THE INDUSTRIAL TRIBUNALS

CASE REF:	2552/15

CLAIMANT:			Grant Molloy

RESPONDENT:		Nexus Power Limited

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly (constructively) dismissed by the respondent company.

Should the parties be unable to agree the amount of compensation payable, a further hearing will be held to determine that matter.

Constitution of Tribunal:
Employment Judge:	Employment Judge Buchanan
Members:			Ms M Mulligan
				Mr I Foster

Appearances:
The claimant was represented by Mr S Magee, Barrister-at-Law, instructed by RJW, Solicitors.
The respondent company was represented by Mr T Sheridan, of Peninsula Business Services Ltd.

1(i)	By a claim form dated 10 November 2015 and presented to the Office of the Tribunals on 11 November 2015, the claimant, Mr Grant Molloy, alleged that he had been constructively dismissed by the respondent company.

 (ii)	At a Case Management Discussion held before the Vice President of the Tribunals on 8 January 2016 it was contended, on behalf of the claimant, that there had been a number of potential breaches of contract giving rise to the claim of constructive dismissal.  These related to the treatment and determination of his grievance, the provision of work, the non-payment of overtime and the provision of pay-slips.

	These claims were disputed by the respondent company, which for its part, contended that had there been any breaches of the claimant’s contract of employment, any such breaches had been waived by him and the contract had thus been affirmed.

(iii)	At the hearing the dispute effectively crystallised around two matters.  These were, firstly, the claimant’s allegation that hours of overtime which he had worked at weekends, etc and which had been ‘banked’ for him by the company had been                   set-off against wages paid to him during a period of lay-off in January/February 2015.  This set-off had ultimately led to him owing the company hours.  It was the claimant’s case the company were not entitled to do this, whereas they claimed the contractual power to do so.  It was common ground that if there was no legal power to do this, then what had occurred was a fundamental breach of contract.  Secondly, he complained that the respondent company did not deal with his grievance about this matter adequately or promptly.

(iv)	In order to determine the matter we heard evidence from the claimant, Mr Molloy, and from Mr Brendan McNally, the respondent company’s commercial director, and from Mr Ray Pauley, the managing director, on its behalf.  We also had regard to the fairly extensive documentary evidence to which we were referred by the parties.

	We found much of the evidence in the case unsatisfactory and lacking in clarity and we have to say that we were not overly impressed by either the claimant, or the witnesses for the respondent company.  We were also somewhat surprised that Mr Little, an employee of the respondent company, did not come to give evidence of a conversation with the claimant on 17 January 2015 which we considered to be of potential relevance.  We want to make it clear, however, that we have no criticism of either Mr Magee BL or Mr Sheridan who did their best to assist the tribunal.

2	We start in this case by setting out briefly the law on constructive dismissal.

In order to prove constructive dismissal, a claimant must show that the employer has committed a repudiatory breach of contract, that is to say a significant breach going to the root of the contract or a fundamental breach (Western Excavating (ECC) Ltd  v  Sharp [1978] ICR 221).  He must show that he left his employment because of the breach.  It is no longer proper to focus on the issue of whether the employer’s breach of contract was the main or ‘effective’ cause of the employee’s resignation.  The question for the tribunal is whether the breach played a part in the employee’s resignation (Wright  v  North Ayrshire Council [2014] ICR 77).  Finally, the employee must not have waived the breach (ie affirmed the contract of employment).  He must not delay his resignation for too long a period, or do anything else which shows an acceptance on his part of any variation or change in the hours of his employment.

3	We find the following facts proved:-

(i)	The claimant commenced work with the respondent company on 1 July 2011 and resigned from that employment on 23 September 2015.  He was employed as a cable jointer.  The respondent company carried on business as an electrical cable jointing sub-contractor employing 15 people across sites both in Northern Ireland and the UK mainland.

(ii)	The nature of the dispute between the parties has been set out at Paragraph 1(iii) about, and it is common ground that this issue of banked overtime hours being set-off against payment of wages during a period of lay-off goes to the crux of the matter.

(iii)	The claimant does not dispute that there was a lean working period in January/February 2015.

(iv)	The respondent company took hours from the banked overtime system to offset payment of wages during the period of lay-off.

(v)	There is no provision in the claimant’s statement of main terms of employment permitting the company to take such a course, though by virtue of his contract of employment the claimant could be required to work a certain amount of overtime, eg on bank holidays.

(vi)	The claimant’s case is that he did not agree to any variation in his contract of employment entitling his employer to offset the banked hours.

	We are satisfied that there was no such agreement on his part.  An                   e-mail from the respondent company to its employees upon which they rely in support of their contention that there was a variation of the contract required a response from employees.  The claimant did not respond.  While we do not consider this of itself to be fatal to the respondent company’s case, the whole course of conduct between the parties in relation to any purported variation is so lacking in clarity, ambiguous and equivocal that we cannot discern from their conduct and the documentary evidence any term which is certain enough to constitute a variation.  In reaching this conclusion we bear in mind that any ambiguities in contractual terms must be construed strictly against the party imposing them.  It would require clear evidence indeed to satisfy us that the claimant would have signed up to something which had the potential at least to be so detrimental to his financial interests.

(vii)	While there is some evidence that the claimant had in the past availed of the overtime banking system, he did so only to take time off in lieu, not to set it against wages paid during a time of lay-off.  Consequently, we do not consider that the respondent company can invoke custom and practice as the basis for any purported variation.

4(i)	We are therefore satisfied that the claimant resigned from his employment following a fundamental breach of his contract by the respondent company.

(ii)	We are satisfied that he did not delay in doing so and that at the time he resigned he anticipated that further banked hours would be taken from him.

(iii)	While there was some delay in the grievance procedure, we do not accept that it was unreasonable or excessive to the extent that it constituted another significant breach of contract.

5	We have already made it clear that we considered much of the evidence in this case unsatisfactory.  That applies as much to quantum as liability.  We shall therefore give the parties a reasonable opportunity to agree compensation between themselves.  Failing such agreement within a reasonable time, the matter will be     re-listed before us for a hearing on remedy.

Employment Judge

Date and place of hearing:	21 – 23 March 2016; and
26 April 2016, Belfast

Date decision recorded in register and issued to parties: