IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

John Grant

CLAIMANT

 

AND

 

 

Jayen Limited

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2017]TRE021

 

Hearing Date:                25 September 2017

 

Before:                         Advocate Mike Preston, Deputy Chairman

                                    Mrs Emma Harper and Mr Clive Holloway, Panel Members

                                   

Appearance:

For the Claimant:           in person

For the Respondent:     Advocate Nicholas Miere, Steenson’s

 

 

JUDGMENT

 

SUMMARY

1.      The Claimant submitted a claim for constructive unfair dismissal and wrongful dismissal dated 2 February 2017. It was alleged that the Claimant had been forced to resign as a consequence of the Respondent’s failure properly to address bullying suffered by the Claimant at the hands of an employee (“X”) of another company present on a site on which the Claimant worked. The Tribunal will refer to this individual in this way as allegations were made about him but he was not a witness and so was given no opportunity to defend himself against the allegations. This course in no way impacts upon the decision made by the Tribunal in this case.

 

2.      The Respondent’s position was that the Claimant was employed on a fixed-term contract. When it became aware of the issue between the Claimant and X, it acted swiftly to seek a solution and to resolve the problem with X’s employer. It gave the Claimant leave to consider his position during which time his fixed-term contract expired. The Respondent would have put in place another contract for the Claimant but he refused to return if X was not excluded from the site. It was not possible for X to be excluded and as a result the Claimant’s refusal to return to work, his contract was not renewed. He was not dismissed at all and was not entitled to compensation for constructive unfair dismissal or damages (in the form of notice pay) for breach of contract.

 

3.      It is the finding of the Tribunal that the Claimant was not constructively dismissed. The Claimant resigned and did not satisfy the Tribunal that the Respondent had breached his contract of employment either fundamentally or at all such as to justify his resignation. Further, there was no breach of contract such as to entitle the Claimant to notice pay and his claim is dismissed.

 

BACKGROUND

4.      The Claimant had been employed as a Site Manager at the site operated by the Respondent. It was the case that the Respondent had been contracted to carry out significant works at the site and that the other company’s employees were also present at the site. As a matter of course, those employees interacted with those of the Respondent at the site.

 

5.      It was the Claimant’s position that he had made a number of complaints to the Respondent’s Managing Director about the behaviour of X.  He said that he and others had been subjected to bullying and intimidation for some 7 months by X. The final straw came when X confronted the Claimant on Tuesday 22 November 2016. It was alleged that X had confronted the Claimant about the way that he had parked his car on the site. There followed an expletive-laden tirade from X directed at the Claimant. The Claimant felt threatened and intimidated by this and he walked away. On Friday 25 November 2016, the Claimant was approached by X at the site “in an aggressive manner”. Once again, X swore at the Claimant and when the Claimant asked for an apology for his behaviour on the previous Tuesday he was told “no f***ing way, get in my f***ing office”. The Claimant avoided a confrontation by getting into a company vehicle but X pulled the door open and continued to berate him. When the Claimant told X that he would telephone X’s employer about his behaviour, X walked away.

 

6.      The Claimant’s evidence was that he had complained to John Trant about the incident on Tuesday 22 November and about the incident on Friday 25 November. It was his case that the response of Mr Trant was insufficient in that it failed to address his long-held concerns about the behaviour of X. The Respondent had failed in its duty of care towards him and so when he resigned that resignation was the result of a repudiatory breach of contract. As such, the Claimant had been constructively unfairly dismissed and was entitled to compensation. In addition, the dismissal had been in breach of contract in that no notice pay had been paid. The Claimant claimed to be entitled to 1 weeks’ notice by way of damages for breach of contract.

 

7.      It was the Respondent’s case that it had not terminated the Claimant’s contract. The contract had come to an end by effluxion of time on 31 December 2016. The Respondent had made all reasonable efforts to reach an accommodation following the incidents involving X but the Claimant had refused to consider returning to work. In the meantime, his contract had expired and whilst, as the Respondent considered the Claimant to be a valued employee and wanted him to return, he did not do so. In the circumstances, the Claimant was not dismissed and was not entitled to compensation for constructive unfair dismissal or to any notice pay.

 

8.      It was the Respondent’s case that following the incidents in question it had approached senior members of staff at X’s employer and invited the Claimant to formalise his grievance about the situation. This it was said showed that the Respondent had taken the matter seriously and that it took all reasonable steps within its power to resolve the situation. It made arrangements so that the Claimant would have no direct contact with X in the working environment but the Claimant expressed the view that nothing short of the removal of X from the site would satisfy him. It was the case that the Respondent had no direct authority over X as he was employed by somebody else. Having backed the Claimant’s position and wishing to retain him as an employee, the Respondent granted the Claimant paid leave on 10 December 2016.

 

9.      The Claimant remained intransigent and, as the Respondent could not offer him work at any other site, his fixed-term contract came to an end. The Claimant had not been dismissed from his position and was not entitled to any compensation.

 

THE LAW

 

10.   An employee has the right not to be unfairly dismissed. Article 62(1)(c) of the Law provides that an employee is dismissed if, inter alia, “the employee terminates the contract under which he or she is employed (with or without notice) in circumstances in which the employee is entitled to terminate it without notice by reason of the employer’s conduct”.  This type of situation is a constructive dismissal.

 

11.   In the case of Carratu v United Fashions Limited (110/2011) the Chairman of the Jersey Employment Tribunal set out the four basic ingredients which must be present in a case of constructive dismissal:

 

                                                               i.      The employer must be in breach of a term of the contract of employment;

                                                             ii.      The breach must be fundamental i.e. a repudiatory breach;

                                                            iii.      The resignation must be a response to that breach; and

                                                           iv.      The employee must not delay too long in resigning following the breach.     If he or she does delay too long, then the Tribunal may find that the breach has been waived.

 

12.   In addition to the express terms which may be contained in the contract of employment there is a duty upon an employer not to destroy or seriously damage the relationship of trust and confidence that exists between an employer and their employee – see for example the case of Mahmud and Malik v Bank of Credit and Commercial International SA [1997] ICR 606.  This implied term was considered in Beillard v States Employment Board (JET 67/2001). The Respondent’s breach of the implied duty must go to the root of the contract. The test of whether there has been a fundamental breach is an objective one.

 

13.   If there is a dismissal, Article 64 of the Law applies.  The Tribunal must consider whether the employer acted reasonably in all the circumstances of the case, taking into account its size and the administrative resources available to it.  The Tribunal must apply the principles of equity, that is, fairness, and consider the substantial merits of the case.  If the Claimant is correct in his arguments, it was the conduct of the Respondent that led to the resignation.  The concept of ‘reasonableness’ in a constructive unfair dismissal case differs from a classic case where the employee is dismissed and has not resigned.  In a constructive unfair dismissal case, the issue of reasonableness is reversed and becomes an objective view of the reasonableness of the employer’s actions which led to the resignation.

 

14.   In the case of Carratu the Court also noted (at paragraph 23): “In the recent case of Amanda Bisson v States Employment Board, above, which involved a complaint that the implied duty of an employer to maintain the trust and confidence of its employees had been breached, the Tribunal applied the English Court of Appeal decision of Tullett Prebon plc & Others v BGC Brokers LP & Others [2011] IRLR 420 and looked to the intention of the employer when acting as it did.  Tullett Prebon extended the assessment of a repudiatory breach of contract to include an objective assessment by the Employment Tribunal of the motive or intentions of the employer (the alleged contract breaker) and found that the question of whether there has been a repudiatory breach of the implied duty of trust and confidence ‘is a highly context specific question’.  The Court of Appeal also confirmed the legal test of a repudiatory breach of this implied term as being, ‘whether, looking at all the circumstances objectively, that it is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract’ (Eminence Property Developments Limited v Heaney 2010 EWCA Civ 1168).”

 

15.   As to Article 77F of the Law, the Tribunal may reduce any award made where it considers that the conduct of an applicant before the dismissal that directly contributed to that dismissal was such that reduction of the award would be just and equitable.

 

16.   The Tribunal is here also dealing with a claim for wrongful dismissal which unlike the statutory claim for unfair dismissal is a contractual claim. The jurisdiction to entertain such a claim arises under Article 86 of the Law, which provides that proceedings may be brought before the Tribunal in respect of an individual employment dispute which involves a claim in respect of which a Court in Jersey would have jurisdiction.

 

17.   Claims under Article 86 require the Tribunal to make findings of fact and to make decisions on the contractual claim, as was made clear in the English Court of Appeal in Boardman v Nugent Care Society and Another [2013] ICR 927, where it was held that: -

 

“….in considering a claim for wrongful dismissal, the employment tribunal was not confined to a reviewing role, and it was not only appropriate, but necessary, for the tribunal to make its own findings of fact as to whether the claimant had breached [its] contract in such a way as to justify summary dismissal”

 

18.   This approach has been endorsed by the Royal Court on appeal from the Tribunal in the case of Voisin v Soares [2014] JRC 004.

 

19.  Such a claim arises when an employer terminates the contract of an employee contrary to the terms of the contract, for example, by failing to give proper notice or by breaching another contractual term such as a failure to follow the contractual disciplinary procedure. In this case, the alleged breach is the failure by the Respondent to pay notice following its repudiatory breach of contract.

 

20. The general rule is that either party can end the contract by giving the appropriate notice without cause or reason.

 

21. A wrongfully dismissed employee can recover damages for breach of contract. The idea is to put the employee in the position that he or she would have been in if the employer had not broken the contract.

 

22. This case concerns allegations of repudiatory breaches of contract by the employee against the employer which created a situation that gave the employee no alternative but to resign. It would likely follow from a finding of constructive unfair dismissal that there had also been a wrongful dismissal for a failure to pay notice pay but it is important that the Tribunal considers the claim for wrongful dismissal separately from that for unfair dismissal.

 

23. It is for the Tribunal to consider whether the failure to pay notice pay in a particular case amounted to a breach of contract and whether, in all the circumstances, the employee was entitled to receive that notice pay in accordance with the contract.

 

24. It should be said that if a finding was made that there was no constructive unfair dismissal, there could still be a finding of wrongful dismissal if the resignation, though not one which resulted from a repudiatory breach, was then followed by a wrongful failure to pay notice pay. However, if an employee resigned having no intention of making himself or herself available to work during the notice period there would be no breach of contract if no notice payment was made, whether or not there had been an unfair dismissal.

 

THE DECISION

 

25. As indicated above, the Tribunal found as a matter of fact that there was no breach of contract, repudiatory or otherwise, by the Respondent. The Tribunal found that the Respondent took all reasonable steps to address the concerns that had arisen as a consequence of the incidents involving the Claimant and X in November 2016. The Tribunal preferred the evidence of Mr Trant and Mr Elliot to that of the Claimant in all material respects and was not persuaded that the Respondent could have done any more to resolve the conflict that had arisen between the Claimant and X at the site. In this respect, the Tribunal found that the Respondent acted as a reasonable employer in all the circumstances.

 

26. Further, with regard to the claim for wrongful dismissal, the Tribunal found as a matter of fact that there had been no breach of contract in not paying the Claimant any notice pay.

 

27. As a consequence, the Claimant’s claims for constructive unfair dismissal and for wrongful           dismissal are dismissed.

 

 

 

 

Advocate Mike Preston, Deputy Chairman                                                    Date: 6 February 2018

 

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Page Last Updated: 07 Feb 2018