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Kerrie Foy v. Bolan Investments Ltd - (03 Jan 2017)

Employee must resign in response to the breach; an employee must make up his mind regarding resignation soon after the conduct of which he complains


Claimant was employed as a full-time sales assistant in the respondent’s premises in Enniskillen. She was employed from 20 April 2012 until her resignation on 15 January 2016. Claimant claimed constructive unfair dismissal. Respondent denied her allegations in their entirety. Relevant issue was whether claimant was constructively unfairly dismissed by the respondent.

Article 127 of Employment Rights (Northern Ireland) Order 1996 provides that an employee is dismissed by his employer if contract under which he is employed is terminated by the employer (whether with or without notice). Once a tribunal has established that a relevant contractual term exists and that a breach has occurred, it must then consider whether breach is fundamental. Where an employer breaches the implied term of trust and confidence, the breach is inevitably fundamental.

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.

Claimant, who evidently had access to legal advice prior to her resignation, relied on last straw doctrine in her letter of resignation. Claimant did not make a case in relation to a breach of implied duty of trust and confidence or in relation to duty of co-operation. Furthermore, tribunal is satisfied that Sandra Walker’s reprimand related to managerial issues and in particular the manner in which she handled the various matters which arose, rather than any misconduct by her in terms of claimant being either bullied or “picked on”. Tribunal is not satisfied that it had sufficient evidence before it to show that Respondent breached claimant’s contract of employment in circumstances in which she was entitled to terminate it without notice by reason of employer’s conduct.

In the event of claimant having been able to establish such as breach, subsequent events culminating in the mediation meeting on 1 December 2015, when taken together with the fact that, claimant delayed until 15 January 2016 before resigning (and in meantime pursued job applications), demonstrate, in the tribunal’s view, that she did not leave for a reason in response to any such alleged breach between 20 October and 2 November 2015. She also delayed too long in terminating contract thus waiving any alleged breach and agreeing to vary the contract. Respondent had also taken positive steps to ensure that she should ‘comfortably’ return to work. Tribunal therefore dismisses the claimant’s claim of constructive unfair dismissal.

Relevant : Morrow v Safeway Stores plc 2002 IRLR 9, EAT, Western Excavating (ECC) Ltd v Sharp (1978) IRLR 27 CA


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