Ms Charlene Cowie v Bute Island Foods Ltd — 2021

Ms Charlene Cowie brought a claim of constructive unfair dismissal after resigning from her role as Quality Assurance and Training Lead at Bute Island Foods Ltd. The claim focused on events on Friday 4 October 2019, when Ms Dawson questioned her in the Technical Office about mobile phone use, and later that day when Ms Cowie went to the Director's Office and complained about being spoken to in front of colleagues. The tribunal accepted the respondent witnesses as straightforward and preferred their evidence where it conflicted with Ms Cowie's account.

The tribunal set out the constructive dismissal issues by reference to whether there had been a fundamental breach of contract, whether Ms Cowie had affirmed the contract, and whether she resigned in response to the alleged breach. It applied the principles in Western Excavating, Wright, Meikle, Malik, Buckland and Chindove, and noted the statutory framework in section 95 ERA 1996. It found that Ms Cowie returned to her workspace after the Director's Office exchange and worked for several hours, but that this did not amount to affirmation. It also found that the fit note and the timing of her resignation did not amount to affirmation.

On the substance of the alleged breach, the tribunal found that Ms Dawson's conduct was not repudiatory and was not conduct likely to destroy or seriously damage trust and confidence. Ms Dawson had been told of concerns about personal mobile phone use, entered the Technical Office to ask for an explanation, and did so with raised but not unduly raised voice; she was not found to have shouted or acted aggressively. The tribunal also found that there was reasonable and proper cause for her conduct, and that she had not viewed CCTV of Ms Cowie before the interaction. It similarly found that Mr Mark Crichton's comments about lateness were not repudiatory and were made with reasonable and proper cause.

The tribunal accepted that Ms Cowie resigned in response, or at least partly in response, to the events of 4 October 2019, but held that she was not entitled to treat those events as repudiatory breaches of contract. Because the claim failed on liability, the question of loss did not arise and no remedy was awarded.