. Further to that, there was no express term in these initial terms governing any contractual sick pay. This initial period of employment was described as being "probationary" and the contract was to be confirmed as permanent after satisfactory completion of six months employment.
(d) After the claimant had worked four months in this employment, another employee, a Service Engineer, left the respondent company. It seems that, as a consequence of this, the claimant's probationary period came to an end a little earlier that planned and his employment was confirmed. He was provided with a full written statement of main terms and conditions of employment. Materially, these terms provided for an increase in remuneration by a figure of £2,000 annually and it was confirmed that the normal hours of work were 39 per week, 9.00 am to 5.00 pm, Monday to Friday, with a 60-minute break each day. Regarding the issue of overtime, these contract terms also provided as follows:- "you may be required to work overtime when authorised and as necessitated by the needs of the business". There was no further qualification or explanation added to that. Regarding sickness provision these terms and conditions of employment, which were signed by the claimant on 12 October 2005, state that, "there is no contractual sickness/injury payment scheme in addition to SSP. Any additional payments which may be made will be at our absolute discretion".
(e) Notwithstanding the foregoing express terms, it appears that all employees normally worked a 35-hour working week, excluding breaks. In the case of the claimant he seems to have actually worked a 34-hour week as he appears to have finished at 4.00 pm on Fridays. Whether that was officially sanctioned or not was not entirely clear from the evidence. Certainly, in his evidence to the tribunal, Mr Robin Fergusson, the respondent's General Manager, stated his understanding to be the claimant was supposed to work until 5.00 pm on Fridays, but the reality of the situation does not seem to bear out that understanding.
(f) In June 2007, following a business trip to Gibraltar from 4 to 9 June attended by both the claimant and by Mr Fergusson, Mr Fergusson became concerned and he arranged an informal discussion with the claimant. That took place on 29 June 2007. In his evidence to the tribunal the claimant suggested that it was as a result of certain discussions which took place between himself and Mr Fergusson in Gibraltar that Mr Fergusson's attitude towards him changed upon their return from Gibraltar. Mr Fergusson told the tribunal that it was after the trip to Gibraltar that he wished to address certain concerns regarding the claimant's work. He proceeded to do that on 29 June. These discussions apparently followed on from an interchange that had occurred between the claimant and Mr Fergusson on the preceding day. It appears that it concerned a request on Mr Fergusson's part that the claimant should work on Sunday, 1 July. The claimant stated that he had a family engagement on that day and he was it seems reluctant to work on that Sunday.
(g) The discussions which took place between Mr Fergusson and the claimant on 29 June centred around two issues. These issues were the claimant's apparent unwillingness, as far as Mr Fergusson was concerned, to work overtime which was required and also the issue of his work output.
(h) A series of further events then transpired in the latter part of June 2007 and into the months of July and August. These were in the following sequence:-
(i) The discussions of 29 June took place between Mr Fergusson and the claimant.
(ii) The claimant did not attend, as had been requested, the work on Sunday 1 July, but rather he provided some assistance by telephone to the respondent's operatives who did attend to that work.
(iii) On Saturday 7 July the claimant was requested to attend to a job, again on overtime. For personal reasons he declined. However, he did attend the following day, Sunday 8 July.
(iv) On Friday 20 July the claimant was due to go on vacation for two weeks at the end of that working day. He was requested to carry out some work which took him until 4.45 pm. He appears to have been somewhat aggrieved as he felt his normal finishing time was 4.00 pm on a Friday. The claimant then went on vacation and returned on 6 August.
(v) On 13 August, Mr Fergusson spoke with the claimant regarding a job carried out by him on 10 August at the Ulster Hospital. That concerned an issue relating to what Mr Fergusson saw as the claimant taking too long to carry out the job in question.
(vi) On 28 August the claimant was off work sick, apparently with back pain. He had the respondent's work laptop computer at home with him that day. On that date he dispatched an e-mail to a recruitment agency attaching thereto his CV. Around that time he had also contacted a number of different employment agencies. However, the particular e-mail attaching his CV sent on 28 August appears to have been the first of these contacts with employment agencies. The claimant explained to the tribunal that his motivation in sending off his CV to an employment agency was that Mr Fergusson had it seems made certain arrangements with a customer of the respondent without reference to the claimant. The claimant seemingly felt that he should have been contacted first by Mr Fergusson about the matter.
(vii) On 3 September, Mr Fergusson met with the claimant in his office and referred to a number of concerns. These were general concerns and included the issue of the claimant's work output, especially with reference to Friday working and the issue of overtime working.
(viii) After that meeting, Mr Fergusson wrote to the claimant on 10 September referring to the meeting and listing a number of items which Mr Fergusson felt needed to be addressed.
(ix) On 25 October 2007, having received an offer of alternative employment, the claimant wrote to the respondent giving four weeks' notice of his resignation from this employment. No explanation for the resignation was given in that letter.
(x) The claimant went on sick leave from 30 October 2007 until the employment came to an end on 23 November 2007.
(i) The claimant's employment with the respondent came to an end on 23 November 2007 on foot of his resignation notice. The respondent wrote to the claimant by letter dated 26 November 2007 and set out in some detail the computation of final wages in respect of this employment. The respondent contended that the claimant actually owed the respondent the sum of £12.00 in respect of a nett overpayment of wages. The claimant contended that he was owed wages which had been unpaid. In that letter the respondent set out the explanation that there had been an overpayment of wages for October 2007 in respect of the claimant's absence from work on sick leave (the claimant being absent from work on sick leave from 30 October until the employment terminated on 23 November). The correspondence also refers to annual leave having been taken by the claimant in excess of entitlement and states that statutory sick pay and wages in respect of any overtime worked had been paid.
(j) The claimant's claim in these proceedings also included a sum he stated to be owing to him by the respondent in respect of a motor vehicle tow bar. This was indeed not disputed by the respondent in the proceedings. The respondent's position was that a cheque for this had already been tendered to the claimant but it had been rejected by him. Nonetheless this cheque was available to the claimant by the respondent if he wished to avail of that offer. The tribunal felt that it did not need to concern itself with that aspect of the claim.
THE APPLICABLE LAW
- In terms of the general law of constructive dismissal, once an express or an implied term of a contract of employment has been breached by an employer to such an extent that the employer has committed a fundamental breach of contract, or there is evidence that 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. This is what is commonly 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, including the Northern Ireland Court of Appeal in Brown v Merchant Ferries Ltd [1998] IRLR 682. Thus, it is well established that unreasonable conduct alone is not enough to amount to a constructive dismissal – it must be unreasonable conduct amounting to a breach of contract.
- Any tribunal is therefore required to consider the facts of the matter as these might shed light upon any relevant express or any implied terms of the contract of employment, and any potential breach of any such terms.
- We then turn to consideration of potential breach of an implied term commonly argued as breached in constructive dismissal cases. That is the implied term of "trust and confidence" that ought to exist in every contract of employment. The leading case in that regard is Malik v Bank of Credit and Commerce International SA [1997] IRLR 462, HL. In that case the House of Lords (per Lord Steyn) affirmed the existence of such a term to be implied into any contract of employment –
"…an obligation that the employer shall not … without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee"
THE TRIBUNAL'S DETERMINATION
- Dealing firstly with the claimant's claim for breach of contract and for unpaid wages, here the tribunal can sum up the matter very briefly. On the strength of the evidence before it, the tribunal can see no contractual provision providing for anything other than statutory sick pay for absence from employment. This is true both as regards the express conditions of the contract and also the absence of any term that might be deemed implied. There was certainly a discretion available to the employer to pay contractual sick pay. Mr Fergusson confirmed to the tribunal that he did exercise this discretion in respect of some short-term sickness absence, but not long-term. The respondent thus refused to pay the claimant full pay for the period of absence on the claimant's part from 30 October 2007 until the employment came to an end. The tribunal notes that the claimant did very fairly concede in the course of the hearing that it was at the employer's discretion whether or not to pay full wages as sick pay. The terms and conditions of employment signed by the claimant on 12 October 2005 state that, "there is no contractual sickness/injury payment scheme in addition to SSP. Any additional payments which may be made will be at our absolute discretion". The tribunal was not satisfied that there was any custom and practice additional to that, which was breached. Therefore the discretion appears to have been properly exercised by the employer in this instance and the tribunal is entirely satisfied that the respondent was entitled to exercise discretion in that regard. All that the claimant was entitled to for that period was statutory sick pay. That was paid to him. Likewise, the tribunal is satisfied that any overtime worked by the claimant was fully paid and the respondent has fully accounted for that. Accordingly, the claimant's claim for unpaid wages is not sustained and is dismissed by the tribunal.
- The claimant's other complaint was in respect of unlawful constructive dismissal. In that regard, as the Court of Appeal has made clear in the case of Western Excavating [ECC] Limited –v- Sharp and the Northern Ireland Court of Appeal in Brown v Merchant Ferries Ltd, it is not enough for the employee to leave merely because an employer has acted unreasonably; the employer's conduct must amount to breach of the contract of employment. Thus there must be breach on the part of the employer of either an express or an implied term of the contract. The critical question is whether or not the repudiatory breach on the employer's part played a part in a dismissal. There must be a causal connection between the repudiation and the resignation; if they are unconnected acts then the employee is not accepting the repudiatory breach. The repudiatory breach does not have to be the sole cause of the resignation but it must be an effective cause (see Jones v Sirl and Sons [1997] IRLR 493 and Nottinghamshire County Council v Meikle [2004] IRLR 703).
- Dealing firstly with potential breach of an express term, whilst the claimant had argued that he was not paid wages or other monies to which he was entitled, the tribunal has dealt with and has dismissed that contention, as mentioned above. The contract also provides, in respect of the issue of overtime, as follows:- "You may be required to work overtime when authorised and is necessitated by the needs of the business." To the tribunal, that provision appears to provide a broad discretion to the employer to require overtime to be worked. Whilst the situation appears to have been that the claimant had a certain amount of difficulty with overtime working and had indeed raised this issue from time to time, the tribunal takes the view that the claimant was nonetheless still bound by the terms of the contract which had, on the evidence, been freely and willingly signed by him on 12 October 2005.
- In summary, the tribunal therefore does not see any breach of any express term of the contract on that account on the employer's part. Was there then any breach of an implied contractual term on the part of the respondent? In the case of Malik v Bank of Credit and Commerce International SA the House of Lords affirmed the existence of a term to be implied into any contract of employment that an employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. The tribunal's focus was on whether or not there was any breach of the implied 'trust and confidence' term on the part of the employer in the period up to the time when the evidence suggests that the claimant had formulated his determination to leave the employment. There is clear evidence that a decision on the claimant's part to leave was made, if not before, then by 28 August 2007. In what way therefore might the respondent have breached the 'trust and confidence' term before or at that date?
- Whilst the claimant's case to the tribunal was that he worked very little overtime and indeed took off time in lieu instead, from an inspection of the wages records relating to the claimant's employment, that fact does not appear to be reflected in the wages records seen and inspected by the tribunal. The claimant therefore appears to have accepted in practice the employer's system of working overtime. However, he did have some difficulty on occasions with the implementation of the overtime system.
- Looking at the approach taken by Mr Fergusson to the claimant, it appears that Mr Fergusson had raised a number of work concerns with the claimant at the meeting which took place on 29 June 2007. On the face of it, any employer is entitled to raise work concerns with an employee in the proper exercise of normal management prerogative. Did the exercise of raising those concerns amount in any manner to repudiatory breach on the employer's part? That meeting of 29 June appears to have been somewhat acrimonious as far as the claimant was concerned. However, examining the facts, the tribunal feels that part of the difficulty here might have been that the claimant found it rather difficult to accept criticism of his work on the part of Mr Fergusson. Taking careful note of the evidence, there was certainly nothing which transpired in the course of the meeting held on 29 June or indeed in the weeks thereafter which, as far as this tribunal is concerned, might when viewed objectively provide sufficient evidence upon which the tribunal could in any manner conclude that the respondent had conducted itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust in this case. If the claimant had regarded Mr Fergusson's conduct of matters on 29 June 2007 as constituting a repudiatory breach, he did not take any steps in response to that breach to demonstrate that he regarded himself as discharged from the contract at that time.
- Further concerns were of course raised by Mr Fergusson at the meeting which took place on 3 September 2007, but that meeting took place after the time that the claimant it seems had already made a determination to leave the employment. In any event, the various requests on the part of the respondent for the claimant to carry out overtime work and the claimant's apparent difficulties with regard to that do not in any way constitute what might be deemed a serious or significant breach of contract on the employer's part, effectively amounting to repudiation. Similar comments might also properly be made concerning the claimant's grievance issues, these being only expressly raised by him after the decision to resign had been taken by the claimant.
- The tribunal notes that the claimant tendered his resignation to Mr Fergusson on 25 October 2007. When Mr Fergusson requested the claimant to explain why he wanted to leave he stated that he, "just wanted a change". Notably, the claimant did not communicate to Mr Fergusson at that stage any work difficulties nor indeed any perception that there had been any breach of contract on the part of the respondent that had in any manner prompted the decision on his part to resign from this employment. The letter of resignation itself gave no reasons, and that fact of itself is rather unusual in cases of constructive dismissal.
- The tribunal notes that by letter of 5 November 2007, Mr Fergusson wrote to the claimant (who at that stage was off sick), endeavouring to arrange a meeting to discuss the reasons for his absence and referring to the resignation and stating that if the claimant wished to re-consider his decision and would like to discuss this further, he should contact Mr Fergusson. After this further events transpired which are not material to the tribunal's decision. As mentioned above, the critical question is whether or not there was repudiatory breach on the employer's part and whether any such played a part in the termination of employment in this case. There must be a causal connection between the repudiation and the resignation; the employee must act in response to the repudiatory breach and the repudiatory breach must be an effective cause. It should suffice to say in this matter that, looking at all of the evidence and examining the conclusions of fact to be drawn from this, the tribunal cannot perceive any fundamental breach or repudiation of contract on the part of the respondent. The resignation on the claimant's part was not connected with a response to any repudiatory breach on the part of the respondent. Thus there are no grounds to uphold the claimant's claim of constructive dismissal.
- The foregoing being the case, the claimant's claims are not made out and these are dismissed by the tribunal, without further order.
Chairman:
Date and place of hearing: 7 & 8 August 2008, Belfast
Date decision recorded in register and issued to parties:
