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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Grainger v Pat Kirk Limited [2005] NIIT 1633_03 (7 April 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/1633_03.html Cite as: [2005] NIIT 1633_3, [2005] NIIT 1633_03 |
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CASE REF: 1633/03
CLAIMANT: Benedict Grainger
RESPONDENT: Pat Kirk Limited
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed, or unfairly constructively dismissed, by the respondent, and the claimant's complaint of unfair dismissal, otherwise unfair constructive dismissal, is dismissed by the tribunal.
Appearances:
The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Falls and Hanna, Solicitors.
The respondent was represented by Mr D Quinn, Barrister-at-Law, instructed by McCanny & Keohane, Solicitors.
REASONS
(i) Unfair dismissal
(ii) Unlawful deduction from wages
(iii) Failure to pay proper holiday pay
(iv) Failure to pay agreed pension contributions.
The respondent accepted that the claimant had been employed, but maintained that the claimant had never been dismissed from employment with the respondent but had resigned from the employment. The respondent also resisted the contention that the claimant had been constructively dismissed. In regard to the remainder of the complaints the position is as set out below.
THE ISSUES
THE TRIBUNAL'S FINDINGS
(a) The claimant was possessed of considerable experience as a mechanic in the motor industry. At the material time which concerns the tribunal he had approximately 16 years' experience as a motor mechanic. He appears to have commenced in that occupation as a mechanic with Fivemiletown and Brookborough Co-operative and Dairy Society Limited ("the Co-operative"), Fivemiletown, County Tyrone, based at the Co-operative's "Auto Service Station", Sligo Road, Enniskillen. In respect of that post the claimant was provided with a statement of main terms and conditions of employment which statement described his job title as being, "mechanic". Those terms contained a written disciplinary and grievance procedure. Clause 4 of the said statement also contains the words, "however when considered necessary/appropriate by management you are liable to transfer to some other duty in order to meet fluctuations/priorities in work demands". On 14 April 2000 the claimant signed his agreement to an updated statement of terms and conditions of employment providing, amongst other things, that the claimant was a member of a group pension plan with Royal and Sun Alliance which plan provided for both a personal contribution and an employer's contribution to the plan. The updated statement also provided for paid annual leave and specific agreed hours of work. A sick pay scheme from the Joint Industrial Council for the Milk Processing Industry in Northern Ireland also appears to have been incorporated into the agreed terms and conditions applicable to the claimant's employment. That scheme provided for contractual sick pay and other benefits.
(b) In February 2001 a Mr Paul Leonard acquired the "Auto Service Station" in Enniskillen from the Co-operative and that part of the former business of the Co-operative transferred into Mr Leonard's ownership and was renamed "A1 Autos". As a consequence, the claimant became an employee of Mr Leonard who was the sole proprietor of A1 Autos. There was one other mechanic, a Mr Ronnie Nevin, who had previously been employed by the Auto Service Station whose employment also transferred to A1 Autos at the time. Mr Nevin had rather less length of service than that possessed by the claimant.
(c) A1 Autos was a small concern in terms of the number of employees. In addition to the claimant and the other mechanic, the business employed a sales manager and an employee who had responsibility for after-sales and parts, as well as a small number of administrative staff. In passing, it must be mentioned that at all times and by all accounts, the quality of the claimant's work as a mechanic was beyond reproach.
(d) Whilst being an experienced motor mechanic, the claimant did, from time to time, express the desire to, as it was put, "get out of the boiler suit and into the shirt and tie", thereby expressing a desire on his part to take on a more administrative type of function within the business enterprise. In respect of the specific functions performed in the business at that time, that is to say the early part of 2002, two employees of A1 Autos, Ms Gemma Murphy and Ms Diane Boyle, both performed a function in the business accounts department and, in particular, Ms Boyle's function specifically involved the administration of the parts, after sales and service department of A1 Autos. The claimant assisted Ms Boyle to a degree in that function, in that he helped by assisting with the sourcing of parts and spares; he was very familiar with these, having worked with the types of vehicles with which the business was concerned over a considerable period of time.
(e) As it transpired, Ms Boyle left the employment of A1 Autos rather suddenly. There was a conflict in the evidence as to whether or not that sudden departure occurred in September 2002 or in November 2002 and, regrettably, employment records which would otherwise probably quite easily have resolved that issue were not placed before the tribunal; the tribunal had some difficulty in resolving that departure date. The significance of that difficulty relates to the subsequent and rather significant installation of the claimant in the job role that had previously been carried out by Ms Boyle, that is to say being in charge of parts, after sales and the service department of A1 Autos. The demands of that post involved both a working familiarity with the specific parts and spares employed by the business (and the tribunal is satisfied that the claimant a considerable degree of such familiarity) and also the performance of an administrative function which involved the use of a computer-based system. Whilst the job functions were rather different from those previously carried out by the claimant, the claimant agreed upon being so requested by Mr Leonard to undertake the new post. Examining the evidence, the tribunal is satisfied that there was no duress applied by Mr Leonard to ensure that the claimant transferred to the post; the claimant undertook that transfer quite willingly at that time. The claimant was then given assistance by Ms Murphy in regard to some of the more unfamiliar aspects of the functions, and had further help and support, as is mentioned below.
(f) In the early part of 2002, discussions had commenced between Mr Leonard and Mr Pat Kirk, Managing Director of Pat Kirk Limited, the respondent company, concerning the possible takeover of A1 Autos by the respondent company. Mr Kirk had visited the premises on a number of occasions to familiarise himself with the operations of the business. Ultimately agreement was reached that the respondent company would acquire the business undertaking of A1 Autos. That acquisition was completed on 1 December 2002. As a consequence, the contracts of employment of all employees of A1 Autos, including that of the claimant, transferred to the respondent company with effect from 1 December 2002. The respondent company was a sizeable concern in the motor industry in Northern Ireland, with a number of commercial outlets at different locations in Northern Ireland. The total staff employed by the respondent company at the material time numbered in excess of 35 or so employees. In contrast, A1 Autos at the time of the takeover employed about 5 persons, including the claimant.
(g) The computer-based administration system of the respondent company had certain similarities to the system already in existence in A1 Autos at the time of the takeover. However a decision was taken to rationalise the administrative systems and that task was undertaken by a Director of the respondent company, Mr Seamus Foley, and by a Mr Peter McDermott. The claimant was at that stage given a total of four days' dedicated training on the new computer-based administrative system by Mr McDermott. Further, a procedure was devised whereby any employee using the administrative system could communicate remotely with Mr Foley in respect of any enquiries. Additionally, a "dummy" system was devised to assist with training and enquiries whereby users could try out procedures and techniques in order to gain familiarity without, as it were, "causing any damage". Ms Gemma Murphy was to hand, at all times, to deal with practical difficulties such as might have been experienced by the claimant in the implementation and practical working of the system. There is no doubt that the claimant, notwithstanding that he possessed some familiarity with contemporary technical and electronic equipment of a diagnostic and information retrieval nature used in the auto industry, did not have a ready familiarity with computer-based information management and retrieval systems, and that he required specific training. However, the claimant, for whatever reason, also appears to have had a certain resistance to the acquisition of knowledge and of skills in these types of systems at the material time. As far as the tribunal is concerned, there is no doubt that, in general terms, there was an apparently reasonable and adequate training and support system provided by the respondent which could have been availed of by the claimant at the material time.
(h) The tribunal heard contradictory evidence concerning an issue of alleged harassment said to have been suffered by the claimant at the hands of a Mr James McGovern, an employee of A1 Autos and then subsequently of the respondent. Mr McGovern was the father of Ms Boyle. The claimant contended at hearing that he had been subjected to bullying and harassment by Mr McGovern, which claimed conduct appears to have been in some way connected with Ms Boyle's sudden departure from her post and with the claimant's taking up of that post, so it was alleged. The claimant contended that he had complained on a number of occasions to Mr Leonard about this bullying and harassment, and that Mr Leonard had failed to do anything about such complaints. The other mechanic, Mr Nevin, was also alleged by the claimant at hearing to have been involved in this harassment. Mr Leonard denied that the claimant had made these complaints to him. The claimant's evidence in that regard was uncorroborated by other witness evidence or by other means. Considering the conflicting evidence, and giving consideration to all relevant factors, the tribunal prefers the evidence of Mr Leonard which was that Mr Leonard was unaware of any specific complaints of harassment of the claimant by Mr McGovern save for one incident that occurred in February of 2003. There was a specific issue, it appears, concerning a customer's MOT appointment that was missed, and some difficulty arose thereby that affected the claimant. Mr McGovern appears to have been in some way responsible for or connected with that. However, Mr McGovern appears indeed to have had certain conflicts in the workplace with other individuals which eventually resulted in disciplinary proceedings being taken against Mr McGovern by the respondent. However, it is not the case, as far as the tribunal is concerned, that the claimant repeatedly complained about Mr McGovern's harassment of him to Mr Leonard and that these complaints were dismissed or ignored by the latter.
