THE INDUSTRIAL TRIBUNALS

CASE REF:    1559/10 
2174/10 

CLAIMANT:	Patrick Burns 

RESPONDENT:	Department of Social Development
	(Child Maintenance and Enforcement Division)

DECISION

It is the unanimous decision of the tribunal that the claimant was constructively dismissed.
At the request of the parties this Decision is given in respect of liability only.

Constitution of Tribunal:

Chairman:	Ms A Crooke

Members:	Mr J E Martin
	Miss M E Bailey

Appearances:

The claimant was represented by Mr Neil Richards, Barrister-at-Law, instructed by Higgins Holywood Deasley Solicitors.

The respondent was represented by Mr Michael Potter, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

SOURCES OF EVIDENCE

1.	The claimant gave evidence on his own behalf.

2.	On behalf of the respondent the following gave evidence:-

Mr Gar McAtamney;
Mr John Millar;
Ms Linda McKenna;
Ms Vera Ellis; and
Mr Paul McAnea.

3.	Additionally, there was an agreed bundle of documents before the tribunal.

THE CLAIM AND THE DEFENCE

4.	The claimant said that he had been unfairly constructively dismissed and that he had suffered a breach of contract and an unauthorised deduction of wages.  During the course of the hearing the unpaid holiday pay claim was settled and was withdrawn by the claimant.  It is therefore dismissed.

5.	The respondent denied these claims.

THE RELEVANT LAW

6.	The section of the Employment Rights (NI) Order 1996 which deals with constructive dismissal is Article 127(1)(c) which says:-

		“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.”

7.	In terms of case law the tribunal had reference to Western Excavating (ECC) Limited  v  Sharp [1978] IRLR 27.

8.	In order for an 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.

	(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 employer’s breach otherwise he may be deemed to have waived the breach and agreed to vary the contract.

BACKGROUND

(A short summary of the grievances brought by the claimant.)

9.	This case is about three grievances brought by the claimant in respect of the way a vacant EO1 position was filled by the respondent.  This was caused by Ms Vera Ellis, the existing EO1 acting up as Staff Officer.

First Grievance

(Dated 7 December 2007)

10.	A substantive EO1 returning from leave was to be placed in the vacant EO1 post of Ms Vera Ellis.  The claimant contended this should have been made available as a temporary promotion opportunity.

	Result

	This grievance was fully upheld.

Second Grievance

(Dated 19 March 2008)

11.	The post was filled by way of deputisation and not temporary promotion as anticipated by the claimant.

	Result

	This grievance was fully upheld.

Third Grievance

(Dated 9 October 2008)

12.	About May 2008 the claimant was temporarily promoted to the EO1 post but had difficulties in the position.  Mr Gary Quail eventually filled the EO1 position to which the claimant had been temporarily promoted.

	Result

	This grievance was partially upheld.

FINDINGS OF FACT

13.	The claimant was employed in the respondent as an Executive Officer Grade 2 in line of business 2.

14.	His period of employment was from 24 January 2000 to 12 March 2010.

15.	Ms Alex Gordon (an EO1) returned to work after a period of leave for personal reasons.  She had to be found a place in the respondent and was put into Ms Vera Ellis’ command as an EO1.

16.	The claimant raised a grievance about this in or around 7 to 15 December 2007.  He alleged the correct procedures were not followed and this vacant post should have provided a career development opportunity for temporary promotion to Executive Officer Grade 1 of the Executive Officers Grade 2 (of which he was one).

17.	Mr John Millar, the Grade 7 Officer, was tasked to deal with this grievance and met with the claimant and the claimant’s Deputy Principal, Mr Gar McAtamney, on 13 January 2008.  Mr Millar met with Ms Vera Ellis, the temporary Staff Officer, on 13 December 2007.  In or around 22 February 2008 Mr Millar ruled in the claimant’s favour on the first grievance.  He held that the original placement of the returning EO1, Ms Alex Gordon, in the claimant’s team was not correct.  He gave a commitment that that decision would be reversed although he considered that the post would be a short-term designation.

18.	Ms Vera Ellis (the temporary Staff Officer) considered that as it was a short-term post then the fairest way forward was to give each of the three EO2s (including the claimant) a chance to act-up in the post.  Mr David McQuillan and the claimant both enjoyed this opportunity.  The third EO2 Nicola Kelly did not.

19.	In or around 19 March 2008 the claimant raised a second grievance, this time with Ms Catherine McCallum, saying that he was dissatisfied that the post was being handled as a deputisation rather than as a temporary promotion.  Ms Catherine McCallum ruled that the post was to be converted to a temporary promotion in or around 30 April 2008.  In short, she upheld the claimant’s second grievance.

20.	It was evident to the tribunal from the evidence given on behalf of the respondent that there was considerable confusion about recruitment/promotion procedures, policies and practices.  The claimant considered that the procedure in the Northern Ireland Civil Service Staff Handbook applied.  The respondent did not consider that this applied to the claimant.  Mr John Millar, the Grade 7 Officer, said that the CMED Staff Development Guide applied as it only became obsolete in 2009.  While the claimant did not accept this view, he was not able to counter it with any objective evidence and the tribunal accepts that the Staff Development Guide applied to the filling of this position.  Under this Guide a post can be deputised for up to 6 months.  After that, it is supposed to become a temporary promotion.

21.	Mr John Millar, the Grade 7 Officer, was directed to write to the claimant on 6 May 2008 and apologise for the way in which the matter had been handled.  Next, after a discussion between Mr Gar McAtamney and Ms Vera Ellis, they decided to allocate the EO1 vacancy by way of a draw of names from a hat.  This happened and the claimant’s name was drawn.  He therefore filled the EO1 post.

22.	The claimant found some difficulty with the work as a temporarily promoted EO1.  He alleged that Ms Vera Ellis, was putting a great deal of pressure on him and being negative and undermining her staff.  The claimant considered that he was not supported, ie, he did not have the requirements of the job explained to him.  He was given extra work, ie, he was asked to do telephone coaching of the staff in how to answer calls and deal with awkward customers.  He was being asked to take on a finance checking role.  The tribunal accepted the evidence that the respondent considered the claimant to be fully capable of doing the finance checking and coaching.  The claimant did not consider that he was able to do this work, although he was given a training course.  He was expected to take on two finance cases a month.  The telephony job was not an addition to his workload but rather something upon which he was to be deployed instead of his usual work.  The claimant also had difficulty with a member of staff whom he alleged was not capable of carrying out her job.

23.	Issues arose about disciplining staff.  The claimant felt that he was being unfairly asked to discipline staff.  This involved two instances.  The first was the issue of smoking.  The claimant was asked to investigate this smoking and it turned out to be the permissible lunchtime smoking, therefore, no disciplinary action was needed.  Secondly, Mr Gar McAtamney found a document on the photocopier and the claimant was asked once again to investigate to whom this document related.  The claimant required to be told under which procedure he was operating.  As there was nothing to identify to whom the document belonged, nothing further came of this incident.

	In or around 9 October 2008 the claimant was moved to the Sensitive Case Team and in or around the same time raised his third grievance.  The claimant was very concerned about being moved to this area of work as he himself had a case and was afraid that his fellow employees would know his personal business.  Safeguards were put in place to protect the integrity of the paper file and a security audit was carried out to see who was accessing the computer file.  The claimant accessed it by accident one day, but his explanation was accepted.  It is important to note that the claimant himself said that his workload was light when he went to the Sensitive Case Team.  On the basis of the respondent’s evidence we do not find the claimant was overburdened or unsupported in work.

	As part of the claimant’s difficulties with Ms Vera Ellis he contended that she had given him an unfair staff assessment.  He said that she failed to take account of a piece of work he had done to do with the storing of documents.  Ms Ellis said that he had not told her about this work because if he had told her she would have had to investigate it.  Furthermore, the claimant received a score from her which showed that he could carry out the duties of the EO1.  As the claimant did not protest further in relation to this matter, we have no objective evidence to suggest that Ms Ellis was told about this work, and had anything against the claimant which would have caused her to deliberately ignore this issue.

24.	The claimant made it clear he would not stay in the EO1 post.  The claimant was also told that a former CMED Officer, Mr Gary Quail, was going to be coming back to fill his EO1 post.  The background to this was that Mr Gar McAtamney had allowed four EO1s in his command to transfer to other postings.  (Mr McAtamney had asked Ms Vera Ellis if she knew of any persons who would be interested in coming back to CMED.  She said that she knew of Mr Gary Quail and that he was a person who had the appropriate skills set.  It was agreed that she would speak to him.  Ms Ellis did speak to Mr Quail and he expressed an interest in returning to CMED.  However, he was told to go through the appropriate procedures and it transpired that on applying in response to a personnel “write around” Mr Quail was appointed to CMED).  The claimant went to Mr John Millar and asked him about this matter.  Mr Millar said that Mr Quail was not coming into the claimant’s posting because he did not want any more grievances.  Initially, Mr Quail, who was a substantive EO1 was placed in CMED’s Line of Business 1.  However, an opportunity arose for officers to deputise into Ms Vera Ellis’ Staff Officer post.  Mr Quail applied and was successful.

25.	After Mr Quail’s period of acting-up into Ms Vera Ellis’ Staff Officer role, he was put into the claimant’s EO1 position as a substantive EO1 in 28 February 2009, as the claimant had ceased to act as EO1.  We have no doubt that this reversal of Mr Millar’s assurance that Mr Gary Quail was not coming into the claimant’s EO1 post fuelled the claimant’s sense of grievance and confirmed his view that his management were against him.

26.	The claimant went off on sick leave on 22 June 2009 caused by work stress.  The claimant never returned to work.  The claimant was contacted monthly by Mr Gary Quail and Ms Caroline Henderson jointly.  They would meet him to ask how he was.  Caroline Henderson was an EO1 who had been in charge of the Omagh Branch which had relocated to Belfast.

27.	In August 2009 the Attendance Management Unit contacted the claimant commencing the long-term sickness absence process.  This resulted in the claimant receiving a written warning.

28.	There were sundry attempts to get the claimant back to work and the most salient was from Mr John Millar who offered the claimant a position in another command.  However, the claimant pointed out that as he had now received the written warning, he was not able to be transferred.  During the claimant’s absence, he was also referred to the Occupational Health Service and contacted by the Welfare Support Service.

29.	All the while an unresolved issue for the claimant was that his third grievance had not been resolved.  He made it clear that he did not consider he could come back to work until that had been dealt with.  The tribunal has constructed a timeline concerning how the matter was progressed as follows:-

	Date
	Action
	
	9 October 2008	Third grievance lodged.
	
	14 October 2008	Grievance referred to HR Connect.
	
	24 October 2008	Instruction from the DSD to HR Connect to proceed.
	
	December 2008 to April 2009	Interviews scheduled.
	
	10 June 2009	Final interview notes and Philip Gallagher signed off on the investigation.
	
	26 August 2009	The long-term sickness process was activated as the claimant’s sick leave commenced on 22 June 2009.
	
	11 December 2009	HR Connect contacted the claimant.
	
	14 January 2010	HR Connect contacted the claimant.
	
	15 January 2010	Mr Paul McAnea contacted the claimant.
	
	5 February 2010	The claimant met Mr McAnea.
	
	12 March 2010	Mr McAnea sent the grievance outcome in writing to the claimant.

30.	The claimant resigned by a letter received by the respondent on 23 March 2010.

CONCLUSIONS

31.	Is the claimant entitled to consider that he was constructively dismissed?

	Was there a breach of his contract of employment?

	Whilst the claimant had many and varied complaints about the way in which he was treated, the tribunal was only able to find that the length of time that it took to resolve his third grievance was a fundamental breach of his contract of employment.  There was confusion over the policies and procedures to be used in filling the EO1 post and it is notable that the first two grievances raised by the claimant were upheld even though the respondent considered that the filling of the post was to be carried out in accordance with the Staff Development Guide, and not as the claimant contended the Northern Ireland Civil Service Handbook.

32.	We do not consider that the claimant was unsupported in the work environment as a temporarily promoted EO1.  It was not contested that the claimant spent some time being taught the job by Ms Vera Ellis and there were e-mails and precedents which were given to the claimant to follow.  We do not consider that he was overburdened with work, especially as he said the workload was light in the Sensitive Case Team.

33.	The tribunal was however concerned at the length of time it took the respondent to resolve the third grievance.  We are setting out two paragraphs from the grievance procedure as follows:-

		“1.2	A grievance is any complaint, concern, or problem which a staff member has in relation to an employment-related matter.  All grievances, whether informal or formal, will be heard sympathetically, given proper consideration and dealt with within in a reasonable timescale, (normally 28 days) in a manner fully compliant with the Employment (Northern Ireland) Order 2003 Dispute Resolution (Regulations) (Northern Ireland) 2004.

		5.2	The periods contained in this procedure are the maximum which would normally be used in the various stages.  If exceptional circumstances arise which prevent these periods being used, extensions to the normal periods may be arranged.  Extensions to the time periods below must not cause unreasonable delay in the process and should be agreed with yourself and/or your representative.”

34.	There was no evidence before the tribunal that there was any correspondence or contact with the claimant seeking his approval to an extension of time within which to resolve his grievance.  The third grievance process took from 9 October 2008 till mid-March 2010 to resolve.  While there may have been operational issues which delayed the resolution, the tribunal does not consider that this is a time period that can be in any way justified.  The situation was not helped by the claimant’s written warning for absence being sent by the same person who referred him to Occupational Health.  It is clear that the claimant was passed from one agency to another during the grievance.  For example he was required to meet the Stress Enquiry team but as soon as they heard he had brought a grievance they refused to proceed any further.  The claimant was left feeling nobody was trying to do anything for him and begging for his grievance to be resolved.  This undoubtedly made the claimant feel angry and insulted.  While we accept that the claimant also had issues with the rulings on the third grievance, we consider that the difficulty for the respondent lies principally in the length of time it took to reach the ruling stage, against the background of Mr John Millar going back on the assurance he gave to the claimant about Mr Gary Quail (which we do not regard in itself as a fundamental breach) and the issue of the written warning which definitely exacerbated the situation.  The tribunal considers that taking such a length of time to resolve a grievance was a breach of the claimant’s contract of employment and a fundamental one.  In reaching this decision we have had regard to the case of W A Goold (Pearmak) Ltd  v  McConnell [1995] IRLR 516.  In this case, the Employment Appeal Tribunal said that obtaining prompt redress of grievances was of fundamental importance.  As such we consider that the claimant was entitled to leave in response to the breach.  We also consider that the claimant did not delay in so doing because he resigned a matter of days after he received the outcome of the grievance.

Chairman:

Date and place of hearing:	23-24 February 2011, 1 March 2011 and 4 March 2011, Belfast.

Date decision recorded in register and issued to parties: