THE INDUSTRIAL TRIBUNALS

CASE REF:	256/08IT

CLAIMANT:			Nathaniel Corbett

RESPONDENT:		Edward Rooney trading as Orchard Upholstery

DECISION
The unanimous decision of the tribunal is that the claimant was not constructively dismissed.

Constitution of Tribunal:
Chairman:		Miss W A Crooke
Members:		Mrs Sylvia Doran
			Mr Brendan Heaney

Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Miss McCorry who although she was a solicitor was appearing as a “friend” to the respondent.

Sources of Evidence

1.	The claimant gave evidence on his own behalf and his father Mr Nathaniel Corbett senior also gave evidence for the claimant.

2.	Evidence for the respondent was given by Miss Dolores Rooney, Mr Eamon Rooney, Mr Malachy Corbett, Mr Paul McAllister, and Mr Edward Rooney.

The Claim and the Defence

3.	The claimant claimed that he had been constructively dismissed by the respondent as a result of being constantly harassed on a daily and ongoing basis by a work colleague.  He also claimed that his complaints to his employer were not dealt with and thus his employer failed in his duty of care to the claimant.  The respondent denied that the claimant had been constructively dismissed.

Statement of Relevant Law

4.	The relevant law is found in Article 127 of the Employment Rights (NI) Order 1996 which states as follows:-

(1)	For the purposes of this Part an employee is dismissed by his employer if, and subject to paragraph (2) and Article 128, only if;

(a)	The contract under which he is employed is terminated by the employer (whether with or without notice);

(b)	He is employed under a contract for a fixed term and that term expires without being reviewed under the same contract; or

(c)	The employee terminates the contract under which he is employed (with or without notice) in the circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

5.	It is settled case law that when seeking to establish a claim for constructive dismissal an employee must establish the following:-

(i)	that there was a breach of his contract of employment;

(ii)	this breach was fundamental ie it went to the root of his contract;

(iii)	additionally the employee must establish that he left in response to the breach; and

(iv)	that he did not unduly delay in so doing.

The Facts Found

6.	(1)	The claimant was employed by the respondent as an apprentice upholsterer.

(2)	The claimant left work with the respondent without saying anything to any of his work colleagues or to Mr Edward Rooney on 27 August 2007 and he never in fact returned to employment.  His expressed reason for leaving was that Mr Malachy Corbett (his uncle) had given him a winged chair to work on and this constituted harassment.

(3)	By letter dated 30 October 2007 the claimant raised a four part grievance with the respondent.  The claimant contended that the component parts of this grievance constituted a course of conduct against him in the work place by Malachy Corbett, his uncle, and that the respondent Mr Edward Rooney did not previously deal with his prior complaints about these matters.  The claimant also raised as a breach the contention that his grievance was not adequately investigated.

(4)	This grievance was investigated by Miss Dolores Rooney, the respondent’s daughter.  She met with the claimant on 9 November 2007 and after meeting with him listed his complaints as follows:-

(i)	That the claimant was ignored by Malachy Corbett (his uncle) for nine months.  Whenever he was asked what work needed to be done he would say “I don’t care, see Eddie”.

(ii)	That Malachy Corbett spilled water over the claimant’s tools deliberately.

(iii)	Approximately two months before he left on sick leave in August 2007, Malachy Corbett lifted covers that the claimant was working on and threw them across shelves.

(iv)	Over the last few months before sick leave, Malachy Corbett brought in religious cards and prayers to the claimant and told him to repent or go to hell.

(v)	Malachy Corbett stated about the claimant “look at him he is off his head on drugs”.

(vi)	The claimant allegedly complained a number of times to Mr Edward Rooney who made no attempt to make matters better for the claimant.

(vii)	After speaking with the claimant, Miss Rooney attended at the work shop of the respondent and took statements from the workforce and from her father.  These statements did not back up the claimant’s version of events and she dismissed the grievance by letter dated 26 November 2007.

(viii)	By letter dated 29 November 2007 the claimant exercised a right of appeal against the decision to Mr Eamon Rooney (the son of Mr Edward Rooney).  The main basis of his appeal was that there were witnesses from whom information had not been sought in connection with his complaints.

(ix)	By letter dated 6 December 2007, Mr Eamon Rooney acknowledged receipt of the appeal letter and fixed date for meeting with the claimant.  He met with the claimant on 10 December 2007 and thereafter conducted investigations with the workforce.

(x)	By letter dated 2 January 2008, Mr Eamon Rooney did not uphold the appeal of the claimant but advised him that Mr Edward Rooney was happy to discuss the matter further with him and Mr Malachy Corbett in an attempt to facilitate a return to work for the claimant.

(xi)	By an undated letter, the claimant resigned stating that he wanted his termination of employment to cease from and including 4 February 2008.

Analysis of Evidence

7.	In the view of the tribunal, there was not a great deal to choose between the evidence given on behalf of the respondent and that given by and on behalf of the claimant.  However on balance, the tribunal preferred the evidence given on behalf of the respondent as there was a certain element of cohesion between the accounts given by the various witnesses for the respondent.  The tribunal found the claimant to be a vague and unsatisfactory witness who had a singular inability to remember dates and times of alleged incidents.

Conclusions

8.	The tribunal did not find any objective evidence to support the claimant’s allegation that he was constantly harassed on a daily basis.  Contrary to the allegation that Mr Malachy Corbett had not spoken to the claimant for nine months, the weight of the evidence suggested that the claimant had in fact not spoken to Mr Malachy Corbett from time to time.  It was not denied on behalf of the respondent that Mr Malachy Corbett had given out religious medals and prayers to various members of the workforce including the claimant but when Mr Edward Rooney found out that this was a matter of difficulty for the claimant, he told Mr Malachy Corbett to stop doing this.  Again there was no objective evidence to support the claimant’s contention that Mr Malachy Corbett had accused him of being off his head on drugs or that he had told him to repent or he would go to hell, and other comments of a religious nature.  Mr Edward Rooney admitted that the claimant had complained to him on one occasion about his treatment by Mr Malachy Corbett, and that occasion was when his mother and father had called at the respondent’s premises to remove the claimant.  Mr Edward Rooney confirmed that he had tried to investigate the matter and had invited the claimant and his father to come in and sit down with Mr Malachy Corbett to discuss this grievance.  They refused.  As that was the case, he told the claimant to go and have a cup of tea and come back to work later.  Which he duly did.  As such, we do not find the part of the grievance which accused Mr Edward Rooney of taking no notice of the complaints to be well-founded.  Plainly he had tried to intervene in a dispute to have the parties sit down with each other.

9.	Neither do we see any likelihood that the allegation that Mr Malachy Corbett threw the claimant’s covers about, has any validity.  On the balance of probabilities, we consider that the evidence of Mr Edward Rooney that the covers were expensive and his property and Mr Malachy Corbett would simply not do this, is more likely than not to be true.  Mr Edward Rooney gave uncontroverted evidence to the tribunal of the type of work that he carried out, and as it is of a high status we consider that it is more likely than not to be true that the quality of the materials used would be very high and thus expensive.

10.	There was not objective evidence that Mr Malachy Corbett deliberately spilled water over the claimant’s tools.  The claimant took possession of the table upon which tea making facilities were set out.  There was discussion over whether the kettle with which the tea was made which was faulty and boiled over thus causing the spillage over the tools.  There was no evidence to suggest a deliberate pouring of water over the claimant’s tools.  Nor was there evidence of a complaint on this subject to Edward Rooney.  Finally the claimant gave evidence that being given a winged chair to work on after he returned from his holiday was harassment of him by Mr Malachy Corbett, There was not evidence to suggest that this was a particularly difficult job and as the claimant’s job was to upholster, the tribunal considers that the claimant was simply being asked to do his job and in so doing was not being subjected to a fundamental breach of his contract.

11.	The alleged second part of the allegation of constructive dismissal in the claimant’s mind arose from the manner in which Dolores Rooney investigated the grievance and how her brother Eamon Rooney dealt with the appeal.  Dolores Rooney admitted that there were some discrepancies between her notes on dealing with the grievance and the actual evidence of the person she talked to.  For example, she assumed the reason for the Polish workers returning to Poland as being a downturn in work, when in fact the respondent firm was very busy.

12.	The tribunal does not consider that misstating the reason why two other workers had left employment with the respondent is a breach of the claimant’s contract of employment.  Even less, does the tribunal see how this would go to the root of the claimant’s contract.  Nothing of any substance turned on the reason.  It was not disputed that these two workers had left. 

13.	There were two criticisms of the manner in which the appeal was carried out by Eamon Rooney.  These were that he did not take statements from the people he talked to and that he used his sister’s facilities to carry out any correspondence flowing from the appeal.  Whilst it would have been good industrial practice to have taken statements from the person spoken to and it would have avoided the query about whether Paul McAllister was actually interviewed or not, the tribunal does not consider that this constitutes a fundamental breach of the claimant’s contract of employment.  Was the alleged failure to interview Paul McAllister a breach of the contract of employment of the claimant as a failure to properly conduct his appeal against the outcome of the grievance?  Given the high degree of correlation between Mr McAllister’s evidence and the other witnesses for the respondent’s evidence, the tribunal considers that it is more likely than not to be true that Mr McAllister was questioned during Mr Eamon Rooney’s appeal investigation.  Mr McAllister evidenced some difficulties in giving his evidence to the tribunal.  If however it was a breach not to interview him the tribunal does not consider that this in any way affected the claimant.  The evidence given by Mr McAllister to the tribunal plainly did not affect the claimant’s position, as it very largely supported the other evidence given by the other witnesses of the respondent.  Therefore the tribunal does not see how any alleged failure to investigate Mr McAllister could have changed the outcome of the appeal.

14.	Was it a breach of the claimant’s contract of employment for Mr Eamon Rooney to use the facilities in his sister and brother-in-law’s house for production of correspondence in connection with the appeal?  We do not think so.  This was plainly a very small business with limited facilities.  The tribunal does not therefore see that using Miss Rooney’s facilities, given the whole nature of the business and the evident lack of administrative resources is a breach of contract.

15.	In conclusion, the tribunal does not find that the claimant suffered any breach whether fundamental or otherwise of his contract of employment which would have entitled him either singularly or considered together to resign.

Chairman:

Date and place of hearing: 	29 August 2008;
6-9 October 2008, Belfast		

Date decision recorded in register and issued to parties: