THE INDUSTRIAL TRIBUNALS

CASE REF:  01427/08

CLAIMANT:			John Christopher Paul O’Grady

RESPONDENT:		Castle Street Inns Ltd T/A Tony Roma’s Restaurant 

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

Constitution of Tribunal:
Chairman:		Mr N Kelly
Members:		Dr Mercer
			Mr Hampton

Appearances:
The claimant appeared in person.
The respondent was represented by Mr Sheridan of Peninsula Business Services Ltd.

THE ISSUE

(1)	The issue for the tribunal to determine was whether the claimant had been unfairly dismissed by the respondent in contravention of Article 126 of the Employment Rights (Northern Ireland) Order 1996.

RELEVANT FACTS

(2)	In a claim lodged on 6 October 2008, the claimant alleged that he had been unfairly dismissed by the respondent on 16 August 2008.  The respondent did not receive a copy of this claim and only found out about its existence during a telephone conversation with an official in the Labour Relations Agency.

(3)	On 16 January 2009, a late response was lodged indicating that the claim form which had been provided by the tribunal had been incomplete.  The respondent reserved its position until the complete claim form was received.  Despite that reservation, the response did state at paragraph 3.5 that the respondent agreed that the claimant had been dismissed.

(4)	A default judgement had already been issued on the same day, 16 January 2009, because a response had not, at that point, been entered by the respondent.  The default judgement was set aside at a hearing on 9 March 2009.

(5)	At the start of the substantive hearing on 18 March 2009, Mr Sheridan applied on behalf of the respondent to amend the response.  He explained that full instructions had been taken after the default judgement had been set aside on 9 March 2009 and that the respondent now wished to argue that the claimant had not been dismissed at all.  He stated that he would produce evidence that a redundancy process had been commenced and that a first “at risk” letter had issued to the claimant.  The claimant had left the meeting at which his potential redundancy was being discussed and did not subsequently return to work.  Mr Sheridan stated that the evidence would indicate that the claimant had in fact resigned.  Given the unusual history of the proceedings in this case which lead to substantial time pressures on the respondent, with the default judgement only being set aside some nine days before the present hearing, the tribunal was satisfied, having, considered the nature of the proposed amendment and having balanced the possibility of hardship or injustice to either party, that an amendment was appropriate (see Selkent Bus Co Ltd v Moore 1996 ICR 836).

(6)	The tribunal heard evidence from the claimant, and from his partner Ms Karen Hinshelwood.  The witnesses for the respondent were Mrs Patsy Hughes, the respondent’s General Manager and Mr Sean Toner, the respondent’s Assistant General Manager.

(7)	The respondent owns and operates a number of licensed restaurants.  It is part of a group of companies known as the Hughes Group.  The claimant was first employed by the respondent on 2 October 2006.  He was initially employed as a Bar Manager and worked at Tony Roma’s restaurant in University Road, Belfast.  Shortly after his appointment, Mr Sean Toner returned to work at that restaurant as the respondent’s Assistant General Manager.  Mrs Hughes, the General Manager was then required by her Head Office to reduce the number of other managers at the restaurant.  The claimant agreed to be re-graded as a Bar Supervisor ie a step lower than Bar Manager.  It was not in dispute that Mrs Hughes ensured that his net earnings remained the same ie £300 net per week despite the regrading.  As far as the respondents Head Office were concerned, his pay had been reduced to that of a Bar Supervisor.  

(8)	The bar sales at the restaurant fell substantially during 2008.  The sales between 4 June 2007 and 9 September 2007 were £117,080.04.  The sales between 2 June 2008 and 7 September 2008 were £94,398.06.  There had been a reduction of £22,681.98.  Mrs Hughes decided that staffing at the restaurant had to be reduced to maintain profitability.  

(9)	Mrs Hughes concluded that the appropriate action to be taken was to consider moving the claimant to another licensed restaurant within Belfast which was owned by the respondent.  She telephoned the restaurant on Sunday 14 September when the claimant was working in the bar area and spoke to him.  The tribunal heard two different versions of this telephone conversation.  Mrs Hughes gave evidence that she didn’t mention redundancy or a possible relocation during this conversation because she did not want to discuss such a sensitive issue over the telephone.  She simply wanted to arrange a meeting at which the issue could be discussed and the matter taken forward.  She stated that the claimant became quite irate during the telephone conversation and had wanted her to explain the purpose of the meeting but she had refused to explain further during that conversation.  The claimant in contrast stated that Mrs Hughes had in the course of that telephone conversation offered him a move to the Sitting Room licensed restaurant which is situated in Castle Street.  He stated in evidence that he had refused to consider such a move but he had not explained his reasons to Mrs Hughes.  The tribunal prefers Mrs Hughes’ version of events in relation to this telephone conversation.  Her evidence was clear and convincing.  Furthermore, if a potential move to the Sitting Room had in fact been discussed during that telephone conversation, it is difficult to see why the claimant, given his refusal to contemplate moving to that restaurant, would have participated in a subsequent meeting on Wednesday 17 September.

(10)	Mrs Hughes wrote to the claimant on 16 September.  That letter was posted to the claimant who stated in evidence that he did not receive it by post either on 17 September or later. He was however given a copy of that letter on 17 September.  That letter stated:-

	“Unfortunately due to the current economical climate and our 25% reduction in our sales since same period last annum, it is with great regret that I must inform you that your position held with us at Tony Roma’s as a duty manager has become redundant.  On the other hand, I am willing to offer you another supervisory position within the Hughes Group and a reduced salary.  I hereby would like to have the opportunity to discuss this with you at your earliest convenience.”

	On Wednesday 17 September, the claimant was working in Tony Roma’s.  Mrs Hughes came into the restaurant with Mr Toner and sat with the claimant in a booth.  Mr Emmanuel Hughes was also in the building.  Mr Hughes was not an employee of the respondent although he was involved in the Hughes Group and was a part-owner of the respondent.  It is not in dispute that the reduction in bar takings was discussed during that meeting and also that a potential move to the Sitting Room restaurant was suggested by Mrs Hughes.  Mrs Hughes maintained in evidence that the move to the Sitting Room was only intended to be a short term measure and that she had expected or hoped that bar takings would pick up around Christmas time.  The claimant maintained that it had not been suggested during the meeting that the move was anything other than permanent.  Whether the suggested move was permanent or temporary, it is clear that the claimant rejected it out of hand and that he did not then explain his reasons for so doing..

(11)	The claimant stated that when he had refused to move to the Sitting Room restaurant, Mr Hughes came over to the booth, put his two hands on the table and leaned over before stating:-

		“It works two ways – either you go to the Sitting Room on a reduced wage or there is no work for you.”

	The claimant stated that he felt intimidated and left the meeting.  Mrs Hughes and Mr Toner denied that this incident had happened.  

(12)	The tribunal notes that Mrs Hughes had gone out of her way to ensure that the claimant’s wages had not been reduced when he had been regraded from Bar Manager to a Bar Supervisor on instructions from Head Office in 2007.  She had gone so far as to conceal from her Head Office the fact that his wages had not been reduced.  The tribunal therefore considers it unlikely that she had any wish to treat him unfairly or to allow him to be intimidated.  The tribunal has to resolve the conflict in evidence in relation to this crucial allegation about Mr Hughes.  It is not the sort of incident that could have been easily forgotten by anyone present and therefore the probability is that either the claimant or both Mr Toner and Mrs Hughes are not telling the truth in relation to this matter.  

(13)	If the claimant’s evidence is accurate, what Mr Hughes actually said was not significantly different from what had been said to the claimant by Mrs Hughes.  In other words there was a potential redundancy situation and that if the claimant did not accept the move to an alternative post at a reduced salary, he would be selected for redundancy.  The important issue is therefore not what was said but how it was said.  The tribunal has to determine whether the claimant had been intimidated by Mr Hughes to such an extent that he was entitled to regard his contract of employment as terminated, to leave the meeting at that point and not to return to work.  

(14)	There is again a conflict in evidence as to what happened next.  The claimant stated in evidence that he met Mr Toner on Friday 19 September to collect his wages.  He stated that Mr Toner came over to where the claimant was sitting in his car and gave him a copy of the letter dated 16 September 2008 and a further letter dated 17 September 2008.  Mr Toner in contrast stated in evidence that that meeting occurred on the evening of Wednesday 17 September: i.e. on the same day as the meeting in the restaurant.  Not a great deal turns on the actual timing of the meeting between the claimant and Mr Toner.  However, the tribunal does not see any reason why the claimant, in the circumstances, would have waited another two days before collecting whatever wages were due to him or why the letter dated 17 September 2008 would not simply have been either posted to him or handed to him on 17 September.  On balance, the Tribunal prefers the evidence of Mr Toner in this respect.

(15)	In any event the further letter dated 17 September 2008 stated:-

	“Further to our meeting at Tony Roma’s with yourself, Sean Toner and myself, it is very regrettable that you feel that the alternative position which I offered you is not suitable for you.  I really hoped that you would have stayed working for the company until such times as business may pick up again.  Hopefully you will rethink this offer and contact me in writing or by telephone within the next seven days to arrange another appointment.”

	That letter was signed by Mrs Hughes and witnessed by Mr Toner.

(16)	The claimant stated that he had read that letter when he had got home from the meeting with Mr Toner and that he had made no further contact with either Mr Toner or Mrs Hughes.

(17)	The tribunal notes that the claimant’s evidence was in some respects inconsistent.  For example, when he was asked in cross-examination why he was not prepared to work in the Sitting Room restaurant his reply was that he had “too many enemies in town”.  When the matter was raised by the tribunal at a later stage in the proceedings when he was making his final submissions, he stated that he was concerned about one individual ie his partner’s former husband who lived in Peter’s Hill.

	When he was describing what Mr Hughes had allegedly said to him during the meeting on 17 September, he stated Mr Hughes had said “you have to go to the Sitting Room on a reduced wage or there was no job for me in Tony Roma’s”.  In the claim form, the wording is slightly different in that the statement there is that the claimant either “went to work in one of their other bars on a reduced wage”.  When it was put to him that he had failed to raise a grievance about the intimidation which he stated he felt from Mr Hughes, he stated that he hadn’t done so because any such grievance would have been ignored as complaints had been ignored in the past.  No evidence was produced to back up this claim.

	He stated in evidence that he had never seen the Staff Handbook but when it was put to him in cross examination, he accepted that he had signed an acknowledgment that he had in fact read the Handbook.

(18)	The tribunal therefore, in assessing the credibility of the witnesses, prefers the evidence of Mrs Hughes and Mr Toner and concludes on the balance of probabilities that Mr Hughes did not intervene in the meeting on 17 September and that he did not intimidate the claimant.  The tribunal concludes that the claimant left the meeting because he was not prepared to contemplate a move to the Sitting Room restaurant and lost his temper.

(19)	The tribunal concludes that the redundancy process had not advanced to the point at which the claimant’s employment had been terminated.  His claim of unfair dismissal, is in reality, a claim of constructive unfair dismissal arising from what he alleges took place during the meeting on 17 September.

RELEVANT LAW

(20)	Paragraph 9 of Schedule 1 to the Employment (Northern Ireland) Order 2003 sets out the modified grievance procedure which must be followed by an employee who alleges that he has been constructively dismissed.  The employee must set out in writing the grievance and the basis for it and send a copy of that to the respondent.  Under Article 19 of the Order, an employee should not present a complaint to an Industrial Tribunal in relation to a relevant jurisdiction, including constructive unfair dismissal, if the requirements of paragraph 9 of Schedule 1 have not been met.

THE LAW

(21)	At D403 of Harvey of Industrial Relations and Employment Law, the basis for a claim of constructive dismissal is described 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 and anticipatory breach.

(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.  Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(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 employers breach otherwise he may be deemed to have waived the breach and agreed to vary the contract.”

DECISION

(22)	The tribunal concludes that the claimant resigned from his position as Bar Supervisor before any decision to terminate his employment had been finalised or put into effect.  To pursue a claim of constructive unfair dismissal, a statutory grievance would have had to have been lodged by the claimant at least 28 days before the date on which the tribunal application was lodged.  No such grievance was sent to the respondent and there is no evidence of any factor which would have exempted the claimant from observing that requirement.

(23)	Even if a statutory grievance had been lodged and therefore if the tribunal had jurisdiction to determine a claim of constructive unfair dismissal in this case, the tribunal would have determined that the claimant had over reacted to what was said to him by Mrs Hughes at the meeting on 17 September and that he had not been entitled to regard his contract of employment as having been terminated.  His claim in those circumstances would have been dismissed.

Chairman:

Date and place of hearing:	18 March 2009, Belfast.

Date decision recorded in register and issued to parties: