THE INDUSTRIAL TRIBUNALS

CASE REF:  871/07

CLAIMANT:		Gary Diamond

RESPONDENT:	Montgomery Distribution Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not constructively unfairly dismissed by the respondent.  The claimant’s claim of unfair dismissal is dismissed.  The tribunal makes no order for costs against the claimant.

Constitution of Tribunal:

Chairman:		Ms Turkington

Members:		Mr Lysk
Dr Young

Appearances:

The claimant appeared and represented himself.

The respondent appeared and was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Judith Blair, Solicitor.

The Claim 

 1.	The claim was a claim of constructive unfair dismissal. 

The Issues

 2.	The issues to be determined by the tribunal were:-

(a)	whether the claimant had terminated his contract of employment in circumstances where he was entitled to terminate it without notice by reason of the respondent’s conduct, in other words, whether the claimant had been constructively dismissed pursuant to Article 127 (1) (c) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”); and

(b)	whether the dismissal was, in all the circumstances, fair or unfair; and

(c)	in the event that the tribunal found the claimant had been constructively dismissed and the dismissal was unfair in all the circumstances, the compensation to be awarded to the claimant.  The claimant did not seek reinstatement or re-engagement.

Sources of Evidence

3.	The tribunal heard oral evidence from the claimant and from Dr Adrian Church, Mrs Ruth Parks, Mr Philip Nugent and Mrs Mandy Diamond on behalf of the claimant and from Mr Paul Jackson, Mr Ian Carey and Mr Wilson McClelland on behalf of the respondent.  The tribunal also had before it an agreed Bundle of Documents and a number of other documents were introduced by the parties in the course of the hearing.

Contentions of the Parties

4.	The claimant contended that he had been subjected to ongoing bullying and harassment by his line manager Mr Paul Jackson.  He alleged that Mr Jackson was hostile towards him because he was a former employee of Dukes Transport and that Mr Jackson had a grudge against Dukes and anything or anyone associated with that company.  

5.	The claimant made a number of criticisms of the investigation of his grievance which was carried out by Mr Ian Carey.  Firstly, he complained that the investigation had taken too long.  Secondly, he complained that Mr Carey had “sat on the fence” and failed to reach a conclusion in relation to a number of the claimant’s allegations.  The claimant did not make any criticism of the appeal against Mr Carey’s findings which was conducted by Mr Wilson McClelland, save that the claimant clearly did not agree with Mr McClelland’s conclusion whereby he did not uphold the claimant’s grievance.

6.	The claimant contended that he was constructively dismissed and had no option but to resign from his employment with the respondent.

7.	The respondent’s counsel contended that there was no evidence to support any of the claimant’s allegations of bullying and harassment.  He contended that the claimant’s complaints fell into 3 categories:- 1.  instances where the claimant disagreed with company business policy  2. complaints relating to the tone used by Mr Jackson and unsupported by witnesses 3. malicious attempts to discredit or embarrass Mr Jackson or the respondent company.  Counsel submitted that none of the complaints was sufficient to amount to a repudiatory breach of contract.  

8.	Further, counsel for the respondent contended that there was a significant delay between the conduct complained of and the claimant’s resignation.  He also submitted that the claimant resigned in response to obtaining a new position rather than as a result of his complaints.  Finally, he submitted that the claimant had entirely failed to mitigate his loss and should not therefore be entitled to any compensation.

Facts of the Case

9.	The claimant was born on 30th July 1964.  Following his graduation from the University of Ulster in 1987, the claimant began work for Dukes Transport in Portadown.  He began as a General Operations Clerk and was promoted on a number of occasions until he became the Operations Director in 1996.

10.	Around the late 1990s, Dukes Transport was subject to a public enquiry in Scotland.  Dukes Transport lost its licence to operate in Great Britain and the Directors of Dukes Transport, including the claimant, were barred for several years from holding a CPC licence.

11.	The business of Dukes Transport was taken over by Montgomery Transport around November 2002 and the claimant’s contract of employment was transferred to the respondent company by way of a TUPE transfer.  

12.	Following the transfer, the claimant was employed as General Manager of the respondent company which operated the distribution (groupage) business of the Montgomery Transport group.  The main base of the respondent company was in Portadown.  The claimant was not a registered Director of the respondent company, but was allowed, at his request, to use the title of General Manager/Director.   The immediate parent company of the respondent company was Montgomery Transport Limited and the ultimate holding company was Ballyvesey Holdings Limited.  The other companies in the Montgomery Transport Group included Montgomery Refrigerated Limited and Montgomery Tank Services Limited.

13.	Around the time of the transfer, Mr Paul Jackson was appointed as Managing Director of the respondent company and he was the line manager of the claimant.  Mr Jackson had worked for the Montgomery Transport Group since 1995.  He had previously worked for Dukes Transport from 1980 to 1985 when his employment was terminated by the company.  Mr Jackson and the claimant had never worked together at Dukes. 

14.	Towards the end of 2005, Montgomery Transport Group decided to create a new post of Commercial Manager of the respondent company.  The intention was that the post holder would head up the distribution business and fill the role vacated by Mr Jackson when he became Managing Director of the Montgomery Transport Group and based at Glengormley.  Mr Jackson was to be the line manager of the person appointed to the new post of Commercial Manager.

15.	Around December 2005, the claimant had a conversation with his wife when they discussed difficulties he felt he was experiencing at work.  They agreed that the claimant’s application for a new and more senior role within the respondent company, that is the post of Commercial Manager, would be a good indication if there was any future for him within the company.  From this point, the claimant decided to take notes of what he considered to be relevant events at work, although the earliest of the notes produced by the claimant to the tribunal dates from the end of May 2006.  

16.	The post of Commercial Manager was advertised and the claimant applied for the post.  Interviews for this post were held in the early part of 2006.  The claimant was informed by letter dated 11th April 2006 that he had been unsuccessful in this application.  The tribunal noted that the first of the claimant’s notes of relevant events post-dates the date of this letter.

17.	At the hearing, the claimant claimed that, at the time of interview for this post, he did not want the post.  The tribunal does not accept the claimant’s evidence in this regard.  The tribunal is satisfied, on the balance of probabilities, that the claimant did want the post of Commercial Manager and would have accepted the post had it been offered to him.  The tribunal is also satisfied that, when the claimant was not successful in his application for this post, he took this as an indication of how he was viewed by his employer.

18.	Mr Steve McDonald, an external candidate, was appointed to the post of Commercial Manager and took up the post in July 2006.  Upon taking up post, Mr McDonald was to be the claimant’s line manager.

19.	There was a significant downturn in the financial position of the respondent company from the early months of 2006.  The actual performance of the business was significantly below the budget forecast and substantial losses were incurred during the year to September 2006.

20.	The claimant consulted his solicitor about his employment situation in early May 2006 and attended his GP Dr Church on 2nd June 2006 when he gave a history of “feeling stressed for the last 6 months, particularly from his superior”.  Dr Church advised the claimant to draw to his manager’s attention that stress was affecting his health.  The claimant did raise this with Mr Jackson when he met with him later that same day 2nd June 2006.

21.	The claimant went off sick on 26th July 2006 and submitted an initial self-certificate which referred to “work related stress”.  A first medical certificate which also stated “work related stress” was signed on 2nd August 2006.  

22.	On 26th July 2006, the claimant sent an initial letter of grievance to the Chairman of the Montgomery Transport Group Mr Harold Montgomery.  Prior to this, the claimant had made no complaint to his employer regarding his treatment by Mr Jackson.  In his letter of 26th July 2006, the claimant alleged that he had suffered bullying and harassment by his manager Mr Paul Jackson.  Mr Montgomery responded by a letter dated 3rd August 2006 in which he asked the claimant to provide details of his complaint in writing.  The claimant set out the details of his complaint in a document entitled “Gary Diamond’s complaint” and dated 18th August 2006 (“the claimant’s grievance”).  This grievance sets out at least 20 separate allegations/complaints and runs to some 12 pages.

23.	The tribunal has found relevant facts in relation to the complaints set out in the claimant’s grievance – for ease of reference, the tribunal has adopted the numbering system which was used by Mr Ian Carey in his investigation report and which was used by the parties at the hearing before the tribunal:

Allegation 1

24.	This allegation relates to a telephone call from Mr Jackson to the claimant on 28th February 2006 in respect of tractor units.  In the claimant’s grievance, the claimant complained about the tone and the manner in which Mr Jackson spoke to him.  He alleged that Mr Jackson was irate, that he referred to the claimant’s former employment with Dukes Transport and that he used insults.  Mr Jackson accepted that he was irate and that he did have words with the claimant in the course of this telephone conversation.  

25.	The tribunal finds as a fact that Mr Jackson was irate during this telephone conversation and that words were exchanged between him and the claimant.

Allegation 2

26.	In his written grievance, the claimant alleged that from March 2006 he was put under undue pressure in relation to financial budgets. He alleged that Mr Jackson demanded that a profit of £500,000 be included in the budget which he regarded as unrealistic.  The claimant complained about the manner in which Mr Jackson applied this pressure.  Mr Jackson’s evidence in response was that the figure of £500,000 was the claimant’s idea and he thought it was too ambitious.  

27.	It was agreed that the budget for 2005/2006 was discussed at a management meeting on 21st September 2005.  In the minutes of this meeting, the claimant is recorded as saying that the sales budget was achievable, but that serious effort and efficient management would be required.  Mr Jackson was recorded as saying that it would take a massive effort to achieve both the turnover and profit budget.  These minutes were never disputed by the claimant.  The final budget included a profit figure of £250,000 not £500,000.  When he was interviewed in the course of the internal appeal, Mr Peter Duncan the respondent’s Finance Director stated that the budget forecast was volunteered by the claimant and that he had expressed concern about the claimant’s ability to deliver on it.  However, Mr Duncan also accepted that the statement attributed to Mr Jackson by the claimant “it has to be £18M turnover and £500,000 bottom line” would not be an untypical comment for Mr Jackson to have made.

28.	The tribunal accepts that at some point in time, the original budget figure for profit was £500,000.  At some stage, the budget figure for profit became £250,000.  It is not clear from the evidence before the tribunal precisely when this figure was amended, although it is clear that that the final figure of £250,000 was approved by the board of the respondent company.  

29.	The tribunal accepts that, on the balance of probabilities, it is more likely the original figure of £500,000 came from Mr Jackson rather from the claimant.  In this regard, the tribunal considers it more likely that the bar was set higher by the respondent company and the tribunal has also taken account of the statement by Mr Duncan that the comment attributed by the claimant to Mr Jackson would not be untypical.

30.	The tribunal notes, however, that by March and April of 2006, the actual performance of the respondent company was generally poor and indeed the company was operating at a loss.  The tribunal therefore believes that this poor performance inevitably resulted in a certain amount of pressure on the claimant who was the General Manager of the respondent company.

Allegation 3

31.	The claimant alleged that on or about 9th March 2006, he received a telephone call from the owner of a rival transport company which he had found threatening.  He reported this to Mr Jackson and asked to switch cars with Mr Jackson.  The claimant’s complaint was that his concern was quickly brushed over. The claimant said that Mr Jackson simply said the matter would die down and never offered his car.   The claimant did not produce to the tribunal any note concerning this incident.

32.	In the course of the internal investigation and in his evidence to the tribunal, Mr Jackson said that he had offered his car to the claimant, but the claimant did not take up the offer.  

33.	The claimant accepted that there were no further incidents following the incident on 9th March 2006.

34.	The tribunal has found it difficult to reach a clear conclusion in respect of this allegation.  There is a clear conflict of evidence between the claimant and Mr Jackson and the tribunal was unable to find any corroborative evidence one way or the other.  The tribunal has therefore concluded that this allegation is not made out.

Allegation 4

35.	The claimant complained that Mr Jackson never discussed with him nor gave him feedback in relation to a business plan which Mr Jackson had asked him to prepare.  

36.	It was agreed that on 10th May 2006, Mr Jackson sent a letter to the claimant requesting that he prepare a structured business plan for the remainder of the financial year.  The claimant submitted his first plan on 12th May 2006.  Mr Jackson responded to the claimant by letter dated 19th May indicating that he was disappointed with the plan submitted and that it was inadequate.  This first business plan was then withdrawn and a fuller business plan was submitted by the claimant on 30th or 31st May 2006.   Mr Jackson’s letters to the claimant of 10th May and 19th May both indicated that the business plan would be discussed at a meeting. 

37.	In his evidence to the tribunal, the claimant maintained that his second business plan was never discussed and that this was a matter of great significance for him.  For his part, Mr Jackson in his evidence maintained that the business plan was discussed between the claimant and himself at a meeting on 2nd June 2006 and in this regard, he relied on notes he claimed to have made during this meeting.

38.	Having considered the content and style of Mr Jackson’s notes of the meeting of 2nd June 2006, the tribunal considers it highly unlikely that those notes were made during the meeting as claimed by Mr Jackson.  Rather, the tribunal believes that these notes were created some time subsequent to the meeting.

39.	In relation to the claimant’s complaint that Mr Jackson never formally discussed the business plan with him, the tribunal accepts that some of the issues raised in the business plan were discussed with the claimant during the meeting on 2nd June 2006.  However, the tribunal is satisfied, even on Mr Jackson’s version of events, that there was never a full discussion of the content of the business plan between Mr Jackson and the claimant.

Allegation 5

40.	This allegation relates to an e-mail from Mr Jackson to the claimant dated 19th May 2006.   Having summarised a number of incidents involving a particular salesman, Mr Jackson stated in this e-mail “I think you have employed a liability”.  This salesman had been recruited by the claimant and the local depot manager.  The claimant’s complaint was that this comment amounted to a personal attack on him.   The e-mail was addressed to the claimant and copied only to Mr Peter Duncan the Finance Director of the respondent company.

41.	Having considered the relevant evidence and particularly the full content of this e-mail, the tribunal does not accept that this constituted a personal attack on the claimant by Mr Jackson.

Allegation 6 

42.	The claimant’s allegation was that on 30th May 2006, just as he was leaving the depot for a short time in his car, he received a call from Mr Jackson.  The claimant alleged that Mr Jackson used words to the effect of “Just before you do a disappearing act, I need to talk to you right now”.  The claimant’s evidence was that this was said in a very nasty tone and that he found this demeaning. 

43.	Mr Jackson denied speaking to the claimant in a nasty or demeaning tone.

44.	It was agreed that the claimant told Mr Jackson that he would be back in 5 minutes and that Mr Jackson accepted this and the claimant and Mr Jackson then met when the claimant returned to the depot.  

45.	Having considered all the relevant evidence, the tribunal is satisfied that the message was delivered by Mr Jackson abruptly and was perceived by the claimant as being nasty in tone.

Allegation 7

46.	The claimant’s allegation was that on 30th May 2006, Mr Jackson made comments relating to “de-Duking” during a conversation in the canteen with Tom McColgan, Alan Thompson and himself.  The claimant alleged that Mr Jackson said that his plans to “de-Duke” the company were not far from completion.  The claimant said he found these comments to be personally insulting and very insensitive.  He believed that phrases relating to “de-Duking” were used by Mr Jackson with reference to individuals, namely former employees of Dukes Transport.

47.	In the course of the investigation and in his evidence to the tribunal, Mr Jackson accepted that he did use the phrase “de-Duking”, but that he did not regard it as insulting.  Mr Jackson contended that it was used in the sense of re-branding of the company from the Dukes brand to the Montgomery brand.  Mr Jackson felt that the Dukes brand was de-valued in the industry.  Mr Jackson maintained that the term “de-Duking” was used in relation to changing the livery of trailers and the headed paper and so on used by the respondent company, but not with reference to individual employees.

48.	When interviewed in the course of the investigation, other witnesses including Peter Duncan and Tom McColgan confirmed that they had heard the phrase “de-Duking” used, but understood it to be in the context of re-branding and not referring to individuals.  

49.	The note made by the claimant setting out the relevant conversation in the canteen indicates that the comment was made by Mr Jackson after he had enquired about a refrigerator unit with Dukes livery in the yard (p 243A of the tribunal bundle).  The portion of the note which sets out the context appears on the second page of the note.  Initially, this was not included in the note which appeared in the bundle of documents which the claimant prepared for the hearing.  This bundle included the first page of this note only which gave no indication as to the context in which these comments were made.  The second page of this note which provided the context only came to light when the original note was inspected by the respondent’s counsel.  The tribunal considers that it was the claimant’s intention to conceal the context in which the alleged comments were made and the tribunal believes that the claimant’s conduct in this regard was disingenuous.  

50.	In her evidence to the tribunal, Mrs Ruth Parks also referred to Mr Jackson’s strong reaction to finding Dukes headed paper in a store room and to seeing vehicles with Dukes livery in the yard.  Mr Philip Nugent in his evidence to the tribunal accepted that Mr Jackson had never used the phrase “de-Duking” in the context of removing a person.

51.	The tribunal is satisfied that Mr Jackson’s attitude was generally hostile towards anything connected with Dukes Transport.  It is also clear that there was a drive towards re-branding of the business in light of the history of Dukes Transport as set out at para 10 above.

52.	However, on the basis of the evidence before it, the tribunal is not satisfied that the phrase “de-Duking” was used by Mr Jackson in connection with the removal of individuals who were former employees of Dukes Transport.

Allegation 8

53.	The claimant alleged that Mr Jackson had a “hit list” which was often referred to in open forum which included employees that he wanted to get rid of.  The claimant alleged that this hit list included Mr Lynn Jamison (Sales Executive), Raymond Donaldson (Fleet Manager), Ruth Parks (nee Taylor) (PA), Michael Watson (Accountant), James McAdam (Traffic Operator), Ross McClelland (Operations Manager) and David Butler (Operations Director).  All these individuals had left the company and all were ex-Dukes employees with the exception of Mr Butler.  The claimant believed that he was on this “hit list” and that he was put under pressure by Mr Jackson in the expectation that he would resign.

54.	The respondent accepted that there was something referred to as a “hit list” around the early part of 2003 when the company was rationalising and making redundancies after the take-over of Dukes Transport.  The respondent contended that there was no common theme to the circumstances in which the individuals referred to by the claimant had left the company.

55.	Generally, the tribunal notes that there was no evidence before it which would have assisted the tribunal in determining the extent to which the individuals named by the claimant were representative.  In particular, it was not clear how many former employees of Dukes Transport remained in the employment of the respondent company.

56.	It was clear that the individuals had left the respondent company in a variety of different circumstances and the tribunal could not therefore be satisfied that the evidence demonstrated Mr Jackson operated a “hit list” of individuals he wished to have removed from the company after the initial redundancy exercise in 2003.  Further, the tribunal could not be satisfied that the individuals referred to by the claimant were removed because their names appeared on any such “hit list” nor that the claimant was included in such a “hit list”. 

Allegation 9

57.	The claimant’s allegation related to a complaint raised by Peter Biggs, Depot Manager of the Crick Depot against the claimant in which he complained about the way he had been treated by the claimant and the action he had been asked to take by the claimant.   The claimant’s allegation was that he had been “set up” in relation to this complaint and that he had merely passed on the instruction he had been given by Mr Jackson. The claimant alleged that when Mr Biggs had objected, Mr Jackson and Mr Duncan had sought to conceal the true position and pass the blame on to the claimant.

58.	It was clear that Mr Biggs had contacted the claimant in some distress on 23rd May 2006 to say that the licensing body VOSA wanted to interview him under caution about a vehicle from the Chalfont depot which had been stopped without a proper licence.  At that time, there was no valid licence in place for the Chalfont depot.  The claimant then raised this issue at a management meeting later the same day with Mr Duncan and Mr Jackson.

59.	There was a clear dispute between the claimant and the respondent about the precise nature of the instructions which were given at that meeting in order to address this issue.  The claimant alleged that Mr Jackson said that the company could not afford to hire vehicles and that vehicles would be changed over with Portadown vehicles at the weekend meaning that the Chalfont vehicles would be running unlicensed for 3 days.  On the other hand, the respondent contended that the instruction given at the meeting was that the unlicensed vehicles should be taken off the road immediately and then replaced by Portadown vehicles at the weekend.  If this was the instruction given, it is clear, by implication, that the company would have been required to hire replacement vehicles for the interim period of 3 days.

60.	The minutes of the management meeting state that “it was agreed that the London vehicles must be added to a licence, and be parked until they were so added.  Vehicles from Portadown would replace the London vehicles at the weekend if no licence was granted before then.”  These minutes were taken by Mr Duncan and were circulated by e-mail on 30th May 2006 to the claimant and to Mr Jackson.   At the next management meeting in June 2006, the claimant objected to the accuracy of these minutes.  He also argued that, if the vehicles were to be parked up immediately, the minutes should have recorded the alternative action to be taken, but this was not recorded. 

61.	The evidence in relation to this allegation is entirely contradictory.  The one point which is clear is that the claimant gave Peter Biggs an instruction which was unlawful and which he, quite properly, refused to act upon.  On balance, the tribunal does not accept the claimant’s version of events in relation to this allegation.  The tribunal is of the view that it is more likely that the claimant did not, as he alleged, simply pass on an unlawful instruction given to him by Mr Jackson.  In reaching this conclusion, the tribunal has weighed up, on the one hand, the point made by the claimant as to whether he would have taken it upon himself to give an unlawful instruction and, on the other hand, the contention on behalf of the respondent that the company is unlikely to have taken the risk of acting unlawfully, particularly when it was facing an enquiry in relation to its application for a licence for one of its depots.  Since the claimant was barred from holding a CPC licence and in view of the claimant’s rather ambiguous evidence when cross-examined as to whether he accepted that the said instruction was actually unlawful, the tribunal concluded on balance that it was more likely that the claimant had himself decided to pass on the instruction which was given to Mr Biggs.

Allegation 10

62.	This complaint related to the normal practice of withholding money from the last payment to a sub-contractor in respect of claims.  The claimant alleged that he had followed the normal practice in this case, but that Mr Jackson had given instructions directly to Philip Nugent whose line manager was the claimant that all monies should be paid in this case.  The claimant alleged that Mr Jackson’s tone in addressing this matter with him was very belittling.

63.	The respondent’s position was that Mr Jackson was at this time engaged in discussions with the former owner of Robinson Transport and that the instructions to pay all outstanding monies were given as part of the overall deal he was negotiating. 

64.	The tribunal considers that the claimant was kept “out of the loop” in this case and that it is unfortunate that the claimant was not informed in good time that the normal practice would not be followed in this case.  

Allegation 11

65.	This allegation related to a meeting between the claimant and Mr Jackson on 2nd June 2006.  The claimant says that he told Mr Jackson that he was under a lot of stress, he was not feeling well and had been to see his GP.  He also said that he was not getting support from the Board in turning things around.  The claimant said he then asked “does my face not fit?”.  Mr Jackson then got very aggressive and said “Don’t pull that one with me”.  The claimant alleged that Mr Jackson had raised his voice, thumped the desk, got out of his seat and pointed his finger.  Generally, the claimant alleged that Mr Jackson was very unsupportive and that he felt more isolated after this meeting.

66.	Mr Jackson agreed that the claimant had said that he was “under pressure”, but did not use the word “stress” and that the claimant had asked whether “his face did not fit”.  He denied becoming aggressive.  Mr Jackson alleged that the claimant made his comments after Mr Jackson had informed him that Steve McDonald would be joining the company as Commercial Manager beginning on 3rd July 2006.

67.	In light of the matters raised by the claimant and the tribunal’s assessment of the character of Mr Jackson, the tribunal considers it likely that Mr Jackson did become aggressive at this meeting.  However, the tribunal also notes the last few lines of the claimant’s note of this meeting where Mr Jackson is recorded as saying “we would collectively get it sorted”.  Therefore, on the basis of the claimant’s note, the tribunal believes the meeting ended fairly positively.

Allegation 12

68.	This allegation relates to various conversations between the claimant and Mr Jackson in relation to unit loads/bulky groupage around 5th to 7th June 2006.  The claimant alleged that he was “terrorised” with threats by Mr Jackson and was persistently harassed for weeks on this issue.  He alleged that he had a telephone call from Mr Jackson on 7th June 2006 during which Mr Jackson started to shout and brought up his former employer Dukes.

69.	The respondent’s position was that the agreed policy within the group as laid down by the Board was that bulky or full loads were to be carried by Montgomery Transport rather than the respondent company thereby leaving the distribution business to focus on its core business of groupage.  Mr Jackson felt that the claimant fundamentally disagreed with this policy and was reluctant to implement it fully and pass this business on to Montgomery Transport, even though this business was less profitable for the respondent.

70.	The tribunal accepts that there was pressure placed on the claimant by Mr Jackson to comply with the group policy on unit loads/bulky groupage.  The tribunal considers that the request to implement the policy was not unreasonable and the tribunal also believes that the claimant was resistant to the respondent’s policy.  The tribunal is not satisfied that this pressure was applied in an unreasonable manner.

Allegation 13

71.	This allegation related to a meeting on 13th June 2006 between the claimant and Mr Jackson.  The claimant alleged there was a discussion about Steve McDonald joining the company and Mr Jackson gave instructions that the claimant should remove the title “director” from all his business cards and correspondence.  The claimant contended this was a personal attack to demoralise him and coerce him to leave.   However, in the course of his evidence to the tribunal, the claimant said that being asked to remove the title of director was disappointing, but this was not the cause of his decision to resign.

72.	Mr Jackson agreed that the claimant was asked at this meeting to remove the title of director which he considered to be a courtesy title only.  His explanation was that Steve McDonald who was to be the claimant’s line manager was joining the company as Commercial Manager and it would be illogical and inappropriate in these circumstances for the claimant to continue to use the title of director.  He also contended that it was necessary for this issue to be resolved at this time before the claimant left on holidays. 

73.	The tribunal accepts the logic of the respondent’s explanation in relation to the removal of the title of director.  The tribunal does not believe that this amounted to a personal attack on the claimant.

Allegation 14

74.	The claimant alleged that Mr Jackson consistently under-mined his position with staff who reported to him.  He gave an example of a meeting he had conducted with Jim McAteer, Richard Sullivan, Richard Bothwell and Philip Nugent on 23rd June 2006.  The claimant said he had been asked by the Chairman of the group Mr Harold Montgomery to make these middle managers aware of the difficult position the company was in and he did so at this meeting.  The claimant also raised issues about housekeeping, discipline and so on at the depot. 

75.	That evening, the claimant said he had received a call at home from Mr Jackson who he alleged was “like someone deranged”.  He also received a call from Jim McAteer who was troubled about the meeting, but the claimant felt he had smoothed matters over by the end of that call.  Then on the Monday morning, Mr Jackson called again saying that Mr McAteer had complained that he felt demoralised after the meeting.  Mr Jackson came up to the Portadown depot that afternoon to discuss the meeting with the claimant.  Mr Jackson then met with the staff the next day after the claimant had gone on holidays.  The claimant believed Mr Jackson told the staff they had done nothing wrong and that all the problems were due to lack of sales and that this was done to under-mine him.  

76.	Mr Jackson’s contention was that Mr McAteer had phoned him at the weekend after the meeting between the claimant and the managers which had left him demoralised.  He had not been reassured following his discussion with the claimant.  Mr Jackson says he asked the claimant if he felt he had demoralised these staff and said that he would speak to them.  He then met with the same middle managers a few days later and this was a “pep talk” to raise their spirits.

77.	When interviewed in the course of the investigation, Philip Nugent said that the main focus of the meeting was on poor performance and the need to control costs.  He confirmed that, after the meeting, Mr McAteer said he felt demoralised and was upset about the comments about “sloppiness”.  Mr Jackson’s meeting focused on motivating the managers.

78.	When he was interviewed in the course of the investigation, Mr Bothwell’s recollection was similar to that of Mr Nugent.  He referred to Mr Jackson’s later meeting as a “pep talk”.

79.	Mr Sullivan said that those who were at the meeting were despondent afterwards and Mr McAteer was aggrieved.  He also described Mr Jackson’s meeting as a “pep talk”.

80.	The claimant’s own note of the meeting with the managers (p261 of the bundle) states that “the body language was one of shock”.

81.	It is clear that, following the meeting between the claimant and the middle managers on 23rd June 2006, those managers were shocked.  The claimant was leaving on holiday shortly afterwards and the tribunal believes it was reasonable for Mr Jackson to seek to reassure the staff concerned.  On the basis of the available evidence, the tribunal is satisfied this was nothing more than a “pep talk”.  There was no evidence before the tribunal that it was Mr Jackson’s intention in meeting with the staff to under-mine the claimant nor that this was the effect of the meeting.

Allegation 15 

82.	The claimant complained that Mr Jackson constantly used the phrases “It’s my way or no way” and “if you don’t like it, the gate is big enough to let you out”.  Specifically, he complained that Mr Jackson said this to him during the telephone conversation on the evening of 23rd June 2006 referred to at allegation 14 above.

83.	Mr Jackson’s response was that he did use the phrase “my way”, but that this was something of a standing joke between himself and the claimant and that this followed from a performance of the song given by him at a charity event.  

84.	In the course of cross-examination on this point, the claimant accepted that he did not take the “gate” comment as an invitation to quit.

85.	The tribunal is satisfied that both comments referred to by the claimant in his complaint were used by Mr Jackson.  However, the tribunal is not satisfied that the claimant found this to be offensive.

Allegation 16 

86.	The claimant’s complaint related to treatment of him which occurred after his company car was stolen from the Dublin depot of the respondent whilst he and his family were on holiday in France.  The claimant alleged that Mr Jackson had told him to park the car at the depot and that he had done so himself.  The claimant’s complaint was that the only offer of assistance made by Mr Jackson was to send a car which was too small to accommodate the claimant, his family and all their possessions and that the manner in which he was treated made him feel like a nobody in the company.  Further, after the theft of the car, Mr Jackson had said to the Claims Manager Mr Nugent that a bill for the loss of the car should be sent to the claimant.

87.	Mr Jackson’s evidence was that he did not suggest to the claimant that he park his car at the Dublin depot and that he had never done so himself.  Mr Jackson stated that, on the day the claimant returned from holiday, it was his intention to take 2 cars down to Dublin airport to collect the claimant, his wife and family and all their belongings.  He admitted telling Mr Nugent to send a bill to the claimant, but that was not done and the claim was made through the company insurance in the normal manner.

88.	When interviewed in the course of the investigation, Rhonda Hylands PA to MrJackson stated that she had been asked by Mr Jackson to phone the claimant to let him know that Mr Jackson would arrange for someone to come down to Dublin and bring the claimant and his family back to Portadown.  Ms Hylands did not mention any second car in her statement.

89.	The claimant did take and drive the Astra car following his return to work after his holiday.

90.	On balance, the tribunal believes that Mr Jackson did suggest to the claimant that he could park his car at the Dublin depot.  It was agreed by both parties that the claimant’s company car was stolen.  The tribunal also accepts that, in practical terms, the Astra car offered to the claimant was too small to accommodate his family and all their luggage etc.  The tribunal does not accept that it was ever the intention of Mr Jackson to send 2 cars to bring the claimant and his family home.  Certainly, since 2 cars were never mentioned by Ms Hylands who was conducting the discussions with the claimant, the tribunal is satisfied that no offer of 2 cars was ever made to the claimant.  The tribunal is further satisfied that the offer of the Astra car was rejected by the claimant simply because the car was too small.  

91.	The tribunal further accepts that Mr Jackson did say to Mr Nugent that the claimant would have to pay for the loss of his company car, but it is clear that the claimant was not required to make payment.  

92.	The tribunal considers that Mr Jackson’s treatment of the claimant and his family following the theft of the car was somewhat insensitive. The tribunal considers it unfortunate that the claimant and Mr Jackson chose not to speak to each other directly about these matters and that instead they chose to conduct discussions via Ms Hylands.  

Allegation 17 

93.	The claimant’s complaint was that he was rarely allowed to see the accounts until they were sanctioned by Mr Jackson and that he sometimes only received the accounts the day before a management meeting which put him at a disadvantage in preparing for the meeting.  The claimant clarified in the course of the investigation into his grievance that he was not alleging that the accounts were deliberately withheld by Mr Jackson.  

94.	In his response, Mr Jackson said that the accounts were late for everyone due to the pressure on accounts preparation.

95.	When interviewed in the course of the investigation, Mr Duncan the Company Accountant confirmed that Mr Jackson did see the accounts first as he was the Managing Director and that he did on occasion try to change the accounts, but this was not allowed by Mr Duncan.  He gave an example of one occasion when the claimant had raised an issue about the accounts, namely that the respondent company had been over-charged and this was then corrected in the next accounts.

96.	If the accounts were delivered late, then the tribunal is of the view that there is no evidence that this was brought about by Mr Jackson.

Allegation 18

97.	The claimant alleged that antique furniture from the Portadown warehouse was taken to Mr Jackson’s house after he had said that the company chairman Mr Harold Montgomery wanted it.

98.	Mr Jackson accepted that the furniture was taken to his house, but said that Mr Montgomery was fully aware of this.

99.	It is clear that the furniture was taken to Mr Jackson’s house.  The tribunal does not believe this is of any great significance to the claimant’s claim.

Allegation 19

100.	The claimant’s complaint related to excess tyres being sold into the Republic of Ireland and complete cash was not fully accounted for.  He alleged that this had occurred on 3 or 4 occasions.  The claimant said that he felt very uncomfortable about this practice, that it was against his principles and the customer would be horrified.

101.	In the course of the investigation, both Mr Jackson and Mr Duncan accepted that excess tyres had been sold in the Republic of Ireland but that all cash was banked to the company account.  Mr Duncan suggested that the claimant had purchased a number of tyres himself.  Mr Jackson said the claimant had never indicated that the practice of selling excess tyres offended him.

102.	Both during the investigation and in his evidence to the tribunal, the claimant denied buying tyres for his own use.  The claimant’s evidence to the tribunal was that on 2 occasions motorbike tyres had been left behind his car or in his boot for him to sell to a local dealer and that he had done so and returned the cash received to the company.  Mr Jackson denied that this would ever have occurred.

103.	The respondent’s receipts journal contains the following entries:-

30/5/05 G Diamond FAO Joyce £150 cash motorbike tyres

4/?../06 G Diamond tyre £30 cash”

104.	The tribunal notes that the claimant did not make any contemporaneous complaint about these matters nor did he produce any note.  The tribunal accepts that excess tyres were sold into the Republic of Ireland and that motorbike tyres were disposed of by the claimant in return for cash.  However, on balance, the tribunal is not satisfied that the claimant was offended or morally outraged by this practice which he went along with at the time.

Allegation 20

105.	The claimant alleged this was a “bone of contention” between himself and Mr Jackson.  His complaint was that the cost of using Montgomery Transport, another company in the group, to carry out “trunking” for the respondent was far above the market rate.  It was the claimant’s view that this resulted in a distinct disadvantage in the profit performance of the respondent company.   He stated that this formed part of his business plan.  He alleged that Mr Jackson would not permit trunking to be done outside the group at lower rates.

106.	Mr Jackson’s response to this allegation was that the claimant fundamentally disagreed with the group policy on this issue.  In his evidence to the tribunal, Mr Jackson stated that the policy which required trunking to be done in-house was a group policy set by the Board of the parent company, not his personal policy.

107.	The tribunal accepts that the practice of retaining “trunking” within the group was group policy and there is no evidence to suggest that this was done in order to get at the claimant or cause him to be disadvantaged.

Investigation

108.	An investigation into the claimant’s grievance was conducted by Mr Ian Carey who had joined Ballyvesey Holdings Limited as Finance Director on 3rd September 2006.  Around the middle of September, Mr Carey was asked by Mr Harold Montgomery, the Chairman of the group, to conduct an investigation into the grievance.  Mr Carey had no previous knowledge of the claimant or of any of the individuals referred to in the grievance.

109.	The solicitors acting for the claimant at this time sought medical advice from the claimant’s GP Dr Church in relation to the conduct of the investigation in view of the claimant’s medical condition.  Dr Church advised that the claimant should be provided with a list of questions prior to Mr Carey meeting with him.  Mr Carey did provide the claimant with a list of written questions and the claimant supplied written answers to these questions. Mr Carey then met with the claimant on 25th September 2006 to obtain further clarification in relation to his complaint.  Mr Alan Thompson, Financial Controller attended this meeting as note-taker and the claimant was accompanied by a colleague Mr Philip Nugent.  

110.	Mr Paul Jackson furnished to Mr Carey his written response to the claimant’s grievance.  In the course of his investigation, Mr Carey interviewed the following individuals who were referred to in the claimant’s grievance on the dates indicated:-

Mr Paul Jackson (26th October 2006)
Mr James Darragh (12th October 2006)
Ms Rhonda Hylands (26th October 2006)
Mr Alan Thompson (26th October 2006)
Mr Peter Duncan (27th October 2006)
Mr Peter Biggs (6th November 2006)
Mr Philip Nugent (10th November 2006)
Mr Richard Bothwell (10th November 2006)
    Mr Richard Sullivan (10th November 2006)

	Notes of Mr Carey’s interviews with these individuals were included as appendices to his report.

111.	Mr Carey’s investigation report, which runs to some 15 pages, together with appendices was issued to the claimant on 29th November 2006.  Mr Carey set out his findings in relation to each of the claimant’s allegations and concluded that he did not uphold the claimant’s complaint that he was subjected to bullying and harassment by Mr Jackson.  He noted that Mr Steve McDonald was now in post as Commercial Manager and given that the claimant would be reporting directly to him, he believed this may allay the claimant’s apprehension about returning to work.

112.	The claimant was also informed that he had 5 working days to appeal against Mr Carey’s findings.  The claimant’s then solicitors, Elliott Duffy Garrett, wrote to Mr Carey on 30th November 2006 seeking additional time to lodge an appeal.  The claimant’s detailed grounds of appeal were submitted on 8th December 2006.  In this document, the claimant stated that he did not believe his grievance had been treated properly.  He complained about the delay in progressing his complaint and that Mr Carey had failed in his duty by failing to reach any conclusion on a number of complaints.

113.	The claimant’s appeal was heard by Mr Wilson McClelland.  Mr Harold Montgomery and Mr Carey asked Mr McClelland to deal with the claimant’s appeal.  Mr McClelland was Mr Carey’s predecessor as Finance Director of Ballyvesey Holdings and had retired from full-time work in September 2006.  Mr McClelland knew both the claimant and Mr Jackson, but he had no prior involvement in the claimant’s grievance.

114.	Mr McClelland received the relevant papers around 13th or 14th December 2006.  These included the claimant’s original grievance letter, Mr Carey’s report and the claimant’s grounds of appeal.  Mr McClelland telephoned the claimant’s solicitors Elliott Duffy Garrett in the middle of December indicating that it would not be practical to get the appeal under way before Christmas.

115.	Mr McClelland interviewed some witnesses on 8th January 2007 and interviewed the claimant on 11th January 2007.  In the course of his appeal investigation, Mr McClelland interviewed additional witnesses who were referred to in the claimant’s appeal, namely Mr Tom McColgan and Mr Stephen Bell.  Mr McClelland also re-interviewed a number of the witnesses who had been interviewed by Mr Carey in the course of his investigation in order to obtain their response to points made by the claimant in the course of the appeal.

116.	On 29th January 2007, Mr McClelland sent the claimant copies of the notes of his meeting with the claimant and his interviews with the other witnesses.  He asked the claimant to contact him urgently with any comments on this material.  The claimant phoned Mr McClelland on 31st January 2007 to agree the notes of his meeting with Mr McClelland on 11th January.  He made no further comments.  He did not ask Mr McClelland to interview any other witnesses.

117.	Mr McClelland issued his decision on the appeal on 2nd February 2007.  The claimant’s appeal was not upheld.  Mr McClelland concluded that the claimant’s allegations of bullying and harassment were not substantiated on the evidence available to him.  Mr McClelland concluded by encouraging the claimant to return to work under his new line manager Mr McDonald.

118.	By letter dated 9th February 2007, the claimant resigned from his employment with Montgomery Distribution Limited stating “in light of all the company’s actions, I feel I have no choice but to consider myself constructively dismissed”.

119.	The claimant never returned to work prior to his resignation and was off on sick leave continuously from 26th July 2006 to the date of termination of his employment.  The claimant’s period of sick leave was covered by valid medical certificates stating the cause of his absence from work as “work related stress”.  During his sickness absence up to 29th November 2006, the claimant received full pay.  After 30th November 2006, he received statutory sick pay only.  The claimant remained on sick leave and never returned to work with the respondent company.  

120.	Prior to 30th November 2006, the claimant earned approximately £3,000 per month net.  He also received employer’s pension contribution of £500 per month and the benefit of his company car was worth approximately £5,000 per annum.

121.	On 5th January 2007, approximately one month before the date of his resignation, the claimant signed an application to join Citigroup Solutions Financial (UK) Ltd as an “appointed representative”.  Before completing this application, the claimant had been introduced to the “Citisolutions concept” by an acquaintance and he had then attended a formal presentation in Belfast.

122.	The claimant’s appointment as a Citisolutions appointed representative was confirmed by letter dated 12th February 2007.  A few days before that, the claimant received a telephone call indicating that his appointment would shortly be confirmed.  The claimant conceded that it was possible this telephone call came on the same day as his letter of resignation from the respondent.

123.	The claimant worked for Citisolutions between 12th February 2007 and 15th May 2007 and received the sum of £2237.67.  In or around 15th May 2006, Citisolutions ceased business in the UK.  The claimant received a settlement of £2,237.67 in respect of the termination of his appointment.  This was equal to the sum he had received from Citisolutions by way of commission during his appointment as an appointed representative.

124.	Since termination of his employment with Montgomery Distribution, the claimant has made no applications for any employment or source of income save for Citisolutions.  The claimant re-commenced work for a successor to Citisolutions in or around November 2007.

Statement of Law

125.	By article 127 (1) (c) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), a resignation by an employee can, in defined circumstances, constitute a dismissal by the employer.  This is generally known as constructive dismissal.  Article 127 (1) (c) of the Order states as follows:-

“(1) For the purposes of this Part an employee is dismissed by his employer if ……….
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.”

126.	The statutory grievance procedure applies in cases of alleged constructive dismissal so that the claimant must have made a complaint in writing to the employer and waited at least 28 days before lodging a complaint with the tribunal – see Article 19 of The Employment (Northern Ireland) Order 2003 together with Schedules 1 and 3 and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

127.	Harvey on Industrial Relations and Employment Law (“Harvey”) at Div DI 3 para 403 states as follows:-

“In order for the employee to be able to claim constructive dismissal, four conditions must be met:

1.	There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach - see Western Excavating (ECC) Ltd v Sharp 1978 IRLR 27.

2.	That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.

3.	He must leave in response to the breach and not for some other, unconnected reason.

4.	He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.”

128.	It is an implied term of every contract of employment that the employer must not without reasonable and proper cause conduct themselves in a manner calculated to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee – see Woods v WM Car Services (Peterborough) Ltd 1983 IRLR 413 & Malik v BCCI HL 1997 IRLR 462.  This is generally known as the implied duty of trust and confidence.

129.	If a supervisor acting within the scope of his authority acts in such a way towards the staff he supervises as to breach the implied duty of trust and confidence, the employer will be taken to have breached the contract entitling the employee to terminate the contract without notice – Hilton International Hotels (UK) Ltd v Protopapa 1990 IRLR 316.

130.	A breach of the implied duty of trust and confidence always amounts to a fundamental breach of contract which will entitle the employee to resign in response to that breach – Morrow v Safeway Stores plc 2002 IRLR 9.

131.	In determining whether there has been a breach of the implied term of trust and confidence which would justify the employee in resigning without notice, the principle known as the “last straw doctrine” may be relevant.  The principle is summarised in Harvey Div DI 3 para 481 as follows:-
“Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship. A number of cases illustrate this, eg Garner v Grange Furnishing Ltd 1977 IRLR 206; Woods v WM Car Services (Peterborough) Ltd1981 IRLR 347, [1981] ICR 666; and Lewis v Motorworld Garages Ltd1985 IRLR 465, [1986] ICR 157, CA, where Glidewell LJ expressly commented that:

	'... the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?'  However in Omilaju v Waltham Forest London Borough Council [2005] EWCA Civ 1493, [2005] ICR 481, CA the Court of Appeal held that where the alleged breach of the implied term of trust and confidence constituted a series of acts the essential ingredient of the final act was that it was an act in a series the cumulative effect of which was to amount to the breach. It followed that although the final act may not be blameworthy or unreasonable it had to contribute something to the breach even if relatively insignificant. As a result, if the final act did not contribute or add anything to the earlier series of acts it was not necessary to examine the earlier history”.
132.	The “last straw doctrine” has also been considered very recently in the case of GAB Robins (UK ) Limited v Triggs (EAT) (UKEAT/0111/07/RN).   In this case, the claimant had for some time complained of an excessive workload.  She also complained of bullying by a manager who had shouted down the phone at her.  By the end of September 2004, the claimant had had enough and she was signed off sick by her doctor.  The claimant never returned to work.  The claimant lodged a written grievance raising the issues of overwork and the alleged bullying by the manager.  The employer entirely failed to address the issue of overwork and, in respect of the allegation of bullying, the employer suggested an informal meeting between the claimant and the manager in order to try to resolve their differences.  On 15th February 2005, the claimant wrote to the employer confirming that she would find it very difficult to attend such a meeting and to return to work when the alleged bully had re-organised the management structure so as to bring the claimant directly under his control.  The claimant confirmed that she was resigning and bringing a claim of constructive dismissal.
133.	The Employment Tribunal which heard Ms Triggs’ claim concluded that trust and confidence finally broke down when the employer failed to carry out an adequate and proper investigation into the claimant’s grievances.  The Employment Tribunal decided that Ms Triggs had therefore been unfairly constructively dismissed.
134.	The decision of the Employment Tribunal was upheld by the Employment Appeal Tribunal (EAT).  The EAT reviewed the caselaw relating to the “last straw doctrine”, including the case of Omilaju referred to above.  The EAT analysed the situation in Ms Triggs’ case as follows:-

“(1)	the acts relied upon by the Claimant of overwork and bullying by (the manager) amounted cumulatively to a breach of the implied term as at 30 September 2004.

(2)	Thereafter, by continuing in the employment whilst off sick the Claimant affirmed the contract.

(3)	However, the Respondent’s failure ‘to carry out an adequate and proper investigation into her grievances’ ([Employment Tribunal’s] Reasons paragraph 53) contributed materially to the earlier acts relied on so as cumulatively to amount to a breach of the implied term.”
135.	If a tribunal is satisfied that an employee was constructively dismissed by the employer, it must then go on to consider the reason for the dismissal and whether the dismissal was, in all the circumstances, fair or unfair in accordance with article 130 of the Order – see Stephenson & Co (Oxford) Ltd v Austin [1990] ICR 609, EAT.
136.	By Article 130(1) of the Order, it is for the employer to show the reason for the dismissal and that it is a reason falling within para (2), that is a potentially fair reason for dismissal.  Where the employer fails to show a potentially fair reason for dismissal, the dismissal will be unfair.         

Conclusions

137.	The tribunal was required to determine whether the claimant had been constructively unfairly dismissed by the respondent.  As a preliminary point, the tribunal was satisfied that the statutory grievance procedure was fully complied with by the claimant in this case.  The claimant set out his initial complaint in writing to the respondent by his letter to Mr Harold Montgomery dated 26th July 2006 and he then furnished details of his complaint by his written grievance dated 18th August 2006.  In the circumstances, the tribunal was satisfied that the claimant was entitled to bring this claim before the tribunal.

138.	The tribunal then turned to consider whether the first condition referred to in Harvey (see para 127 above) was met in this case, that is whether there was a breach of contract by the respondent.

139.	The breach of contract relied on by the claimant in this case was the alleged bullying and harassment of him by his line manager Mr Paul Jackson.  At the hearing, the claimant continued to rely on the 20 complaints set out in his written grievance.  The tribunal’s findings of fact in relation to these individual complaints are set out at paras 24 to 107 above.  

140.	In respect of a number, but not all, of these allegations, the tribunal has found the claimant’s complaint to be made out.   The allegations which the tribunal has found to be substantiated, at least to some extent, are as follows:-

Allegations 1, 2, 4, 6, 10, 11, 16

141.	The tribunal therefore found as a fact that Mr Jackson had shouted at or been aggressive towards the claimant on a number of occasions and that his treatment of the claimant on other occasions had been insensitive or had demonstrated a lack of respect.

142.	The tribunal considered these matters in the round and concluded that, taken together, this conduct on the part of Mr Jackson amounted to a pattern of bullying type behaviour against the claimant.  Mr Jackson was the claimant’s line manager and the respondent did not contend that he was at any relevant time acting outside the scope of his authority.  The tribunal was satisfied that Mr Jackson was acting at all relevant times within the scope of his authority so that the respondent was responsible for the consequences of his conduct in relation to the claimant – see para 129 above.

143.	The tribunal then addressed the implied term of trust in confidence as set out at para 128 above and considered whether the respondent in this case had without reasonable and proper cause conducted itself in a manner calculated to destroy or seriously damage the relationship of mutual trust and confidence between the parties.

144.	Given the totality of the conduct referred to at para 140 above and the tribunal’s conclusion at para 141 above that there was in this case a pattern of bullying type and insensitive behaviour against the claimant, the tribunal was satisfied that this conduct went beyond mere unreasonable behaviour.  The tribunal was further satisfied that the totality of the conduct in question was calculated to seriously damage the relationship of mutual trust and confidence between the respondent and the claimant in this case.  Accordingly, the tribunal concluded that there was a breach of contract in this case, namely a breach of the implied term of mutual trust and confidence.  The relevant acts continued over a period from the early part of 2006 to July 2006.  The tribunal therefore determined that the first of the conditions referred to in Harvey is established in this case.

145.	The tribunal then considered whether this was the only conduct on the part of the respondent which was relevant in this case or whether anything which occurred later was relevant as being a “last staw”.

146.	In addressing this issue, the tribunal sought to bear in mind that 

“the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?”  - see para 131 above.
147.	It is clear in this case that the claimant’s resignation followed quickly upon him receiving confirmation of the rejection of his grievance appeal.  The tribunal therefore examined the conduct of the grievance investigation and the appeal stage to see whether this provided something in the nature of a “last straw” which would justify the claimant in resigning without notice. 
148.	The claimant made two criticisms of the grievance investigation carried out by Mr Carey.  Firstly, he was critical of alleged delay in that investigation.  The claimant referred to the period between the date when his detailed written grievance was lodged, that is 18th August 2006 and the date when Mr Carey confirmed the outcome of the investigation 29th November 2006, a period of some 15 weeks.  
149.	In considering this point, the tribunal noted that the commencement of the investigation was delayed because the respondent was in correspondence with the claimant’s then solicitors to determine the claimant’s fitness to participate in the investigation and/or any special measures required to facilitate his participation.  The claimant’s GP provided advice to the claimant’s then solicitors on 31st August 2006 and the content of this advice was then relayed to the respondent.  Mr Carey was appointed to conduct the investigation on 3rd September 2006 and once the investigation was under way, he conducted meetings/interviews with 10 witnesses including the claimant.  In the circumstances, the tribunal does not accept that there was unreasonable delay in Mr Carey’s investigation.  
150.	Secondly, the claimant criticised Mr Carey for “sitting on the fence” when he failed to make a determination in the case of those allegations where he found it was simply the claimant’s word against that of Mr Jackson.  The tribunal does not accept this criticism.  The tribunal appreciates that it is very difficult in the context of an internal investigation to reach a definitive conclusion in such situations.  Indeed, the tribunal has itself found it difficult to reach findings in relation to a number of the individual allegations in this case even though the tribunal arguably had access to more extensive evidence than was available to Mr Carey.  
151.	Generally, the tribunal was satisfied that the investigation conducted by Mr Carey was thorough and adequate in all the circumstances.  The tribunal makes no criticism of the investigation.
152.	It was then necessary for the tribunal to consider the appeal stage conducted by Mr McClelland.  The claimant himself confirmed on several occasions in the course of the hearing that he made no criticism of the conduct of this appeal except for the outcome.  As set out at para 115 above, in the course of the appeal, Mr McClelland interviewed a number of additional witnesses identified by the claimant who had not been interviewed by Mr Carey in the course of the original grievance investigation.  The appeal was completed within approximately 8 weeks and, particularly since this extended over the Christmas holiday period, the tribunal was satisfied that it was concluded without unreasonable delay.  The tribunal also considered that the appeal was conducted in a thorough manner and that Mr McClelland’s conclusions were reasonable on the basis of the evidence available to him.  Accordingly, the tribunal makes no criticism of the conduct of the appeal stage.
153.	The tribunal therefore determined that the respondent’s conduct of the entirety of the grievance investigation, including the appeal stage were proper, adequate and reasonable in all the circumstances and that there was no breach of the implied term of trust and confidence or any other breach of the claimant’s contract of employment arising out of the respondent’s response to the claimant’s grievance.
154.	Applying the principle set out in the Omilaju case (see para 131) above, the tribunal was of the view that neither the outcome of the appeal nor the conduct of the original grievance investigation or the appeal contributed anything to the breach of contract in this case however insignificant.  Accordingly, the tribunal did not accept that either the outcome of the appeal or the conduct of the original grievance investigation or the appeal amounted to a “last straw” which entitled the claimant to resign without notice.  In other words, the tribunal did not believe this to be a “last straw” case.  The relevant conduct of the employer in this case was limited to the bullying type behaviour on the part of Mr Jackson leading up to 26th July 2006, the claimant’s last day at work.  The tribunal has concluded that nothing which occurred thereafter was of relevance to the claimant’s claim of constructive dismissal.

155.	It was then necessary for the tribunal to consider whether the second of the conditions set out in Harvey was made out in this case, that is whether the breach was sufficiently important to justify the claimant in resigning.  Since the tribunal has found that the breach in this case was a breach of the implied duty of mutual trust and confidence, such a breach will always justify the employee in resigning in response to it – see para 130 above.  Accordingly, the second of the conditions referred to in Harvey is also established in this case.

156.	The tribunal then turned to consider whether the third condition was established in this case, that is whether the claimant resigned in response to the breach and not for some unconnected reason.  

157.	If the claimant had resigned around the time when he went on sick leave, the tribunal would have had little difficulty in concluding that he resigned in response to the relevant breach outlined above.  However, the claimant did not do so.  Rather the relevant sequence of events was as follows:-

		The claimant’s last day at work was 26th July 2006.  After that date, the claimant went on sick leave and never returned to work. The claimant did not resign until February 2007, having remained in the employment of the respondent on sick leave for in excess of 6 months.  During this time, the claimant’s grievance was investigated by the respondent and then his appeal was considered.  The claimant’s resignation came within a few days of him receiving the outcome of the appeal.

158.	The claimant in his evidence said that the decision to resign was a decision which he reached gradually, a “progressive decision”.  The tribunal considered the position at the date of resignation ie 9th February 2007.  This was some 6 months since the last relevant act of bullying.  More than a month before this, the claimant had applied for alternative work with Citigroup – see paras 121 and 122 above. His appointment with Citigroup was formally confirmed in writing within a few days of the date of his letter of resignation and he accepted in evidence that he may have received telephone confirmation of this appointment on the same day as his letter of resignation.  In these circumstances, the tribunal was not satisfied that the respondent’s breach of contract was the sole or even the principal reason for the claimant’s decision to resign.  Indeed, the tribunal believes it was likely the claimant had already decided he would never return to work for the respondent at the time when he went on sick leave and lodged his grievance in July 2006.

159.	Finally, the tribunal turned to consider the fourth of the conditions set out in Harvey and considered whether the claimant had waived the breach of contract by delaying his resignation.  The tribunal concluded that, having delayed his resignation for more than 6 months following the last act of bullying type behaviour on the part of his line manager, the claimant had indeed waived that breach.

160.	The tribunal therefore concluded that neither the third nor the fourth of the conditions referred to in Harvey and set out at para 127 above were established by the claimant in this case.

161.	In reviewing its conclusions, the tribunal found it helpful to compare the facts of this case to the similar factual matrix in the Triggs case as set out at para 132 above.  As in the Triggs case, the tribunal in this case found that there was a breach of the implied duty of trust and confidence in the nature of bullying type behaviour by the claimant’s manager.  Further, as with the claimant in Triggs, the claimant in this case remained absent from work on sick leave for a considerable period of time before his resignation.  However, there is a significant distinction between the two cases in that, in the Triggs case, the tribunal found that the employer failed to carry out an adequate and proper investigation into the claimant’s grievances.  In this case, the situation is quite the opposite as this tribunal has found that the respondent did respond properly and adequately to the claimant’s grievance and makes no criticism of the respondent’s handling of the grievance.  In the Triggs case, it was the employer’s handling of the grievance which led to the finding of constructive dismissal, but this factor was absent in this case.

162.	In summary, this is a case where the tribunal has found that there was a breach of the claimant’s contract of employment, namely breach of the implied duty of trust and confidence. The tribunal was further satisfied that such breach was sufficiently serious to justify the claimant in resigning without notice.  However, the tribunal concluded that this breach was waived as the claimant remained in the employment of the respondent for more than 6 months after the final relevant act.  The tribunal also concluded that there was nothing in this case which amounted to a “last straw” which would have revived the established breach of contract.  Accordingly, in light of the facts found, the tribunal was not satisfied that all the conditions required to establish constructive dismissal were fulfilled in this case.  The tribunal concluded that, in all the circumstances of this case, the claimant was not constructively dismissed by the respondent.

Respondent’s Application for costs

163.	At the conclusion of the hearing, Counsel for the respondent made an application for costs against the claimant.  Counsel had first raised this matter on the 6th day of the hearing when the tribunal and the claimant were put on notice of his intention to make an application for costs at the conclusion of the hearing.  The application was in respect of the respondent’s costs from the next day, the 7th day of the hearing, onwards.  

164.	In his closing submissions, Counsel for the respondent submitted that the claimant had acted vexatiously in bringing the claim and that the claimant had been unreasonable in his conduct of the proceedings.  In particular, Counsel for the respondent sought costs in respect of a wasted day of hearing (day 7) when the claimant had not been in a position to call any evidence.  Costs were sought at a daily rate of £500 per day.

165.	In response, the claimant denied that he had acted vexatiously in bringing the proceedings or unreasonably in his conduct of the proceedings.  He also pointed out that he had significantly reduced the number of witnesses called by him in order to limit the length of the hearing.  

166.	The tribunal considered the respondent’s application for costs in accordance with Rules 38 and 40 of the Industrial Tribunals Rules of Procedure.   Under the said Rules, the tribunal may make an order for costs if it considers it appropriate to do so where:-

“the paying party has in bringing the proceedings, or he……..has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived”.

167.	The tribunal considered whether it was appropriate to make an order for costs against the claimant in respect of the costs of each day of the hearing from day 7 onwards.  In view of the claimant’s decision to limit the number of witnesses called by him, the tribunal was not satisfied that the claimant’s conduct of the proceedings was vexatious or otherwise unreasonable.  In light of the tribunal’s conclusions as set out above, in particular, the conclusion that there was breach of the implied term of trust and confidence in this case,  the tribunal does not consider that the claimant has in bringing the proceedings acted vexatiously or otherwise unreasonably or that he was misconceived in bringing the proceedings.

168.	The tribunal then went on to consider specifically whether it was appropriate to make an order for costs in respect of the wasted day of hearing.  The tribunal was not unsympathetic to the points made by the claimant about the difficulties in time-tabling witnesses in a case such as this.  The claimant, not unreasonably, had anticipated that the cross-examination of him by the respondent’s counsel would last longer than ultimately it did.  Up until day 6 of the hearing, the claimant anticipated that he would not be required to call witnesses until the re-convened hearing in January 2008.  In the circumstances, the tribunal accepted the claimant’s argument that it proved difficult to arrange for witnesses to attend the tribunal on day 7 at such short notice.  Accordingly, whilst the tribunal could appreciate the frustration of the respondent and its counsel regarding the wasted day of hearing, the tribunal did not consider that the claimant had acted vexatiously or otherwise unreasonably in this regard.

169.	Accordingly, the tribunal concluded that none of the circumstances referred to in Rule 40 (3) applied in this case.  The tribunal makes no order for costs against the claimant.

Chairman:

Date and place of hearing:	24th, 25th, 26th, 27th September 2007, 12th, 13th, 14th November 2007, 7th, 8th, 9th January 2008, Belfast.

Date decision recorded in register and issued to parties: