IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
Hearing Date: 25
Before: Advocate Mike Preston, Deputy
Emma Harper and Mr Clive Holloway, Panel Members
For the Claimant: in
For the Respondent: Advocate
Nicholas Miere, Steenson’s
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
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.
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.
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:
The employer must be in breach of a term of the contract
The breach must be fundamental i.e. a repudiatory breach;
The resignation must be a response to that breach; and
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  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  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.
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.
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  ICR 927, where it
was held that: -
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”
approach has been endorsed by the Royal Court on appeal from the Tribunal in
the case of Voisin v Soares  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.
general rule is that either party can end the contract by giving the
appropriate notice without cause or reason.
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.
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.
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.
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.
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
Advocate Mike Preston, Deputy Chairman
Date: 6 February 2018