(i) On 13 January 2003 Mr Leonard called together the staff and gave them what could be best described as a "pep talk". There is no doubt that an endeavour was being made by Mr Leonard to encourage all staff to assist in achieving an efficient and proper administration and management of the business outlet under the new ownership of the respondent company. The perceived need to have such a talk on Mr Leonard's part appears more to relate to the giving of general encouragement to all employees to pull together, rather than to relate to a specific dealing on Mr Leonard's part with any difficulties at the time alleged by the claimant to have been experienced on his part.
(j) The claimant then had a period of sickness absence from work commencing on 4 March 2003. He returned on 5 April 2003. This absence was as a result of a specific medical condition. From any evidence available to it, the tribunal does not believe that this absence was in any way directly connected with any medical issue arising from stress at work contended by the claimant at the hearing to have been sustained by him.
(k) A short time after the claimant's return to work from this period of sickness absence, on 9 April 2003 the claimant and Mr Leonard met and had a discussion during the course of which the claimant stated to Mr Leonard that the claimant was, as he put it, "fed up with the job". The discussion centred around the claimant's stated difficulty in dealing with the computerised management system in relation to his job functions. The claimant stated to Mr Leonard that he did not wish to continue and he requested that he be paid off. Subsequent to that discussion Mr Leonard spoke with Mr Kirk and the latter declined to accede to the suggestion that the claimant might be made redundant.
(l) The next day, 10 April 2003, Mr Leonard spoke again with the claimant and he conveyed to him the respondent's decision that he was not to be made redundant, that there was a need for the claimant to continue his work in the parts, after sales and service department and, in any event, the possibility of the claimant's returning to being a mechanic was not feasible as there was insufficient work fully to occupy two mechanics. From the tribunal's inspection of documentation furnished regarding the productive hours of the section at the relevant time, it clearly appears to have been the case that the business did not require two mechanics in full-time employment.
(m) On Friday, 25 April 2003, the claimant had a further discussion with Mr Leonard whereby he expressed dissatisfaction with his continuance in this post. Mr Leonard gave him some words of encouragement, whereupon the claimant stated to Mr Leonard that he would think about his situation over the weekend. On Monday 28 April 2003 the claimant spoke with Mr Leonard. There was a regrettable but significant conflict between the evidence of the claimant and that of Mr Leonard as to what occurred that day. In regard to this, the tribunal on balance prefers the evidence of Mr Leonard and of the respondent's witness, Ms Murphy, as being more credible and as being to an extent corroborative one of the other and consistent. The tribunal was conscious of Ms Murphy's being an employee of the respondent at the hearing date, but found her evidence to be entirely credible The claimant spoke with Mr Leonard and, having apparently considered his position over the previous weekend, the claimant announced to Mr Leonard that he had had enough of the job and that he had decided that he was not going to get himself into bad health over the job and that he was leaving. The tribunal is satisfied from the tenor of the evidence that this, "he was leaving", was a reference to the claimant leaving not just the specific post then occupied by him, but indeed his employment with the respondent. The tribunal does not detect any ambiguity in the words spoken. The claimant also spoke with Ms Murphy that same day and announced to her that he would be leaving the employment in two weeks' time. Again, the tribunal does not see any ambiguity in that announcement to Ms Murphy; this was a reference to his leaving employment with the respondent and not to his leaving the post then occupied by him (and returning to any other post within the respondent company). After that resignation was communicated by the claimant to Mr Leonard the outstanding issue of appropriate notice of leaving was apparently discussed and was agreed. Notwithstanding some ambiguity in the evidence about the precise date, the tribunal understands that a leaving date of 16 May 2003 was discussed and agreed at the time.
(n) Mr Leonard orally communicated acceptance of the claimant's resignation on behalf of the respondent and, everything having been apparently agreed as regards the date of leaving, the claimant proceeded to make plans to engage in a car rally which apparently was to commence on Friday 2 May 2003 in the Republic of Ireland and to proceed over the subsequent few days. The claimant was apparently off work for a few days for that purpose. Sponsorship of the claimant for that activity was provided, it appears, by the respondent. The tribunal is a little unclear from the evidence as to what day the claimant was supposed to return to work to finalise working out his notice period. However, the claimant came in to work on 7 May 2003 and he gave to Mr Leonard a "sick line" from his Doctor for a period of 4 weeks' absence. Apparently the claimant's illness as stated in that "sick line" was said to be stress-related. Mr Leonard had of course been aware that the claimant had been ill previously some weeks before. However, the tribunal understands that the diagnosed illness stated on the previous "sick line" was not described as being stress-related. At that point Mr Leonard apparently was rather surprised and he became rather suspicious of what he viewed as the claimant's intentions. Mr Leonard stated that he was not going to fall out with the claimant but that he knew what he was up to. That was apparently a reference by Mr Leonard to his belief that the claimant was endeavouring to depart from what had previously been agreed regarding the basis and the timing of the claimant's leaving the job. The conversation between the two finished at that point.
(o) It appears that Mr Leonard had, at what point the tribunal cannot quite be certain, issued to the administrative staff of the respondent an instruction to prepare final wages and a P45 with a view to the claimant's leaving on 16 May 2003. Whether on account of a default or not, it seems that the P45 (possibly with the final instalment of wages although the tribunal is not entirely clear on that point) was posted by the respondent's wages department to the claimant without any covering letter also being enclosed therewith. That P45 was received by the claimant in the post on 16 May 2003.
(p) There is no doubt that, upon receipt of the P45 on 16 May 2005, the claimant became rather agitated. He contacted his sister, a Mrs Dolan. The claimant, together with Mrs Dolan, called that day with Mr Leonard and the two spoke with him; the tone of the meeting was apparently perceived by Mr Leonard as being quite confrontational. Mr Leonard took the view that he was unwilling to continue with the meeting in the absence of a witness being present. He called the meeting to an abrupt close and he promised that a further meeting would be convened when a witness would become available. As it transpired, no further meeting took place. Then the claimant took legal advice and subsequently issued these proceedings by means of an originating application dated 23 June 2003, which application was received by the Office of Tribunals on 24 June 2003. The tribunal does not need to determine any further material findings of fact for the purposes of its determination in this case.
THE APPLICABLE LAW
"In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight".
It is recognised that an employee using apparently unambiguous words of resignation might, nonetheless, in special circumstances avail of an opportunity to argue that it would be unreasonable for words to be construed at face value. These special circumstances emerging from the decided authorities would include words spoken in the heat of the moment, or under extreme pressure, or words spoken by an immature employee, or one jostled into a decision by the employer, or, as in the case of Barclay, where the employee was suffering from a mental disability. The tribunal was also referred to the case of Marriott –v- Oxford and District Co-operative Society Ltd [1969] 3 All E.R. 1226, regarding the proposition that an employee is entitled in particular circumstances to continue to work for an employer, as it were "under protest", for a short period pending the finding of alternative employment. Finally, and this was not in contention, the Transfer of Undertakings (Protection of Employment) Regulations 1981 provide that the transfer of any undertaking shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or in the part so transferred. In this case there were two such transfers of the claimant's contract of employment both of which were accepted as being such as to come within the ambit of the said 1981 Regulations.
THE TRIBUNAL'S DETERMINATION
Chairman:
Date and place of hearing: 7 April 2005, Enniskillen, 25 April and 31 May 2005, Omagh, and 15 June 2005, Belfast.
Date decision recorded in register and issued to parties:
