THE INDUSTRIAL TRIBUNALS

CASE REF:	1095/15

CLAIMANT:			Eoghan Niall Rainey

RESPONDENT:		Cranmore Recruitment

DECISION 
The unanimous decision of the tribunal is that the claimant was constructively dismissed by the respondent, was not provided with an initial statement of particulars of employment by the respondent, is owed an amount for outstanding commission, and is entitled to the amounts set out in paragraph 7(4) of the decision, totalling £1836.79.

Constitution of Tribunal:
Employment Judge:		Employment Judge Crothers	
Members:				Mr J Law
					Ms G Ferguson

Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Mark Flynn, Director.

THE CLAIM

1.	As appears from the Case Management Record of Proceedings dated 12 August 2015, a copy of which is annexed to this decision, the claimant claimed that he had been constructively dismissed by the respondent, that the respondent had failed to provide him with a statement of initial employment particulars, and that he was owed £900.00 (gross) for outstanding commission as well as a sum of £180.00 retained by the respondent.  The claimant withdrew his holiday pay claim at the Case Management Discussion.  During the hearing, the respondent agreed to pay the claimant £180.00 and therefore the claim for that amount is not part of this decision.  For the removal of doubt, the unfair constructive dismissal case was so registered by the tribunal following the presentation of the claimant’s claim form on 11 June 2015.  Following a series of emails from both sides on the morning of 23 September 2015 the tribunal decided to address the additional issues raised therein at 2.45 pm on the same day.  The parties who were already aware of the possibility of the tribunal resuming on 23 September 2015, were notified accordingly.  However the respondent did not appear and was not represented.  The email to Mark Flynn’s email address notifying him of the resumed hearing at 2.45 pm was read almost immediately after transmission.  The tribunal nevertheless sought to clarify the issues raised in Mark Flynn’s emails with the claimant who gave further evidence under oath.

THE ISSUES

2.	The issues, as set out in the Case Management Discussion record dated 12 August 2015, were as follows:-

	(1)	Was the claimant constructively dismissed?

	(2)	Did the respondent fail to provide the claimant with an initial statement of employment particulars?

	(3)	Did the respondent breach the claimant’s contract of employment?

SOURCES OF EVIDENCE

3.	The tribunal heard evidence from the claimant and from Mark Flynn, Director with the respondent.  It also considered relevant documentation placed before it including a Schedule of Loss which was agreed, subject to liability.

FINDINGS OF FACT

4.	Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i)	In January 2015 the claimant (who was employed by the respondent from 7 October 2013 until his resignation became effective on 13 March 2015), had been offered a job with Black Fox Solutions.  He produced evidence to the tribunal that he reflected on the offer and rejected it by email to 
Max Mackin of Black Fox Solutions dated 20 January 2015.  
	
(ii)	The tribunal considered and assessed the claimant’s evidence to be more credible than that provided by Mark Flynn on behalf of the respondent.  It is also satisfied that where a conflict of evidence occurred, the claimant’s evidence was to be preferred.  Mark Flynn adopted a dismissive attitude towards the claimant and the case he was making and appeared to reflect the same attitude on occasions to the tribunal in the course of its endeavour to discharge its overriding objective.  Mark Flynn was also reluctant to cross-examine the claimant until after the tribunal had explained to him the consequences of not doing so.

(iii)	On 4 March 2015 Mark Flynn requested the claimant to accompany him to the Botanic Inn after work to watch a football match.  He suggested that the claimant should leave his personal belongings, including his laptop, house keys and bag in the office, to be collected later.  The tribunal carefully considered the evidence in relation to what took place in the Botanic Inn.  It appears that following a conversation, the contents of which are seriously disputed, Mark Flynn without warning attacked the claimant by gripping and twisting his right arm behind his back.  The claimant found this to be very distressing.  He was then pushed against the bar.  The episode lasted for several seconds.  Mark Flynn ceased his behaviour once a bar woman requested him to calm down.  He then let the claimant go and proceeded to shout at him aggressively.  Mark Flynn was no more than one or two inches from the claimant’s face.  The claimant pushed him away and described himself as being extremely stressed.  He had previously sustained an injury to his left arm.  The tribunal was satisfied that other members of staff and a few people in the bar area also requested Mark Flynn to calm down.  The claimant then told Mark Flynn that he was leaving the bar.  Mark Flynn told him not to come into work the next morning.  The tribunal is satisfied that the general nature of the conversation preceding the attack upon the claimant is accurately reflected in the claimant’s letter of resignation reproduced below.

(iv)	Following the episode in the Botanic Inn, the claimant went back to his office and, at 01.26 am on 5 March 2015, sent his resignation by email in the following terms:-

			“Dear Mark Flynn

		I never thought I would have to write this message.  It really is an unfortunate scenario where I have to ask two members of staff of the Botanic Inn to record and file an instance where you violently attacked me (gripped and twisted my arm behind my back) for no apparent reason other than the reason you provided that you didn’t agree with my point of view and I “spoke for too long”.  As a result I’m left with no other option but to hand my formal notice to end employment with Cranmore Recruitment.  As it is the 05/03/2014, my employment will cease on the 12/03/2015 as in terms of a standard law contract.

	I recall the instance when you threw an object at me last year when you thought “I was too loud when you were speaking on the phone”.  I assumed you were having a bad day and it was a one off occurrence.  I accepted your apology then but it seems it was only a start.  I absolutely accept constructive criticism but it is clear to see when you were emotionally abusive (as Josh and Adriana would attest to) that it was only the start of it.  I thank you for giving me my [a] start in recruitment but I cannot carry on in the manner which you think is acceptable.  I will work for the remainder and benefit of Cranmore Recruitment until mentioned (12/3/15).  The deals which have been completed this month I will not request bonus (etc Drew McCann) as gesture of good will.  The only pay that is due is 2 weeks employment of March plus Kevin Cullen’s (Mallaghan - £540 commission) as agreed.  Please see below screenshot and attached file from salesforce.

I will never understand why you acted in the way you did but I wish Cranmore Recruitment all the best in the future.

Eoghan Rainey

Type	Placement		Assigned To	Eoghan Rainey

Related to Mallaghan	Due Date 	28/01/2015

Name	Kevin Cullen

Subject	40K @ 13.5% Mallaghan.  Start date 9th of March.

Comments

Additional Information

Status	Completed				Phone 028 82 244131

Priority	Normal				Email  kcullen@gmail.com

System Information

Created by 	Eoghan Rainey, 28/01/2015  16:05”

(v)	Mark Flynn requested the claimant on two occasions to reconsider his resignation.  However, following the incident in the Botanic Inn, which the claimant described as the “last straw”, he felt that he could no longer trust Mark Flynn and he told him so at a meeting in the Board Room on Friday 5 March 2015.  He also referred him to his unpredictable and irrational behaviour.  The tribunal was satisfied that the claimant’s trust and confidence in his employer had dissipated after the incident in the Botanic Inn.  He was also afraid that if he stayed in the respondent’s employment, Mark Flynn might ruin his prospects of future employment and in effect render him unemployable.

(vi)	The tribunal accepts that it was only after his resignation that the claimant reverted to the Black Fox Solutions in pursuit of a job.  He was informed that a job was available in Black Fox Solutions sister company, Reactive Recruitment.  

(vii)	The claimant’s resignation became effective on 13 March 2015.  It was agreed that his gross weekly wage was £346.15 (£244.79 net).  Furthermore it was agreed by the parties that the gross figure of £900.00 claimed in respect of outstanding commission equates to £634.40 net.  It was not disputed that the respondent had failed to provide the claimant with an initial statement of employment particulars required by Article 33 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  The claimant obtained his other job within a short time after his resignation at a higher salary.  His claim for future loss is therefore limited to the period between Friday 13 March 2015, being his last day of employment with the respondent, and the commencement of his new job with Reactive Recruitment from 23 April 2015 (one week’s net salary amounting to £244.79).  Under Article 27 of the Employment (Northern Ireland) Order 2003 a remedy is afforded to a claimant for a breach of Article 33 of the 1996 Order when either the tribunal finds in favour of the claimant but makes no award to him in respect of the claim to which the proceedings relate (eg constructive dismissal and breach of contract) or when an award is made to the claimant.

(viii)	It is also clear to the tribunal that Mark Flynn had displayed aggressive, insulting, unpredictable and irrational behaviour towards the claimant in the course of this employment with the respondent.

THE LAW 

5.	(i)	Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) provides that an employee is dismissed by his employer if the contract under which he is employed is terminated by the employer (whether with or without notice).  Article 127 continues to provide as follows:-

			“127. – (1) for the purposes of this Part an employee is dismissed by his employer if … - (c) 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”.

		(ii)	Article 156(2) of the Order states as follows:-

		“Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.

		(iii)	The Order further states at Article 157(6) as follows:-

		“Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.

	(iv)	Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 at 403 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.  

		(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”.

		(See also Western Excavating (ECC) Limited v Sharp 1978 IRLR 27).

(v)	Harvey continues:-

“(b)	The duty of co-operation

[461]  More recently the EAT has specifically followed the Post Office case on this point (Woods v WM Car Services (Peterborough) Ltd 1981] IRLR 347, [1981] ICR 666).  The Tribunal emphasised the significance of this duty for employers not to conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust.  As it pointed out, it enables an employee who is ‘squeezed out’ of the company by the wholly unreasonable conduct of the employer to leave and claim that he has been dismissed even though he cannot point to any specific major breach of contract by the employer.

	[462]  This duty not to undermine the trust and confidence in the employment relationship can be subsumed under a wider contractual duty which is imposed on the employer, to co-operate with the employee.”

	(vi)	Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether the breach is fundamental.  Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental (Morrow  v  Safeway Stores plc 2002 IRLR 9, EAT).  A key factor to be taken into account in assessing whether the breach is fundamental is the effect that the breach has on the employee concerned.

	(vii)	It is also possible for a tribunal to make a finding of contributory conduct in a constructive dismissal case in the event of there being a connection between the employee’s conduct and the fundamental breach by the employer.  As was pointed out in the Northern Ireland Court of Appeal case of Morrison v Amalgamated Transport and General Workers Union (1989) IRLR 361 NICA, since it was open to a tribunal to declare a constructive dismissal fair, there could be no inconsistency in its holding that the employee contributed to the dismissal in the first place.  All that is required is that the action of the employee to some extent contributed to the dismissal.  Once a tribunal has found on the evidence that an employee has to some extent caused or contributed to his or her dismissal it shall reduce the compensatory award.

	(viii)	Unlike an anticipatory breach of contract, an actual breach of contract cannot be retrieved by the employer offering to make amends before the employee leaves.  Once the breach has been committed it is for the wronged party to decide how to respond (Buckland  v  Bournemouth University [2010] IRLR 445 CA).

	(ix)	In Mahmud and Malik  v  Bank of Credit and Commerce International SA [1997] IRLR 606, (‘Malik’) the duty of implied trust and confidence was affirmed by the House of Lords in the following terms:-

			“The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee.”

		Lord Steyn stated that:-

			“The implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”

	(x)	The test for breach of the implied duty of trust and confidence is an objective one.  The duty of trust and confidence may be undermined even if the conduct in question is not directed specifically at the employee.  The duty may be broken even if an employee’s trust and confidence is not undermined.  It also follows that there will be no breach simply because an employee subjectively feels that such a breach has occurred, no matter how genuinely this view is held.

	(xi)	The range of reasonable responses test is not applicable to constructive dismissal per se.  However it is open to the employer to show that such a dismissal was for a potentially fair reason in which case the range of reasonable responses test becomes relevant.

	(xii)	The breach of contract must be “sufficiently important” to justify the employee resigning or it must be the last in a series of incidents which justify his leaving.  It must go to the heart of the contractual relationship between the parties.  Harvey comments that where the alleged breach of the implied term of trust and confidence constitutes a series of acts, the essential ingredient of the final act is that it is an act in a series, the cumulative effect of which amounts to the breach.  It follows that although the final act may not be blameworthy or unreasonable, it must contribute something to the breach even if it was relatively insignificant (Harvey Division D, paragraph 481.01).  See Omilaju  v  Waltham Forest London Borough Council [2005] IRLR 35.

	(xiii)	The employee must resign in response to the breach.  In the recent EAT case of Wright  v  North Ayrshire Council [2014] IRLR 4, (“Wright”) Mr Justice Langstaff (President) states at paragraph 20 of his judgment that:-

			“Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause.”

	(xiv)	In Western Excavating (ECC) Ltd  v  Sharp (1978) IRLR 27 CA, it was pointed out that an employee must make up his mind regarding resignation soon after the conduct of which he complains.  Should he continue any length of time without leaving, he will lose his right to treat himself as discharged from the contract.  However, where there is no fixed period of time within which the employee must make up his mind, a reasonable period is allowed.  This period will depend on the circumstances of the case including the employee’s length of service, and whether the employee has protested against any breach of contract.

	(xvii)	The tribunal also considered the provisions of the Industrial Tribunals Extension of Jurisdiction (Northern Ireland) Order 1994 in relation to a breach of contract.  

SUBMISSIONS

6.	Neither party made submissions to the tribunal.

CONCLUSIONS

7.	The tribunal having carefully considered the evidence before it and having applied the relevant principles of law to the findings of fact, concludes as follows:-

	(1)	Whether considered in isolation or as a last straw in a series of acts, the tribunal is satisfied that the respondent breached the implied term of trust and confidence and the wider contractual duty to co-operate with the claimant.  The claimant resigned in response to the breach having made up his mind to do so soon after the conduct of which he complained.  Furthermore, the breach was fundamental and was therefore sufficiently important to justify his resignation, or, alternatively was the last in a series of incidents of behaviour described in paragraph 4 (viii) of this decision justifying his leaving.  The tribunal does not consider contributory conduct to be a factor in this case.

	(2)	The claimant is also entitled to a minimum of two weeks’ wages in respect of the respondent’s failure to provide an initial statement of employment particulars.  The tribunal does not consider it just and equitable to increase the period to four weeks pay.

	(3)	The tribunal is satisfied that the normal agreed arrangement was for the claimant to be paid commission by the respondent once a placement had taken place and a start date was established.  This was highlighted in the claimant’s letter of resignation and in the claimant’s evidence before the tribunal, although disputed by Mark Flynn.  The start date in respect of Kevin Cullen took place on 9 March 2015 before the claimant’s resignation became effective on Friday 13 March 2015.  However the tribunal is satisfied that the other placement in respect of which £400.00 commission (gross) is claimed did not take place until after the claimant’s resignation became effective.  The tribunal is not persuaded that the claimant is owed this amount.

	(4)	The claimant is therefore entitled to the following:-

		Unfair Dismissal (Constructive)

		Basic Award				=	£  346.15

		Compensatory Award

		One week’ pay 			=	£  244.79

		Loss of Statutory Rights
							=	£  200.00

		Failure to provide initial statement 
of employment particulars

		Two weeks x £346.15		=	£  692.30

		Commission Payment
		
In respect of Kevin Cullen’s 
		placement only.
							=	£   353.55
		
TOTAL					£1,836.79

8.	The claimant did not receive any relevant benefit for recoupment purposes.

9.		This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Employment Judge:

Date and place of hearing:	 22 and 23 September 2015, Belfast.

Date decision recorded in register and issued to parties: