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Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Downey v Department for Regional Development [2007] NIFET 499_00 (28 July 2007)
URL: http://www.bailii.org/nie/cases/NIFET/2007/499_00.html
Cite as: [2007] NIFET 499_, [2007] NIFET 499_00
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- At the outset of the hearing, it was agreed by the parties that the Tribunal should firstly consider and determine the liability of the respondent in relation to the claims of the claimants and, if necessary and appropriate, in light of the Tribunal's decision on liability, the matter would be re-listed to consider any remedy which the claimants would be entitled, on foot of the said decision. It was further agreed by the parties that the Tribunal, as part of this decision on liability and in advance of any remedy hearing, would also determine, in relation to the claims of the claimants of unfair dismissal, whether any of the claimants had contributed to the said dismissal and, if so, the amount of any such contribution.
- .1 By their originating applications, each of the claimants made claims that each had been unfairly dismissed by the respondent and had been unlawfully discriminated against by the respondent on the grounds of their religious belief and/or political opinion. The claimants and/or their representatives confirmed, at the outset of the proceedings, that the said claims of unlawful discrimination were on the grounds of their religious belief and not on the grounds of their political opinion further that the said claims of unlawful discrimination related to the dismissal of each claimant by the respondent. The respondent, by its notice of appearance, denied the said claims of the claimants and stated, also that the claimants had been dismissed on disciplinary grounds.
- .2 The first and second claimant gave oral evidence to the Tribunal. However, the third claimant was unable to attend the Tribunal, due to ongoing ill health. In accordance with Rules 13 and 23 of the Fair Employment Tribunal (Rules of Procedure) 2005, and with the consent of the parties, the Tribunal before making this decision considered all documents/information presented to the Tribunal at the commencement of the hearing, by the second claimant on behalf of the third claimant, including written representations/statements made on behalf of the third claimant and documents relating to his said claims, which were admitted in evidence, with the consent of the parties, without formal proof. The second claimant, as representative of the third claimant, was made aware by the Tribunal, and agreed, that the Tribunal in considering such information/documents would have to consider the weight to be attached to same, in circumstances where the third claimant did not give oral evidence and the respondent was unable to cross-examine him.
- The Tribunal made the following findings of fact, insofar as relevant and material.
- .1 Each of the claimants, who are Roman Catholic, were employed by the respondent, and their predecessors in title, in the Road Service Division of the respondent. The claimants were employed in the Down Section, based at the depot at Castlenavan Quarry, Seaforde, County Down.
- .2 On 1 December 1999, the claimants each received a letter from J Hall (SPTO) Area Engineer South, headed "Formal Disciplinary Procedure". The letter did not set out the terms of that procedure, nor enclosed any copy of the procedure.
- .3 Prior to the sending of this letter, Mrs Teggart, the supervisor of the claimants at the said depot had spoken to each of the claimants on 24 November 1999, as indicated in Mr Hall's letter, dated 1 December 1999; and in particular in relation to the charges relating to the events occurring on 19 November 1999 and/or 24 November 1999. She provided Mr Hall with a written report of her interviews with each of the claimants.
- .4 Following the interview with Mrs Teggart, but before the letter dated 1 December 1999 was sent by Mr Hall, the second claimant on 29 November 1999 approached his foreman to advise that he had made a mistake on the bonus sheet for the work claimed for 20 November 1999 on Claragh Road, Drumnaghan Road, Newline Road, Drumaroad Road and Manse Road, and the subject matter of the seventh charge set out in the said letter. He asked for the return of the form.
- .5 In relation to the second charge faced by the first claimant, and the fourth charge faced by the third claimant, which were in similar terms, the Tribunal noted, and it was subsequently acknowledged by Mr Hall in evidence, they did not in fact pose any specific disciplinary offence by either claimant on the basis of the narrative set out. As was acknowledged by Mr Hall, the charge was intended to reflect the fact that he did not believe they had been doing any work at the time when they had stated they were tidying up. Despite the fact that this was the intended thrust of the charge this was at no time ever put to the first and third claimants; nor was the charge amended in any way.
- .6 In relation to the charges made against each of the claimants, which related to claims for work which had not been done and/or duplicate claims, they were each separately charged in relation to these matters 'as part of the [MSU] squad'; albeit it was common case, as stated above, that the relevant paper work in relation to those claims was filled in by the second claimant and not the first and third claimants.
- .7 Each of the claimants responded in writing to the charges set out in the said letter.
- .8 On 15 December 1999, Mr Hall held separate disciplinary interviews with each of the claimants. Mr Doherty, Solicitor, J M Hughes & Company attended as a "friendly adviser" rather than as a solicitor for the claimants. At the outset of each interview, Mr Hall referred to the respondent's disciplinary procedure, and stressed the necessity for the meeting to establish the facts. The Tribunal is satisfied that Mr Hall did not set out the details of the disciplinary procedure relied on by him. Indeed, at no time during the course of these disciplinary procedures, did the respondent provide to the claimants a copy of the procedure which was relied upon by the respondent. This was of some significance since, as shall be set out later in this decision, it subsequently emerged that the respondent, at the relevant time, was relying upon a procedure which was still used by the respondent; but which had been replaced by an amended/new procedure some many years previously. The amended/new procedure had not in fact been used by the respondent in the intervening period.
- .9 Following the disciplinary interviews, Mr Hall asked Mr Forster to carry out further investigations into the work the squad claimed to have carried out during the summer period and to investigate the materials used in order to establish the quantity of work undertaken. He also sought written clarification from Mr Cunningham whether he had in fact praised the squad for the work which had been done at the Tullynaskeagh Road. Mr Cunningham denied that he had done so. Mr Hall also sought clarification from Mrs Teggart, inter alia, in relation to the claimants' contention that what they had done in relation to taking vehicles home/not reporting to the depot after completion of work was in accordance with custom and practice accepted by management at the depot. Mrs Teggart, in a detailed response, did not accept that what was stated by the claimants was the custom and practice. She also referred to specific occasions when both the second and third claimants had been told not to take their vehicles home and referred to the Health & Safety implications of having such vehicles out of the depot at night. She also indicated specific instances when permission had been given to certain operatives to take their vehicles home for particular reasons.
- .10 Mr Hall then wrote a memo dated 18 January 2000 to Mr Des Moore (PPTO) Principal Engineer Operations at the respondent's headquarters in Ballymena in respect of each claimant. Each followed a very similar format. He stated in relation to each claimant that in accordance with the disciplinary procedures and following detailed investigation, subsequent to a disciplinary interview, he considered that the claimant had committed a number of disciplinary offences. He also stated that he considered this to be gross misconduct of a serious nature and recommended that dismissal was the appropriate penalty. He did not set out the specific disciplinary offences referred to prior to this memo, there had been no reference by Mr Hall to gross misconduct or indeed recommendation of dismissal by him. He referred to and enclosed with the letter the previous records/documents he had had prior to the disciplinary hearing, the minutes of the disciplinary hearing, and the further documents/information obtained by him following the disciplinary hearing, together with the letters, dated 1 December 1999, sent to each claimant and their response thereto.
- .11 Neither the memo of Mr Hall dated 18 January 2000, nor the attachments thereto, were sent to the claimants. In particular, as set out in the letter dated 18 January 2000, Mr Hall was raising the very serious charges of fraud, which had not been referred to before; and further was alleging that in relation to these charges of fraud there was collusion on the part of the claimants and that they were jointly involved, as a squad, to perpetrate the said fraud.
- .12 Each of the claimants was then written to, in similar terms, in a letter dated 25 January 2000 by Mr Moore. In it he referred to Mr Hall's letter dated 1 December 1999 and his subsequent interviews on 15 December 1999. He does not refer to Mr Hall's letter containing his said recommendation dated 18 January 2000; nor does he enclose it.
- .13 By letter dated 2 February 2000, Mr S Doherty, Solicitor of J M Hughes & Company, Solicitors, wrote to Mr Moore in response to his letter of 25 January 2000. In the letter he stated that each of the claimants were his clients.
- .14 Mr Wilson conducted disciplinary hearings in relation to the 3 claimants. The Tribunal was satisfied that, at an early stage of the hearings, the copy minutes of the meeting with Mr Moore were photocopied by Mr Wilson, at the request of the claimants. However, it was also satisfied that no other documents/minutes and, in particular, any of the supporting documentation/reports relied upon by the respondent and which had not been provided to the claimants as set out previously, were provided either before these disciplinary hearings or during the course of them. All such supporting documentation/reports were in the possession of Mr Wilson, prior to the commencement of the hearings. Indeed Mr Wilson had made further enquiries/investigations in relation to the charges, prior to the hearings, but again the results of these were not disclosed to the claimants.
- .15 Disciplinary hearings were held by Mr Wilson on 24 March 2000 in relation to the 3 claimants. At the hearing involving the third and first claimants, the second claimant accompanied each of them as friend/colleague and generally assisted them in the conduct of their defence. In the case of the second claimant, he was accompanied by the first claimant as a friend/colleague; but it does not appear the latter took much or any part in the hearing.
- .16 Given the number of charges and details, including identity of locations, relating to each charge and, in particular, those charges relating to the duplicate claims/work not having been done, which had all taken place over a period of time, the Tribunal noted that each interview only lasted approximately half an hour. This period of time, in the Tribunal's view, could not have given sufficient time to consider the said charges in any depth and to give the claimants a full opportunity to defend the charges; and, in particular, those charges relating to the duplicate claims/work not having been done; which, as set out above, were considered by the respondent to be charges involving fraud on the part of each of the claimants.
- .17 At the outset of each disciplinary hearing, held with each claimant, Mr Wilson pointed out the seriousness of the situation and that his final decision could lead to dismissal, as recommended by Mr Hall - but which recommendation had still not been produced to the claimants; and was not produced during the course of these disciplinary hearings.
- .18 In the time available for each hearing, and not having provided copies to the claimants, in advance, Mr Wilson was not in a position to put to the claimants the details relating to each charge, as set out in the supporting documentation, relied upon by the respondent, and which was in his possession at the time of these hearings.
- .19 It was clear from the minutes of the interview with the second claimant, who had a responsibility for the paper work, the second claimant denied the said charges and could not accept, in general terms, that any inspections by the relevant line managers could have supported the basis for each of the said charges. The claimants were not shown any records of these inspections, all of which were visual; but merely, as set out previously, were told of the final conclusions. As recognised by Mr Forster, who was one of the line managers/supervisors who carried out some of the inspections relied upon, the only way to reach any conclusion, whether work had or had not been done, was to carry out an inspection. The claimants were not present at any of these inspections, nor were they given an opportunity to do so. Mr Wilson, as he acknowledged in evidence to the Tribunal, at all times believed what he had been told by his line managers/supervisors was the result of their inspections and did not consider that it was necessary for the claimants themselves to see the details of any of the records relating to those inspections or indeed to be present at any such inspections. Crucially, the claimants, in the course of these hearings, made a specific request that there should be an inspection at which they were present. It could then clearly be seen, by those attending, precisely the identity of the sites, the subject matter of the various charges, and to note whether or not any work could be shown to have been done at those sites. It has to be recalled that, prior to these hearings, the claimants' solicitor had made a similar request, which had been ignored.
- .20 Following the conclusion of the disciplinary hearing and the receipt of further information from Mrs Teggart, and other which was again not disclosed to the claimants, Mr Wilson by letter dated 7 April 2000 wrote to each of the claimants terminating their employment. The letters were written in a similar format. In essence, Mr Wilson, in each letter, referred to the charges which had been originally set out in Mr Hall's letter dated 1 December 1999, together with the additional charges set out by Mr Moore on 25 January 2000. The letters, in respect of each claimant, concluded that the explanations offered by each claimant did not justify their behaviour and that each claimant was guilty of the above charges; and that each claimant's employment was to be terminated with effect from 12 April 2000. The letter then went on to refer to the right of appeal to the Northern Ireland Civil Service Appeal Board.
- .21 Under the disciplinary procedures relied upon by the respondent, at the time of these events, the claimants' only basis for appeal was to the Northern Ireland Civil Service Appeal Board (the Board). There was no other internal appeal procedure provided to the claimants.
- .22 Hearings were then arranged by the Board. A hearing was arranged to hear the appeal of the second claimant on 26 June 2000; a further hearing was arranged to hear the appeal of the first claimant later on 26 June 2000. The third claimant's hearing was arranged for 27 June 2000. In the event, the appeals of the first and third claimants did not proceed and were not heard by the Board. This was on the basis, as set out in a letter sent to both the first and third claimants by the Board, that the same Appeal Board, which had been due to hear their appeals, had already upheld the appeal of the second claimant and found his dismissal to be unfair; and as the claimants, who were part of a work team, were dismissed for the same or similar reasons it had been agreed by the Board, the respondent's representatives and the first and third claimants' representatives that there was no need to proceed with the hearing of the appeal of the first and third claimants, as their appeals would also be seen to be unfair in the similar circumstances. For the purposes of these appeals, Mr Albert Mills, a trade union representative, represented the first and second claimants and Mr S Doherty, Solicitor, represented the third claimant.
- .23 The Tribunal is satisfied that, during the course of the appeal hearing before the Northern Ireland Civil Service Appeal Board, an issue arose about whether the correct disciplinary procedures had been followed by the respondent in these matters. It seems that the Board were not satisfied that the procedures adopted, as set out above, were the correct procedures; and itself made reference to a set of procedures, which applied to non-industrial staff.
- .24 Following receipt of the decision and recommendation of the Board by the respondent in relation to the appeals of each of the claimants, the respondent decided not to accept, in each case, the Board's recommendation of reinstatement. The claimants were informed of the decision by letter dated 15 August 2000.
- I had recommended their dismissal on the basis of thorough investigation, even before additional charges were raised by the line manager with them, and by meticulously using the disciplinary procedures which I had been trained in and had previously used. It is my understanding that industrial staff and their TUS would have been aware that these procedures were as instructed by industrial personnel to Roads Service.
- There remains clear evidence that fraud had taken place eg claiming for work not done ie mountain and other roads.
- There were threats made by at least one of them to members of staff while investigations were ongoing.
- Existing foremen and staff have investigated/reported on their findings and at least one of them has said that they could not remain at the depot if they were to be reinstated.
- These have been the first dismissal cases (there have been 4 earlier plus 3 resignations prior to the investigations during my time as Area Engineer ie since 1994) which have indicated that my recommendations/our actions may not have been correct.
- There is still some considerable doubt as to what are the correct disciplinary procedures, and it could be the procedures used were in fact correct.
- .25 In light of the respondent's decision not to accept the Board's recommendation to reinstate the claimants, the Board then considered the payment of compensation. There was no further hearing before the Board; but the parties were invited to make submissions and, in particular, on the issue of contributory fault/culpability. The Board then made an award of compensation to each of the claimants. As the Tribunal will have to consider the issue of remedy, in light of this decision as set out above, it therefore does not consider that at this time it is appropriate to consider further the details of the calculation made by the Board. Indeed, it was recognised by the parties' representatives, at this hearing, that the issue of remedy would be a matter for the Tribunal to determine, in light of its decision.
- .1 In relation to the claims of unlawful discrimination on the grounds of religious belief, each of the claimants contended that in dismissing them, as set out above, in the preceding paragraphs, they had been less favourably treated in comparison with certain employees who are Protestant.
- .2 The first claimant compared himself with an employee of the respondent, Alan Truesdale, a Protestant who was a foreman/trained mechanic. In or about 1995 he was the subject of a disciplinary procedure in relation to the following charges:-
- .3 The second and third claimants also compared themselves, as set out in the preceding paragraph, with Mr Truesdale. However they also compared themselves with a further three employees, who are all Protestant, and who were also the subject of the disciplinary procedure but were not dismissed - namely, Robert McSpadden, David Herron, Charles Mees.
- .4 The Tribunal was also given limited details relating to a number of Protestants who had been dismissed by the respondent from in or about September 1998. One had been dismissed by Mr Moore for claiming travel expenses when he had not used his car. Another employee was dismissed for claiming for a bonus for work not done. A third employee was dismissed by Mr Wilson for theft of diesel from the depot. A fourth employee was dismissed, having been found to be inefficient on the basis of sick absences. A further employee, whose religion was not determined, was dismissed for claiming for work not done.
- .5 The respondent's managers who took the various actions and decisions in relation to the dismissal of the claimants, as set out previously, all denied that the religious belief of the claimants played any part in their actions and decisions.
- .1 The claims of the claimants of unlawful discrimination on the grounds of religious belief were brought pursuant to the Fair Employment & Treatment (Northern Ireland) Order 1998 (the 1998 Order).
- .2 The Tribunal therefore, following the said guidance, recognised it was necessary, in light of the facts as set out in paragraph 4 of this decision, to firstly identify whether the claimants had established facts from which the Tribunal could conclude, in the absence of an adequate explanation, as defined, that the respondent had committed an act of unlawful discrimination, contrary to the provisions of the 1998 Order. In so doing, the Tribunal was careful to note that, since the wording of Article 38A refers to could, it was not at this stage required to reach a determination that such facts would lead to a finding of unlawful discrimination. In addition, it had to be assumed at this stage that no adequate explanation for the discrimination existed.
- .3 Under Article 3(2) of the 1998 Order, it is provided:-
- .4 When determining whether in making comparisons between how the claimant was treated and how the claimant should have been treated, it can often be difficult to ensure there is a comparison - "like with like". It is not required that all the circumstances must be identical as between them. It is only necessary that the relevant circumstances are not materially different.
- .5 The claimants are Roman Catholic and each of their comparators are Protestant. It is also correct that each of the claimants were found to have committed a disciplinary offence and were dismissed; whereas the comparators of each of the claimants were not dismissed, albeit they had also been found to have committed disciplinary offences. The bare facts of such difference in religious belief and difference in treatment was, in the Tribunal's opinion, only sufficient to indicate a possibility of discrimination (see Madarassy -v- Nomura International).
- .1 Each of the claimants claim that they were unfairly dismissed.
- .2 The Tribunal is satisfied that the respondent had shown that the reason for the dismissal of the claimants by it was the conduct of the claimants as set out in the letter of Mr Wilson dated 7 April 2000 sent to each of the claimants terminating their said employment with the respondent.
- .3 However, it was also necessary for the Tribunal then to have regard to the provisions of Article 130(4) of the 1996 Order, which states:-
- .4 In considering these issues, the Tribunal had particular regard to the guidelines set out in the leading case of British Home Stores Limited -v- Burchell [1978] IRLR 379 where it was stated:-
- .5 The Tribunal at all times was conscious that it must not substitute its own view, but rather consider the reasonableness of the actions of the respondent and whether, in particular, the actions of the employer could be considered to have fallen within the band of reasonable responses which an employer might have adopted. The Tribunal also noted that the said band of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. (see Iceland Frozen Foods Ltd -v- Jones [1982] IRLR 439 and Sainsbury Supermarkets Ltd -v- H I T T [2003] IRLR 23)
- .6 Regardless of the fact that the disciplinary procedure relied on by the respondent was in fact incorrect and the 'new' procedure, which was introduced in 1998 for use by the respondent but not in fact applied by it, both procedures provided for an external system of appeal - namely to the Northern Ireland Civil Service Appeal Board. Thus, whatever procedure was applied, the appeal was to the Northern Ireland Civil Service Appeal Board, the independent body which considers appeals from industrial staff, such as the claimants; but also many other groups of civil servants employed by a variety of government departments. In paragraph 3.21 of this decision, the Tribunal has set out, in brief terms, the historical background to this system of appeal; which, in the Tribunal's opinion, appears to be an agreed appeals procedure and is supported by the relevant trade union representing employees of the civil service, such as the claimants. The Tribunal also noted that although this appeal procedure commenced, prior to the industrial relations legislation which introduced industrial tribunals, the procedure was retained after that date. Such an external appeal process is, in the Tribunal's experience somewhat unusual - with most employers providing some form of internal appeal procedure, even if there is also an external appeal procedure provided. Under the procedure, as set out previously, if the appeal board decides the decision is unfair, it only recommends to the Head of the relevant department (in this case the Permanent Secretary of the respondent), that the appellant should be re-instated. Significantly, in the Tribunal's opinion, if such a recommendation is made it is for the head of the department to decide whether or not to accept the board's recommendation and any such decision made by the head of the department is final. There is no provision, set out in any of the said procedures, to allow an appellant, the subject of any decision by the Head of a Department not to accept such a recommendation, any input whatsoever into the Head of the department's decision making process; nor is he given any opportunity to challenge in any way such a decision. It has to be acknowledged that all of the respondent's disciplinary procedures made clear that, in addition to the appeal to the Board, an employee may exercise his legal right to make an application to an industrial tribunal.
- .7 The Tribunal is conscious that these claims of the claimants require to be considered under the legislative provisions which existed prior to the introduction of the statutory disciplinary grievance procedures. This was introduced in or about April 2005 and resulted in consequential amendments to the 1996 Order. In particular, in the law of unfair dismissal, where it has been determined that there is a breach of the said statutory procedures by the employer, a dismissal can be found to be automatically unfair and there can be consequences for compensation awarded. The said statutory disciplinary and grievance procedures set out detailed provisions relating to appeals and their conduct. It is not necessary for this Tribunal to determine whether the system of appeal, adopted in this matter, would comply with these new requirements. However, the Tribunal, in light of its decision in this matter, is of the opinion that the present appeal procedure may require to be considered further by the respondent in light of the new requirements. If considered necessary, it may require to be revised and/or amended, as appropriate.
- .8 The respondent's representative drew the Tribunal's attention to the case of East Hertfordshire District Council -v- Boyton [1977] IRLR 347. In Harvey on Industrial Relations on Employment Law volume 1 section D 1 graph 1519 this case is referred to as authority for the proposition - "where an employer carries out his enquiry in accordance with procedure agreed with the unions, it will be extremely difficult indeed for the employee to allege successfully that the investigation is insufficient or inadequate or fails to meet the standards of the code of practice or natural justice". The employee, a refuse collector, was dismissed for fighting. Two other collectors signed a statement that he had made an unprovoked attack on a third collector. There was an appeal, in accordance with an agreed appeals procedure; under which an employee had the right to be represented, call witnesses and cross examine any witnesses for the employer. Neither at the original hearing nor on appeal had the employer ensured the other collectors were called. The Tribunal found the dismissal unfair; but this was overturned on appeal by the Employment Appeal Tribunal. It has to be remembered that this case was on its own particular facts and also was determined at a time when procedural matters did not play such an important part, as they do today, in relation to whether a dismissal is fair or unfair.
- .9 In a recent decision, the Court of Appeal in England and Wales has considered the issue of appeals; and, in particular, the issue of the differences which have emerged, in the authorities, between whether the defects which had occurred in an original disciplinary hearing leading to dismissal could be "cured" on appeal, if the appeal was by way of a review rather than a re-hearing (see Taylor -v- OCS Group Limited [2006] IRLR 615). In the course of the judgment, the Court of Appeal made it clear that such distinctions were not relevant but rather; - "what matters is not whether the internal appeal was technically a re-hearing or review, but whether the disciplinary process, as a whole, was fair. The task of the Tribunal is to apply the statutory test and, in doing so, they should consider the fairness of the whole (Tribunal's emphasis) of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. Their purpose in so doing will not be to determine whether it amounted to a re-hearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, thoroughness or lack of it of the process and the open-mindedness (or not) of the decision maker, the overall process was fair, notwithstanding any deficiencies at the early stage".
- .10 The Tribunal was surprised that, despite the endeavours of both Counsel, for which it was very grateful, the procedure, whereby the Northern Ireland Civil Service Appeal Board did not have the power to require the employer to give effect to its decision to recommend re-instatement, and further the Permanent Secretary could reject such a recommendation, did not appear to have been the subject of much legal authority.
- .11 Having regard to the nature of the charges in this matter and, in particular, those relating to duplicate claims/claims for work not done, the respondent clearly considered these charges amounted to fraud, albeit that was never expressly stated to them; and further that fraud was committed by the three claimants, as part of some form of joint enterprise in which they were all equally involved and guilty, regardless of their specific involvement in the actual paperwork the subject matter of the said claims. The Tribunal had regard to the recent decision of the Court of Appeal in England in the case of Strouthos -v- London Underground Limited [2004] IRLR 636.
- .12 In the case of Strouthos, referred to above, the Court of Appeal also acknowledged that a tribunal was entitled to take into account the fact that the applicant had been employed for twenty years with no relevant previous warnings. It was held that the length of service was a factor which could be properly considered in deciding whether the reaction of an employer to an employee's conduct was an appropriate one. But it equally recognised that there could be conduct so serious that, however long an employee had served, dismissal was an appropriate response. It depended on the particular circumstances and in each case, whether dismissal was an appropriate response, would be a matter of judgment.
- .13 In relation to the issue of contributory fault, which the Tribunal was asked to consider as part of this decision on liability, the Northern Ireland Court of Appeal, in the case of Morrison -v- A T G W U [1989] IRLR 361 set out the following principles for determining such an issue, namely
- .1 The Tribunal had a number of serious concerns about the way in which the actions alleged against each claimant, and the subject matter of the said gross misconduct were investigated and the disciplinary process used against each claimant was conducted.
- .2 Each of the claimants were interviewed by Mrs Teggart on 24 November 1999, contrary to the disciplinary procedures which should have been in operation at that time; but had not been introduced by the respondent. In particular, the claimants were not informed of their right to remain silent and/or to be assisted by a trade union representative or colleague of their choice. These were clearly important procedural safeguards, which were not given to the claimants, as was recognised by the appeal board in their detailed decision in relation to the appeal of the first claimant. In the event, each claimant made a response which was relied upon in relation to the charges sent to each of them in the letter dated 1 December 1999 by Mr Hall. Like the appeal board, the Tribunal fully recognised the need for an employer to make preliminary enquiries before considering formal charges. However, in doing so, where such responses are going to be relied upon, the right to remain silent must be clearly set out but also made clear from the outset of the interview and the context in which the interview is taking place. Mrs Teggart, before conducting the interviews, did not set out the context and it was only, after having obtained the response from each claimant, that she informed each claimant this was a serious matter and a report will be passed to John Hall and disciplinary procedures might follow. In the Tribunal's opinion, this should have been stated at the outset and then their response sought to the various questions, having been reminded before doing so of their right to remain silent and to be assisted by a trade union representative/colleague of their choice. The documents prepared by Mrs Teggart, and clearly relied upon by the respondent in formulating the charges, were not produced to the claimants. Indeed, this failure to produce relative documentation to the claimants and/or their advisors was a constant feature throughout this disciplinary procedure and is central to the Tribunal's decision.
- .3 Each of the claimants were sent a letter on 1 December 1999, setting out the various charges. After seeking their response they were invited to attend a disciplinary interview on 15 December 1999. Whilst it had indicated the alleged behaviour was considered to be serious, the letter did not make reference anywhere to the possibility that the behaviour might be considered to be gross misconduct and dismissal might be the ultimate outcome. Whilst the claimants may have had some understanding of this possibility, this does not obviate the failure to set it out clearly to them, prior to any such hearing. Given the limited reading and writing abilities of the first and third claimants this failure was even more serious. Crucially, in the Tribunal's opinion, the claimants were not sent or shown either before or at the time of the interview any of the supporting documentation/evidence which Mr Hall was relying on in support of the said charges.
- .4 From the outset of the disciplinary process, including the interview with Mrs Teggart, the claimants claim that, in relation to the charges about taking vehicles home and/ or not reporting back to the depot that they were, in essence, following longstanding custom and practice, which was accepted by management at the depot. The Tribunal recognises that Mr Hall did make some enquiries in relation to this response, which disputed the contentions of the claimants. In essence, all those involved in the disciplinary procedure were not prepared to give any credence to what had been stated by the claimants as to the custom and practice. However, the appeal board, as set out in their detailed decision, in relation to the appeal of the second claimant, recognised there was lack of clarity on the part of the respondent in relation to the respondent's policy for staff in relation to the issue of taking vehicles home and not reporting back to the depot. In the Tribunal's view, having regard to the finding of the appeal board, it is satisfied that there was a lack of proper investigation, in relation to these matters, which, if properly carried out, would have revealed the above lack of clarity in relation to the respondent's policy on these matters and as found by the appeal board.
- .5 Given the nature of the serious charges relating to the duplicate claims/work claimed for and not done, the Tribunal believes that it was essential, as a minimum step, that the claimants were given all the relevant paperwork relied upon by the respondent in support of these charges and, in particular, the evidence of the various inspections referred to and set out in the charges. This was not done at any stage of the disciplinary process. In such circumstances, the claimants could not have been expected to respond properly. These documents were important parts of the evidence in support of the charges made against them. In the circumstances, the claimants did not have an opportunity to properly dispute the evidence and argue their case. The Tribunal was also very conscious that, given the nature of the claimant's work, which involved work on a variety of roads and individual parts thereof, the obtaining records of inspections specifically carried out to support the charges would be fundamental in any defence of the matter. Such information was not given to the claimants at the hearing, before Mr Hall, or indeed subsequently.
- .6 The Tribunal in its findings (see further paragraph 3.8) has set out, in some detail, the failures of Mr Hall in conducting the disciplinary hearing of each claimant. As the appeal board in its finding correctly noted, it is necessary in disciplinary cases for facts to be clear and as far as possible undisputed. The manner in which Mr Hall conducted the disciplinary hearing failed to take the steps necessary to achieve the above purpose. In particular, it was clear there was doubt/lack of clarity what were the particular roads, the subject matter relating to the charges of duplicate claims/work not done - but yet no relevant documentation was supplied to the claimants.
- .7 It is correct that following the disciplinary hearing, Mr Hall obtained further information in relation to the charges arising out of what had been said by the claimants - insofar as they were in a position to do so on the information provided. Again this further information, which was in the form of written memoranda, was never produced to the claimants.
- .8 Although Mr Hall concluded that he considered the claimants had committed a number of disciplinary offences, which he considered to be gross misconduct and further recommended, in a memo to Mr Moore, in respect of each claimant, dismissal; at no time did the claimants get a copy of the said memo nor any of the supporting documentation relied upon by Mr Hall and provided to Mr Moore. He included in his memo to Mr Moore, inter alia, minutes of the previous hearing and the various documentation which he had obtained since the start of the process in support of the charges made. The recommendation did not specify all the precise disciplinary offences; though it was implicit he was referring back to the original charges set out in his earlier letter. However, this memo also made clear that, in Mr Hall's opinion, there was collusion on the part of the claimants together with the allegations of fraud. This had never been set out to the claimants or stated to them. Indeed, these specific allegations were never put to the claimants in any subsequent disciplinary hearing. The memoranda also set out the reasons for his recommendations in each case; but the claimants were never given a copy or an opportunity to properly challenge the reasons for his recommendation; insofar as he had set them out in his memorandum.
- .9 The claimants were then informed of further charges of duplicate claims/work claimed for work not done and were informed that all matters would then be considered at a disciplinary hearing before Mr Moore. Again the failures set out above in relation to the earlier charges and the disclosures of documentation were repeated in relation to these charges. In the Tribunal's view, the details attached to the letter were limited and, in particular, failed to provide the backup documentation relied upon to substantiate the charges. This in the Tribunal's view was an essential minimum first step to enable the claimants to contest the charges. The charges related to numerous roads and parts thereof. The schedule, attached, had clearly been prepared from other documentation and the Tribunal could see no good reason why it was not provided to the claimants. The above failure was compounded by the refusal of the respondent to provide any such documentation, when asked to do so by the claimant's then solicitor. In addition, there was a continuing refusal to consider any inspection of the various roads and sites relied upon attended by the claimants. Given the nature of the charges and the work, to which the charges related, the only appropriate way of dealing with such charges was to inspect the various roads visually and compare same with the relevant paperwork. Since the claimants were disputing the charges and even the identity and whereabouts of the particular roads/sites on those roads, in the Tribunal's opinion, the joint inspection sought by the claimants was not an unreasonable request. The Tribunal is satisfied that if such inspection had been carried out it would have very quickly revealed the strength or weaknesses of the claimants defence to the charges.
- .10 Mr Moore commenced the disciplinary hearings; but unfortunately fell ill and had to be replaced by Mr Wilson at reconvened hearings. Mr Wilson received all the above documentation, including the minutes of the hearing from Mr Moore; but these were still not supplied to the claimants before the reconvened hearings.
- .11 The Tribunal is required to consider the fairness of the whole disciplinary process, which included the appeal procedure. The Tribunal had very serious concerns about the appeal process which allowed one party to the appeal, in essence, to ignore the result of that appeal, if it determined it did not wish to follow the recommendations given by the appeal board. In the Tribunal's view, this struck at the very heart of any normal appeal process. It gave the respondent an opportunity to avoid the result of an appeal which it did not like; but which opportunity was not open to the claimants. However, the Tribunal was also very conscious that this was a procedure, which had been agreed with the trade unions and which had been operated for many years in the civil service. The fact that this was an agreed procedure of long standing, in the Tribunal's view, did not prevent the Tribunal coming to the conclusion that such a procedure was unfair to an employee. Given the importance, in modern employment practice of fair procedures, the Tribunal was of the opinion that, in such circumstances, the whole appeal process had to be closely examined to test its fairness; and that the fact that a process was agreed and of long standing could only be one factor in testing that fairness. For the Tribunal, the procedure used in this particular case, was unfair and unreasonable in that it made no provision for the claimants to be able to challenge in any way the decision not to accept the recommendation of the appeal board. In these particular cases, the absence of this provision is of even greater importance because the first and third claimants did not in fact get an opportunity to present their appeals to the appeal board; as it had been decided the result of their appeals would have been the same as the result of the appeal of the second claimant. A consequence of this was that the appeal board did not prepare a detailed decision in relation to the appeals of the first and third claimants.
- .12 Given the respondent's conclusion that the claimants had been guilty of gross misconduct and which, if correct, clearly were very serious matters, the Tribunal could not fault the decision to dismiss in such circumstances - albeit each of the claimants had a good disciplinary record and had long service with the respondent. Such a decision, where the said misconduct had been properly and fairly established would have been within the band of reasonable responses.
- The Tribunal is therefore satisfied for the reasons and in the circumstances set out in the above paragraphs, the actions of the respondent did not fall within the band of reasonable responses which an employer might have adopted. The respondent therefore acted unreasonably in treating the said misconduct of the claimants and each of them as a sufficient reason for the said dismissals of each claimant, and which were therefore unfair.
- .1 As agreed in light of its decision, as set out above, it was necessary for the Tribunal to then consider if either of the claimants contributed to that dismissal and, if so, the amount of any such contribution.
- .2 It was recognised by the respondent that the charges relating to failing to report back to the depot/return of vehicles would not in themselves ever have been sufficient to justify a dismissal. Also, the appeal board clearly found on appeal that there had been a lack of clarity on the respondent's part in relation to such matters and, in the circumstances, the Tribunal did not consider that any issue of contributory fault therefore arose from these matters.
CASE REFs: 00499/00FET
00500/00FET
00501/00FET
00792/00
00793/00
00887/00
00901/00
CLAIMANTS: Peter Downey
John Gerard Adair
John Rice
RESPONDENT: Department for Regional Development
The unanimous decision of the Tribunal is that:-
(1) The claimants and each of them were not unlawfully discriminated against by the respondent on the grounds of religious belief and/or political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998.
(2) The claimants and each of them were unfairly dismissed by the respondent. As agreed, the claims of the claimants will be re-listed for a hearing to consider the remedy to which each claimant is entitled on foot of the above decision.
(3) The second claimant contributed to his said dismissal, the extent of which the Tribunal assessed at ten per cent (10%). The first and third claimant did not contribute to their said dismissals.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr R Barbour
Mr J Pollock
Appearances:
The first claimant was represented by Mr K Magill, Barrister-at-Law, instructed by Rosemary Connelly, Solicitor.
The second claimant appeared in person and was unrepresented.
The third claimant did not appear and was represented by the second claimant.
The respondent was represented by Mr A Colmer, Barrister-at-Law, instructed by Departmental Solicitor's Office.
REASONS
The first claimant commenced his said employment, as a labourer, in or about 1984; the second claimant commenced employment as a labourer/driver in or about 1985; the third claimant commenced employment as a labourer in or about 1977. Prior to the events, the subject matter of these proceedings, each of the claimants had a clear disciplinary record. In or about 1999/2000, each claimant was employed as a Road Worker 2.
Insofar as relevant and material, the claimants were part of a three man squad operating a mobile spraying unit (MSU). The function of the MSU was to carry out, primarily in the summer months, temporary repairs to the carriageway such repairs would have included treating potholes, carriageway cracking, carriageway deterioration and general sealing of the carriageway. This work was mainly carried out on rural roads. When not engaged with the MSU, each of the claimants carried out a variety of other duties for the respondent. The MSU consisted of a mobile 1,200 gallon bitumen tanker and also a lorry containing stone chippings. The work involved heating the bitumen to the required temperature, by using the vehicle's onboard gas heating system, spraying the hot bitumen onto the carriageway using a lance and applying stone chippings using a shovel. The second claimant operated and drove the tanker and was, in essence, the team leader. In particular, he dealt with all the paper work relating to the work carried out by the MSU (it will be necessary to refer to this later in this decision). The third claimant was the lance-man who operated the lance; but also drove the lorry containing the stone chippings. The first claimant was responsible for covering the tar patch with the stone chippings using a shovel.
The first claimant is unable to write, save in the most limited fashion (for example by signing his name); and cannot read and depends upon his wife and family to assist him in reading. The Tribunal is satisfied that this must have been known by the foremen/supervisors and relevant line managers at the said depot.
There was some evidence on the documents presented in evidence by the third claimant that he also had limited abilities in relation to reading and writing and which the Tribunal was prepared to accept. Like the first claimant, the Tribunal is satisfied that the foreman/supervisors and line managers at the depot would also have been aware of his said limitations.
It is necessary, for the purposes of this decision, to set out the principal parts of the said letters sent to each of the claimants. The Tribunal noted the similarity of the wording used in each letter.
The first claimant:-
"It has been drawn to my attention that:-
(1) On Friday 19 November 1999 you did not report to your depot at Castlenavan after completing your days work.
(2) You did not inform your line manager on that day of the reason for not reporting to the depot.
(3) On Wednesday 24 November 1999 you finished MSU treatment on Derryboye Road at about 2.00 pm and spent the rest of the day tidying up.
(4) When interviewed by Carrie Teggart on Wednesday 24 November 1999 you claimed to have worked on the road on the far side of Downpatrick "where the big grain store is" on Saturday 20 November 1999 from 8.00 am to 12 noon. Inspection of this road (Tullynaskeagh Road) by Stephen Forster and John Braniff on Thursday 25 November 1999 showed that this road had previously been treated. Evidence from the job card for the work shows that it was treated on 16 November 1999, 4 days prior to 20 November 1999.
(5) On Saturday 20 November 1999 you were part of the squad which claimed to have treated 7.91kms and used 180 gallons of bitumen binder at Claragh Road, Drumnaghan Road, Newline Road, Drumaroad Road and Manse Road. Inspection of these roads by Stephen Forster and Brendan McLaughlin on Thursday 25 November 1999 showed that these roads were not treated.
(6) On 23 October 1999 you were part of the squad which claimed to have treated 2.24kms of mountain road from Drumnaquoile to Drumkerragh.
(7) On 6 November 1999 you were part of the squad which again claimed to have treated the same stretch of road. An inspection of this stretch of road by Stephen Forster on 29 November 1999 showed that no MSU treatment was carried out.
The Department takes a very serious view of this type of behaviour. Before deciding what action to take I wish to offer you an opportunity to reply to the charges against you as detailed above. Please let me have a written reply by no later than Friday 10 December 1999.
You are further required to attend a disciplinary interview at 3.15pm on Wednesday 15 December 1999 in Castlenavan depot to answer these charges. I would advise you that you have a right to be assisted at this interview by a friend or colleague who may be a trade union representative".
The second claimant:-
"It has been drawn to my attention that:-
(1) On Friday 19 November 1999 and on Wednesday 24 November 1999 you did not report to your depot at Castlenavan after completing your days work.
(2) You did not inform your line manager on these days of the reason for not reporting to the depot.
(3) You failed to return your vehicle to the depot on Friday 19 November 1999 and on Wednesday 24 November 1999.
These incidents, ie, (1), (2) and (3) above were witnessed by your supervisor, Carrie Teggart.
(4) On Wednesday 24 November 1999 you had left your place of work and were at home at 3.15 pm.
(5) On Tuesday 23 November 1999 you collected bitumen at ICB, Ballyhannon Road, Portadown, despite being told by John Braniff, foreman, on Monday 22 November 1999 to continue carrying out MSU work until the tanker was empty after which the operation was to be stood down for the season.
(6) On 23 October 1999 you claimed to have treated 2.24kms of mountain road from Drumnaquoile to Drumkerragh. On 6 November 1999 you again claimed to have treated the same stretch of road. An inspection of this stretch of road by Stephen Forster on 29 November 1999 showed that no MSU treatment was carried out.
(7) On Saturday 20 November 1999 you claimed to have treated 7.91kms and used 180 gallons of bitumen binder on Claragh Road, Drumnaghan Road, Newline Road, Drumaroad Road and Manse Road. Inspection of these roads by Stephen Forster and Brendan McLaughlin on Thursday 25 November 1999 showed that these roads were not treated".
…..
The letter concluded in similar terms to that set out above for the first claimant; but with an interview at 4.00 pm on 15 December 1999.
Third claimant:-
"It has been drawn to my attention that:-
(1) On Friday 19 November 1999 you did not report to your depot at Castlenavan after completing your days work.
(2) You did not inform your line manager on that day of the reason for not reporting to the depot.
(3) You failed to return your vehicle to the depot on Friday 19 November 1999.
These incidents, ie, (1), (2) and (3) above were witnessed by your supervisor Carrie Teggart.
(4) On Wednesday 24 November 1999 you finished MSU treatment on Derryboye Road at about 2.00 pm and spent the rest of the day tidying up.
(5) When interviewed by Carrie Teggart on Wednesday 24 November 1999 you claimed to have worked on the road on the far side of Downpatrick, "where the big grain store is" on Saturday 20 November 1999 from 8.00 am to 12 noon. Inspection of this road (Tullynaskeagh Road) by Stephen Forster and John Braniff on Thursday 25 November 1999 showed that this road had previously been treated. Evidence from the job card for the work shows that it was treated on 16 November 1999, 4 days prior to 20 November 1999.
(6) On Saturday 20 November 1999 you were part of the squad which claimed to have treated 7.91kms and used 180 gallons of bitumen binder on Claragh Road, Drumnaghan Road, Newline Road, Drumaroad Road and Manse Road.
Inspection of these roads by Stephen Forster and Brendan McLaughlin on Thursday 25 November 1999 showed that these roads were not treated.
(7) On 23 October 1999 you were part of the squad which claimed to have treated 2.24kms of mountain road from Drumnaquoile to Drumkerragh.
On 6 November 1999 you were part of the squad which again claimed to have treated the same stretch of road. Inspection of this stretch of road by Stephen Forster on 29 November 1999 showed that no MSU treatment was carried out".
…
This letter also concluded in the same terms as the letter set out above in relation to the first claimant with the disciplinary interview timed to take place at 2.30 pm.
Before conducting these interviews, Mrs Teggart gave no warning or indication that the claimants were being questioned about potential misconduct, which could lead to disciplinary proceedings nor were they offered the right to silence or informed of the nature of any evidence against them. At the conclusions of these interviews she told the claimants this was a serious matter and that a report would be passed to John Hall and that disciplinary procedures might follow.
The interviews with Mrs Teggart took the form of enquiries by her about the matters, which subsequently were set out in the letter from Mr Hall, dated 1 December 1999.
As set out in the letters dated 1 December 1999 inspections were said to have been carried out of the various roads referred to by, amongst others, Mr Forster, the claimants' foreman and following his said inspections he had reported what was set out in the said letters. No documents, including relevant job cards or any other documents relating to the inspections carried out were attached to the letters sent to each claimant by Mr Hall.
There was no dispute that the second claimant filled in the relevant paper work for this claim and not the first and third claimant. Neither the first nor the third claimant signed for or were asked to read the said form before it was submitted by the second claimant. The second claimant said that he had written out this claim form at break time on the morning of 20 November 1999, when the MSU was still working on the Tullynaskeagh Road. He said that he would often have filled in such forms at break time in the morning as a matter of convenience, rather than waiting until the end of the working day. There was no dispute that the MSU never worked on 20 November 1999 at the said roads, the subject matter of the above claim. The second claimant maintained that he had filled out the claim form for these areas in advance as set out above; but in fact they had not subsequently gone to these sites and had finished work for the day at the Tullynaskeagh Road. Whilst the Tribunal might have been persuaded, albeit with considerable hesitation, that the second claimant, with his experience and copies of the relevant documentation relating to the said job in his possession, might have been able to fill in the claim form in advance, with reasonable accuracy; the Tribunal was not persuaded that the form could have been handed in by him, along with a number of other unrelated claim forms, under some form of mistake, in circumstances where he knew that, whatever may have been the intention at the time when the claim form was filled in, the work had not in fact been done and could not therefore be the subject of a legitimate claim. All the claimants were fully aware that the relevant figures set out in these claim forms were ultimately reflected in the earnings which they received from the respondent. The Tribunal further considers that it was not coincidence that the second claimant, on 29 November 1999, informed his foreman of his mistake; after becoming aware form his interviews with Mrs Teggart on 24 November 1999 that the recent activities of the squad had come under some notice. The foreman had apparently initially agreed to retrieve the form; but, in view of the other ongoing investigations at that time, the return of the form was subsequently refused. In the event, in light of the foregoing, the claimants did not receive any monies in respect of the work, the subject matter of the said claim form.
The relevant job cards or records of inspections carried out, the subject matter of the said charges, and/or copies of the records of the interviews carried out by Mrs Teggart or indeed any other documentation which had been seen and relied upon by Mr Hall, as set out in the said letter dated 1 December 1999, were not attached to the letter or shown to the claimants, before seeking their response in writing by 10 December 1999.
The Tribunal noted that, in relation to their responses, the three claimants in relation to those charges relating to their failure to report to the depot and/or failing to return their vehicles, in the case of the second and third claimants, the thrust of their defence was that their actions were in accordance with long-standing custom and practice, which was accepted by the management at the depot. Both the first and third claimants made it clear that, on 20 November 1999, they had been at work on the Tullynaskeagh Road site and had not worked elsewhere that day. Similarly in relation to the charges of claiming for work not done each made it clear that the relevant forms were completed by the second claimant; and there appears to have been a mistake which was outside their control. The second claimant referred to the mistake in the forwarding of the claim form, as set out above.
Under the disciplinary procedures, which were relied upon by the respondent, it is provided that an officer of at least SPTO rank should write to the employees setting out all the charges against him and giving particulars of the evidence supporting the charges. This letter should also offer the employee the opportunity to submit a reply in writing within the specified period and should also set a date on which the employee should report for interview by the SPTO in relation to the disciplinary charges and advising him of his right to be assisted at this interview by a work friend or colleague who may be a trade union representative. The procedures set out a sample letter to be used; and it is clear that Mr Hall's letter dated 1 December 1999 was intended to comply with this provision in the procedures. The procedure also provides that at the interview the SPTO should have another officer in attendance to make a written record of the meeting. If it is considered necessary the employees' supervisor may also be present. However, the procedure stresses that both management and the employee have the right to call witnesses during the interview. The Tribunal noted that, prior to this disciplinary interview, no reference had been made by the respondent to gross misconduct or indeed dismissal nor had the claimants been informed of their right to have witnesses at the disciplinary hearing.
At each disciplinary hearing, Mr Hall read out the various charges set out in the letter which he had sent to the claimants dated 1 December 1999 and gave each claimant an opportunity to respond. Each took the opportunity but, in essence, each reiterated what had previously been stated, in their written response, in relation to the taking of vehicles home and/or reporting back to the depot at the end of the day and that what had taken place was in accordance with custom and practice accepted by management.
Whilst repeating the charge to the first and third claimant in relation to finishing MSU treatment of the Derryboye Road at about 2.00 pm and spending the rest of the day tidying up and which was never denied by either claimant, Mr Hall still failed to show or set out how what had been done constituted a disciplinary offence. In particular he never put to either claimant what had been stated was wrong and that in fact they had not been working, albeit tidying up, as stated in the charge.
Further, each of the claimants continued to contend that, on Saturday 20 November 1999, they had been working on the Tullynaskeagh Road and had not worked on the Claragh Road/Manse Road sites. Further, they did not deny that the work on the Tullynaskeagh Road had been claimed for on 16 November 1999. Further, there was no suggestion that, by returning to the site to complete/finish off the work previously started, a further sum would have been payable to the claimants. There was some difference between the claimants about why it had been necessary to return to the Tullynaskeagh Road on 20 November 1999; when the claim form stated that the work had been completed on 16 November 1999. It was suggested, inter alia, that it was necessary to return to complete/finish off the work and that this had arisen in some way following praise by the foreman, Mr Cunningham, of work done by the claimants and/or to fully complete the work. Indeed, the Tribunal at the conclusion of the matter remained uncertain why the claimants had felt it necessary to return to the Tullynaskeagh Road; but it was equally satisfied that, by doing so, this had not resulted in any further payment to them for work on that site. In the circumstances, it was further satisfied they had not carried out any work on that day on the Claragh Road/ Manse Road sites on 20 November 1999, as set out in the claim form. This was the claim form which the second claimant had sought to have returned to him due to an error on his part, as set out above.
From the minutes of the interview, it was readily apparent that the claimants, and in particular, the first and third claimants, were in some doubt about what particular roads were the subject matter of these particular charges. This, in the Tribunal's view, was compounded by the failure of the respondent to disclose relevant documents and any records to the claimants, including record of the various inspections relied upon. In this context, it also had to be noted the limited abilities of the first and third claimant to read and write.
Contrary to the submissions by each of the claimants, Mr Hall contended that all staff at the depot were specifically asked to adhere by management policy and report back to the depot at the end of the day; and further that vehicles were not to be taken home.
In relation to the fifth charge involving the second claimant, Mrs Teggart sought to clarify what in fact Mr Braniff had instructed the second claimant. She also confirmed that the second claimant had sought, as set out previously, to recover, due to a mistake, the claim form for the other work claimed for on 20 November 1999 on the Claragh Road/Manse Road sites; but she pointed out that this had been done following her interviews with the claimants on 24 November 1999 and she had told them that an interview would take place. Although Mr Hall had received this further documentation/memos it was at no time disclosed to the claimants by him; nor did he seek their response to what was set out therein.
He then set out in respect of each claimant the reasons for his recommendation.
First Claimant
"The reasons for my recommendation are":-
(a) Mr Downey deliberately did not return to the depot on 19 November 1999
and did not give a satisfactory reason for not doing so nor did he inform his line manager of his intention not to return to the depot.
(b) Mr Downey deliberately claimed that the section foreman praised the squad for doing a good job at Tullynaskeagh Road in order to justify the squad's return to that road on Saturday 20 November 1999. The second foreman (Mr Cunningham) has stated that he did not praise/commend the squad for doing the work at Tullynaskeagh Road. I believe this claim was made by Mr Downey deliberately and in collusion (Tribunal's emphasis) with his squad colleagues in an attempt to obscure the fact that a fraudulent (Tribunal's emphasis) claim was made on his behalf by his squad colleague, Mr Adair, for work done on 20 November 1999 on the roads listed at charge 5, this work claim having been made for the purpose of obtaining a bonus payment.
(c) Mr Downey did not admit to having knowledge of paper work completed on his behalf by Mr Adair. I did not accept that he was unaware of the fraudulent (Tribunal's emphasis) claims and claims being made on his behalf, as referred to at charges 5 and 6.
Investigations carried out following the interview with Mr Downey on 15 December 1999 shows that several duplicate claims were made by Mr Downey's squad during the period between August and October 1999 and that claims were made for treatment of roads between July and November 1999 when there is no visual evidence of the work having been done.
Second Claimant
"Reasons for my recommendation are":-
(a) Mr Adair deliberately ignored his supervisor's instruction to return his vehicle to the depot on Friday 19 November 1999.
(b) Mr Adair deliberately claimed to have treated the same 2.24kms of mountain road on 2 occasions for the fraudulent (Tribunal's emphasis) purpose of obtaining bonus payment, when in fact no treatment had been carried out on either occasion.
(c) Mr Adair deliberately claimed to have treated 7.91kms and used 180 gallons of bitumen binder on 20 November 1999 on the roads listed at charge 7 for the fraudulent (Tribunal's emphasis) purpose of obtaining bonus payment when in fact no treatment had been carried out.
Investigations carried out following the interview of Mr Adair on 15 December 1999 shows that several duplicate claims were made by Mr Adair during the period between August and October 1999 and that claims were made for the treatment of roads between July and November 1999 when there is no visual evidence of the work having been done.
During an interview with Mr Cunningham (client foreman) and Mr S Forster he stated that he did not commend the squad for completing an excellent piece of patching work. I have no reason to doubt Mr Cunningham's statement but believed that Mr Adair deliberately and in collusion (Tribunal's emphasis) with his squad colleagues provided me with false information in order to support his claim to have been working on 20 November 1999, "adding the finishing touches" to what he claimed was said to be an excellent piece of patching work.
The third Claimant
"Reasons for my recommendation are":-
(a) Mr Rice deliberately ignored his supervisor's instruction to return his vehicle to the depot on Friday 19 November 1999.
(b) Mr Rice deliberately claimed that Mr Cunningham (client foreman) had praised the squad for an excellent piece of patching work on Tullynaskeagh Road in order to justify the squad's return to that road on 20 November 1999.
Mr Cunningham has stated that he did not praise the squad for doing the work at Tullynaskeagh Road. I believe this claim was made by Mr Rice deliberately and in collusion (Tribunal's emphasis) with his squad colleagues in an attempt to obscure the fact that a fraudulent (Tribunal's emphasis) work claim was made on his behalf by his squad colleague Mr Adair for work done on 20 November 1999 on the roads listed at charge 6, this work claim having been made for the purpose of obtaining bonus payment.
(c) I do not accept Mr Rice was unaware that the fraudulent (Tribunal's emphasis) claims were made on his behalf as referred to at charges 6 and 7.
Investigations carried out following the interview of Mr Rice on 15 December 1999 shows that several duplicate claims were made by Mr Rice's squad during the period between August and October 1999 and that claims were made for the treatment of roads between July and November 1999 when there was no visual evidence of the work having been done.
"Further to these it has been brought to my attention that:-
(1) There are additional cases between 16 August 1999 and 23 October 1999, when duplicate claims for MSU work had been submitted by yourself as part of a squad - see details enclosed.
(2) There are also additional cases between 3 July 1999 and 13 November 1999 when you were part of a squad which claimed to have treated 44.47kms of MSU work - see details enclosed. Inspection of these roads by Stephen Forster and Mrs C Teggart showed that these roads were not treated.
You are therefore required to attend a disciplinary interview on Friday 4 February 2000 (separate times were set out for each claimant) at the Castlenavan depot.
Each letter also stated that "At this meeting, you will be questioned on the issues raised in Mr Hall's letter of 1 December 1999 and on the additional cases as mentioned above.
You may respond in writing before Friday 4 February 2000, regarding the additional claims.
I would advise you that the right to be assisted at this interview by an associate who may be a trade union representative".
The details attached in relation to these additional charges consisted of a schedule which was very limited in the amount of detail provided; and, in particular, did not set out the detailed backup documentation, which had clearly been used to prepare the said schedule, to identify the said duplicate claims/claims were work had not been carried out, but had been claimed for.
In the letter he referred to the additional charges relating to:-
(a) Duplicate claims.
(b) Claims where there is no evidence of treatment.
In relation to (a) he asked to see relevant job cards/forms signed by the foreman relating to inspection and the diaries of foreman verifying the inspections signed for.
In relation to (b) he sought independent examination of the various roads where it was said no treatment had taken place and which allegations were being vouched for by Mrs Teggart and Mr Forster.
He indicated that he had advised his clients that no interview should take place until these matters had occurred.
The letter was not replied to and the disciplinary hearing proceeded, in front of Mr Moore, on 7 February 2000 attended by the 3 claimants. Mr Doherty was not in attendance.
The issue of the letter from Mr Doherty was raised during the course of the disciplinary hearing with Mr Moore; but Mr Moore rejected Mr Doherty's formal approach.
Mr Moore referred to Mr Hall's recommendation for his dismissal; but still did not provide a copy of same to the claimants and encouraged all the claimants to stay at the disciplinary hearing. The second claimant, on behalf of all the claimants stated that they did not agree to the two new charges; and, whatever words were used, the Tribunal is satisfied that they were clearly seeking further time to prepare their defence in relation to those charges. No further time was allowed.
The Tribunal noted that Mr Moore, as set out in the minutes of the said disciplinary hearing, asked the claimants if they had read all the written charges and were aware of the evidence collated by the Department in support of the charges. The Tribunal noted, that significantly in its view, that there was no reply to this matter set out in the minutes. In any event, as set out above, the Tribunal is satisfied that the claimants had not been provided with all the documentary evidence upon which the respondent was relying before the commencement of this disciplinary hearing.
Unfortunately, Mr Moore fell ill during the course of the disciplinary hearing and it had to be abandoned. It was subsequently arranged that Mr Wilson, Principal Engineer, would conduct the disciplinary hearing instead of Mr Moore. Mr Moore was Mr Wilson's superior; and in normal circumstances Mr Wilson would not have been required to carry out such a disciplinary hearing. Indeed, whilst Mr Wilson had experience of taking part in such disciplinary hearings, he had very limited experience, prior to these events, of conducting such a disciplinary hearing involving serious offences and which required him to determine whether dismissal was the appropriate penalty. A minute of the hearing conducted by Mr Moore was produced, insofar as it had progressed; but again, like the minutes of the previous disciplinary hearing, it was not disclosed to the claimants, in advance of the hearing to be conducted by Mr Wilson. However Mr Wilson did receive a copy of the minute of the hearing with Mr Moore.
In the meantime, Mr Doherty, the solicitor, wrote again to the respondent, by letter dated 21 February 2000, and again sought the documents referred to in his previous correspondence and also the further inspection of the roads, with his clients present.
Mr Wilson replied to the previous correspondence from Mr Doherty by letter dated 13 March 2000 stating, inter alia:-
"You will be aware that disciplinary procedures is an internal process and as such it is not customary to release any documentation to third parties".
He made no response to the request for the further inspections.
Mr Wilson also confirmed in evidence that in writing this letter and refusing requests from Mr Doherty he did so on advice from the respondent's Personnel Department.
Given the continuing failure to produce the documents/reports relied upon by the respondent in relation to each of the charges, it was essential, in the Tribunal's view, that, during the course of the disciplinary hearings that this evidence was put in detail to each of the claimants. Rather, what took place was that Mr Wilson, at best, merely referred to the charges which had been sent to each of the claimants originally by Mr Hall and subsequently by Mr Moore in relation to the additional charges.
In relation to the charges involving failure to report/taking vehicles home, the claimants, in essence, continued to rely on the custom and practice at the depot, as set out before. The more serious charges, which were regarded by Mr Wilson as charges of fraud, albeit it was never expressly stated by him in those terms to the claimants, and relating to the duplicate claims and claiming for work not done, were not put in any detailed manner to the claimants. In particular, there was a failure to go through each allegation in turn, setting out the detailed evidence relied upon by the respondent in support of each allegation. The fact that the first and third claimants had very limited ability to read or write and were not involved in the completion of any of the relevant paper work for these charges did not appear to have been a relevant factor taken into account by Mr Wilson during the course of the hearing.
Despite the seriousness of the charges relating to the duplicate claims and claims for work not done, Mr Wilson refused this offer by the claimants. The second claimant, given his involvement in the paper work, was adamant that on an inspection, attended by the claimants, at the various sites/roads referred to, it would be possible to show whether or not the said charges had merit.
The charges related to many roads over a wide area. Work on any particular road, in relation to some charges involved allegations relating to various items of work along a particular road. Mr Wilson, accepted in evidence to the Tribunal, that such an inspection would have been relevant, if only to show that the claimants' general denial of these charges was not in fact correct. However, in the face of what he had been informed had been ascertained by the line managers/supervisors, on foot of their inspections, and which he accepted without reservation, he was not prepared to entertain the possibility of any such inspection being carried out. In evidence to the Tribunal, the only reason which Mr Wilson could advance for not carrying out such inspections was that he did not have any time and was "up to his neck in work".
Subsequently, at the time of the appeal, as set out later in this decision, the second claimant produced video evidence/photographs, as a substitute for the failure to carry out any inspection in the presence of the claimants.
Similarly, each letter did not attempt to differentiate between the charges and their seriousness, and, in particular, Mr Wilson's view that the charges relating to failing to report and/or taking vehicles home were not, in themselves, sufficient to justify dismissal; but only were so when taken with his findings of guilt in relation to the charges, involving duplicate claims and/or claims for work not in fact done. The letters did not set out his view, it was a combination of all these charges which justified dismissal. The letters further did not set out, in any detailed way, the basis upon which Mr Wilson considered the explanations offered did not justify the behaviour of each claimant. It did not set out why he had reached the conclusion that he had. Each letter, insofar as it set out any basis for the decision, at no time set out expressly that Mr Wilson considered that the claimants, together, had been guilty of fraud, in relation to the charges relating to duplicate claims and/or work claimed for which had not been carried out and/or the basis upon which he considered that the claimants were each guilty of fraud, albeit the first and third claimants had not dealt with the paperwork, the subject matter of any of these charges.
The Tribunal also noted that, in the letter sent to the first claimant, insofar as there was any reference to what had been stated by the first claimant in relation to the charges, there was reference to the first claimant not taking his vehicle home; albeit this was not the subject matter of any charge against him and indeed he was not the driver of either of the vehicles. In relation to the charges relating to the work carried out on the Tullynaskeagh Road the letter merely states, "When I asked if you had completed any paperwork associated with the jobs in question you replied that you had not". Nothing further is stated. Indeed, as set out previously, the first and third claimant had no involvement in any relevant paperwork; but yet, whilst noting what this claimant had said, it does not appear from the letter sent by Mr Wilson that it was taken into account, in any way, in his conclusions about the guilt of the first claimant on this charge. In addition, although the third charge had not featured in Mr Hall's recommendation, dated 18 January 2000 with all its imperfections in wording, it was found to be a charge the first and second claimants were guilty of.
In relation to the third claimant, the reference to what had been stated by him during the course of the hearing, was even more limited but referred, inter alia, to the fact that he had also stated that he was not involved in completion of the paperwork - which, as stated previously, he was not involved in. Again no account appeared to have been taken of this in relation to the finding of guilt, as set out in the said letter.
The letter in relation to the second claimant set out in some more detail some of the explanations put forward by the second claimant in respect of some of the charges, though not his explanation in relation to all of the charges. However, the letter again did not set out why such explanation had been rejected. Indeed, nothing was stated in relation to the second claimant's explanation for the more serious charges, relating to the duplicate claims/claims for work which had not been done.
The Tribunal noted that, although there was evidence before Mr Wilson, at the time of his termination letter, that in relation to charge 5 there had been a misunderstanding with Mr Braniff about his failure to stand down, the letter made no reference to this and the second claimant was still found guilty of the charge. Indeed, in evidence, Mr Wilson accepted this charge should not have been upheld in the letter. In relation to charge 6 and, indeed the additional charges, the amount of bitumen used was very relevant. Reference was made that the second claimant had referred to the various difficulties in calculation of what amount of bitumen had been used. However no reference was made to the detailed figures which had been obtained by Mr Wilson, in relation to the use of bitumen, and which were relied on by him in proof of the said charges. Indeed, at no time were these figures put to the second claimant or any of the claimants.
The Board is an independent body which, as set out in the guidance provided to appellants, is to decide whether the Department's decision to end the employment was fair and whether the proper procedures had been followed. It has a Chairman and two Members; one of the Members comes from a panel nominated by management side, the other from a panel nominated by the trade union side.
The guidance further sets out the procedures adopted by the Board, including the preparation and exchange of statements by both the appellant and Department prior to any hearing. The Members of the Board read the statements prior to the hearing. The Chairman and Board Members are entitled to ask questions to the parties about their statements and, at the conclusion, each side are invited to make closing statements.
The Tribunal was provided with copies of all relevant documents relating to the said appeal, including letters of appeal, the statements of the claimants and the respondent, together with the decision of the Board. No Member of the Board gave evidence to the Tribunal.
In relation to the decision of the Board the guidance provides as follows:- "The Northern Ireland Civil Service Appeal Board was set up on 1 January 1974 as a result of Whitley Agreement and since it inception it has considered cases from certified Northern Ireland Civil Servants. Following introduction of the Northern Ireland Civil Service Appeal Board, new industrial relations legislation include a provision for the setting up of industrial tribunals and remove the need for a Northern Ireland Civil Service Appeal Board since civil servants, like other employees, would be given access to the industrial tribunals. In the event the industrial relations legislation did not result in the UK Civil Service Appeal Board being abolished because of strong representations by the Civil Service Trade Unions. In consequence, the Northern Ireland Civil Service Appeal Board was retained also".
The Board decides whether the decision to dismiss was fair. If the Board decides that it was not, it may recommend to the Head of the Department (in this case the Permanent Secretary) that the appellant should be reinstated or re-employed and, if not, the amount of compensation which should be paid. If the Board considers that some other action is more appropriate, it will recommend accordingly. If a recommendation to reinstate or re-employ is made, the Head of the Department or a relevant officer, authorised by the Head of Department decides whether to accept the Board's recommendation and this decision is final. If a recommendation to reinstate or re- employ is rejected by the Department, the Appeal Board then considers whether to award compensation. At that time, to assist the Board in determining the amount of compensation to be paid, the Department and the appellant are invited to make written representations to the Board, concerning the extent which the officer may have contributed to the dismissal. Any such representations are required to relate only to this issue and not to any other aspects of the case.
The first and third claimants were therefore each informed that the Board had found their dismissal was unfair and further that the Board had recommended that each said claimant should be reinstated to their previous position in the respondent's employment.
As set out above, the first claimant's appeal proceeded to hearing. At the conclusion of same, the Board found that his dismissal was unfair; and further recommended that he also should be re reinstated to his previous position in the respondent's employment. In relation to the decision of the Board, in relation to the second claimant, this decision was provided in writing and set out, in some detail, the history of the matter and contentions of the parties to this appeal.
In its decision, the Board set out its conclusions on four clear substantive issues:-
"(i) Lack of clarity on the Department's side in respect of policy for staff on whether or not they should/could take home vehicles which they use in their daily work;
(ii) lack of clarity on the Department's side in respect of policy for staff with regard to reporting to the office on commencement of work each day and on finishing work in the evening;
(iii) the process employed by the line management at the initial investigation stage of the enquiries ie the interview conducted between line management and Mr Adair on his return to the depot on Wednesday 24 November 1999;
(iv) the procedures followed by the Department in relation to:-
(i) the investigation of the alleged duplicate claims for work made by Mr Adair; and
(ii) the work which the Department claim was never carried out".
In relation to the first point, the Board, after setting out its reasons in some detail, concluded that, while the respondent said they had a clear policy when vehicles could or could not be taken home, the fact that it was not committed to paper had led to confusion. This view was strengthened by the fact that in January 2000 written instructions for staff and risk assessments were introduced; even though this change of policy did not relate specifically to the appeal of the second claimant.
In relation to the second point, the Board concluded that "again policy was vague for staff and it appeared that some staff considered it acceptable to go directly to and from work to home and had, as in the case of the second claimant, been doing so for some time unchallenged. It was only when the events around November 1999 were brought to light that management tried to impose the rules which were obviously not being adhered to up until then". The Board again thought this was an indication of the lack of clarity in policy matters by the respondent.
The Tribunal is satisfied that the main concern of the respondent, upon receipt of the decision, was not in relation to the Board's conclusions on the above policy matters set out at (i) and (ii) above; but rather, in relation to the decision of the Board, on the substantive issues, set out at (iii) and (iv) above.
It is necessary to set out the decision of the Board on these issues in full.
"It is accepted that when incidents involving staff occur it may be necessary to carry out preliminary enquiries where the facts are not clear, before considering formal charges. However in such cases employees who are under investigation should be told orally and in writing of the right to be assisted by a trade union representative or colleague of his/her choice and of the right to remain silent.
It would appear that in this case a "fact finding" interview was held with Mr Adair on 24 November 1999 but that he was not told of his rights.
Formal disciplinary charges were put to Mr Adair on 1 December 1999 and there was a hearing on 15 December 1999. Following this, additional charges were put to Mr Adair on 25 January 2000. A further disciplinary interview was arranged for 7 February 2000 to deal with Mr Downey, Mr Rice and Mr Adair. Unfortunately, the Operations Manager (Mr Moore) who conducted the interview became ill before Mr Adair's case was heard. The papers were passed to Mr Wilson who held a disciplinary interview with Mr Adair on 24 February 2000.
At the Appeal Board hearing it became apparent that in relation to the 2 additional charges in particular there was considerable difference of opinion between Mr Adair and the Department about the facts relating to allegations in duplicate claims for MSU work and claims for work done.
The Department submitted evidence to the effect that inspections had shown that certain work which had been claimed for had not been undertaken, whereas Mr Adair said that the work had been done and he produced photographs and a video to substantiate his case.
Mr Adair also said that he had asked on several occasions to be allowed to accompany management on inspection of the roads in question but this request had been refused. Furthermore, Mr Adair said that he had requested copies of the minutes of the disciplinary hearings and these had been denied to him.
For their part the Department contended they were under no obligation to make these available.
The Board had serious concern about these 2 matters. First, it is important in disciplinary cases for facts to be clear and as far as possible undisputed. Secondly, procedures should contain a provision for those charged with an offence to have an opportunity to record their comments on the note of the disciplinary interview. This did not happen in Mr Adair's case.
Procedures
The Board were satisfied that the Department had taken the correct decision in instigating an investigation into what they considered to be problems with the workforce. However the Board was not satisfied that the procedures followed by the Department were fair for the reasons set out in the section of this report dealing with substantive issues.
This procedure (referred to by the Board) provided, (in contrast to the procedure relied upon by the respondent at the relevant time) that, when preliminary steps/enquiries were taking place, a person who is under investigation should be told, inter alia, orally and in writing of the right to be assisted by a trade union representative or colleague of his/her choice and the right to remain silent; these rights applied whether or not the matter under investigation could lead to criminal proceedings.
It was agreed by the representatives of the parties, at the hearing of this matter, that the above procedure, referred to by the Board was not applicable. These procedures, in fact, apply to non-industrial staff and were never relevant to disciplinary procedures involving the claimants - who were industrial staff for these purposes.
However, it was also agreed, at the hearing, that there was, in existence, a set of procedures for industrial staff, which had been introduced in or about May 1988 for use in the civil service, including the respondent. This was to replace the procedures relied upon by the respondent; but for some reason, which was not clear to the Tribunal, these new procedures had never been introduced by the respondent, nor it appeared by various other government departments. This "new" procedure was in similar terms to the procedure referred to by the Appeal Board. It also made it clear that an employee, who was under investigation, should be told orally and in writing of the right to be assisted by a trade union representative or colleague of his/her choice and of the right to remain silent. As set out previously, the procedure adopted by the respondent in these matters did not have such a provision; and, at the interviews held on 24 November 1999 none of the claimants were told of their said rights as set out above - in particular the right to remain silent and to be assisted by a trade union representative or a colleague.
It is correct to acknowledge that under the "new" procedure, the system of appeal is similar and also provides for an appeal, as set out above, to the Northern Ireland Civil Service Appeal Board.
As set out above, under the relevant procedures of the Civil Service Appeal Board, if there is a decision to reinstate or re-employ and the head of the department decides not to accept the Board's recommendation that decision is final.
In the letters sent to each of the claimants, which were in similar terms, it was stated that account had been taken of:-
(a) the details set out in the respondent's submission to the Board;
(b) the record of the Appeal Board;
(c) the fact that there was nothing in the report of the Board to indicate that the substance of the charges had been disproved.
The Tribunal noted that no account was expressly taken of the submissions of each of the claimants to the Board, save insofar as these were referred to in the decision of the Board. However, in this context, it has to be recalled that the decision of the Board was only sent out in detail in relation to that of the second claimant. The Board did not set out, in any way, any detailed decision in relation to the first and third claimants. Further, no consideration was given to the letters of appeal by the claimants or to the video/ photographs which had been produced by the second claimant at the appeal, as set out above in the Appeal Board's decision.
The said decision not to accept the recommendation was taken at a meeting in early August 2000, lasting approximately an hour, attended by Mr R Spence, the Permanent Secretary of the respondent, Mrs L Brown, the Deputy Secretary and Mr David Gallagher, the Department's Director of Personnel. Formally, Mr Spence took the decision; but after consultation with Mrs Brown and Mr Gallagher. No record was kept of what was said at this meeting or the precise reasons for the decision.
It is important to note at this stage that the claimants were not given any opportunity to make any representations or play any part at this meeting or to have sight of and/ or, if necessary, challenge any documents relied upon by the Permanent Secretary, before the decision was taken by him at that meeting.
The Tribunal is satisfied that, in addition to the documents referred to in the said letter dated 15 August 2000, the participants at the meeting had before them a memorandum dated 25 July 2000 from Mr J Drew, Head of Road Services Direct, to Mr B Crawford, the Director of Engineering - Road Service. This was a detailed document seeking a decision by the Permanent Secretary not to accept the recommendation of the Board to reinstate the claimants. It challenged, inter alia, the conclusion of the Board on the charges relating to the failure to carry out instructions in relation to taking vehicles home/reporting back to the depot.
It referred also to the fact that the respondent had been challenged by the Board about the use of a procedure which was not in fact applicable to these staff; though it also recognised a revised procedure was in force, but had never been introduced.
Particular stress was placed on what it was believed was the focus of the Board, namely on procedural matters rather than on the substance of the charges and also suggested that the issue of fraud appeared to have played no part in the Appeal Board's decision. The memo also stated as follows:-
"13
Consequences of decision
Since the decision there has been something like dismay in the Castlenavan area. Line management at all levels, foremen, PTO, SPTO and PPTO are convinced that dismissal was the correct course of action. If these men are reinstated there is concern that it would be impossible to maintain discipline. The effect on morale and discipline would be severe. A note from the SPTO is attached".
It was not clear from the documents, seen by the Tribunal, what was the document from the SPTO attached. The Tribunal came to the conclusion that this was a document, namely an e-mail, obtained from John Hall, which had been sent to Mr Moore and copied to Mr Drew. Having regard to its contents, as set out below, it was clearly the basis for the conclusions set out above in paragraph 13. This e-mail (dated 20 July 2000) was obtained by the second claimant. It has to be noted that Mr Hall was the person who had initially set out the charges, held the meeting on 15 December 1999 and had recommended to Mr Moore that each of the claimants should be dismissed. Despite his said involvement, as set out above, he was invited to send the e-mail, which set out the following. This was after the conclusion of an appeal which had found the dismissal to be unfair and had recommended reinstatement.
He stated, "Further to your call yesterday, I wish to confirm that I could not willingly accept the return to employment of the 3 number industrials concerned. My reasons are as follows:-
Despite the content of the e-mail, the claimants were never given any opportunity to challenge the contents and, in particular, the very serious allegation that there were threats made by at least one of the claimants to members of staff while the investigations were ongoing.
Indeed, in the course of evidence before the Tribunal, the Tribunal was not given any detail about this threat nor where the information, the basis for it, had been obtained. It was a particularly serious allegation and, in the Tribunal's view, highly prejudicial to the claimants.
The Tribunal is satisfied that at the meeting, at which the decision was taken not to accept the recommendation of the Board, there was not any detailed consideration of these matters. Indeed, in the time available, it would not have been possible to do so. Whilst there was an acceptance that there had been procedural irregularities, the conclusion of those attending the meeting was that the substance of the respondent's case and the substance of the allegations made against each of the three claimants had not been disproved in any shape or form and that the Appeal Board, having found the procedural failings, had not come to conclusion on the charges themselves. It was concluded that, although the respondent accepted the decision was unfair and that there had been procedural irregularities, the Appeal Board had not expressly dealt with the individual charges; and that, regardless of the foregoing, the charges of fraud, in particular, still stood and that, in such circumstances, reinstatement was not appropriate. As set out in the recommendation by Mr Drew, it was decided the recommendation of the Board to reinstate should not be accepted. In this context, in deciding not to accept the recommendation of reinstatement, account was also clearly taken of the reaction of those who had taken the view, regardless of the determination of the Appeal Board, that the claimants were guilty as charged. It was further clear that, in deciding not to accept the reinstatement of any of the claimants, that the claimants were being taken as equally guilty of the fraud charges. This was regardless of the fact that the first and third claimants had no part to play in the paperwork, had difficulties in reading and writing and the allegation of their joint involvement in this matter had never been properly addressed by the respondent during the course of the disciplinary procedure. It was clear, from the evidence of Mr Gallagher, that the view that was taken at the meeting was that all three members of the team were equally guilty of these fraud charges; and that, although the first and third claimants may not have played any direct part in the paperwork, the subject matter of the disputed claims, they must have known what was going on. This appeared to be based on the fact that, in the experience of Mr Gallagher at least, that persons such as the first and third claimants would always have known the sums to which they were entitled to at the end of any week, regardless of their inabilities to read or write. He therefore concluded, knowing this, they must equally have known that they were getting sums in excess of what they might have expected, given their work completed. The second and third claimants therefore must have been aware duplicate claims had been made or claims for work not done even if they had not been involved in the specific paperwork for each said claim. At no time, throughout the disciplinary process was this ever put to the first and third claimants; nor were they given an opportunity to challenge this conclusion reached by Mr Gallagher and accepted by the others attending the meeting.
However, as the Tribunal was asked to consider, as part of its decision on liability the issue of contributory fault; of the claimants, it is correct to state that the Board made an assessment, in relation to the issue of contributory fault/culpability; after receiving submissions, from the respondent, that each of the claimants were 100% responsible for their dismissal and, from the claimants, a denial that they were in any way responsible. The Board did not give any reasons; but it assessed that a deduction of 25% was fair and equitable in the case of the first and third claimants and 50% in the case of the second claimant. In the absence of any reasons for its said decision on the issue of contributory/culpability, the Tribunal did not find the decision of the Board, on this issue of any assistance or relevance.
(a) misappropriation of granite kerb stones;
(b) unauthorised use of departmental vehicles to load and carry the kerbs.
He was down-graded to basic craftsman and given a formal written warning. In 1993 he was away from work without permission for a period of 2 hours and was given an informal warning.
In or about 1990 Mr McSpadden was driving a vehicle owned by the respondent and caused the vehicle considerable damage due to his negligence in driving without due care and attention and at an unsafe speed. He was given a formal warning and given a monetary penalty of £30.00.
In or about 1992 Mr Herron was given a formal warning for overloading his vehicle.
In or about 1996/67, irregularities were discovered in the store at Castlenavan, where Mr Mees was a storeman. There was a police investigation, which resulted in no further action. Following his admission that he had borrowed two files and a bottle of glue for use at his home, albeit mistakenly on his part, he was given a final formal warning.
The persons taking the decisions against the claimants did not take the decisions above in relation to any of the said comparators.
None of the employees referred to above were employed at Castlenavan.
Although the originating applications were presented in this matter in or about 2000, the provisions of the Fair Employment & Treatment Order (Amendment) Regulations (Northern Ireland) 2003, which came into operation on 10 December 2003 applied to these proceedings by reason of the transitional provisions contained in Regulation 2 of the said Regulations.
Regulation 24, in particular, amended Article 38 of the 1998 Order in relation to the burden of proof applicable to these proceedings - by the insertion of Article 38A, which states as follows:-
"Article 38A
Where on the hearing of a complaint under Article 38, the complainant proves the facts from which the Tribunal could (Tribunal's emphasis), apart from this Article, conclude in the absence of an adequate explanation that the respondent -
(a) has committed such discrimination or harassment against the claimant, or
(b) is by virtue of Article 35 or 36 to be treated as having committed such an act of discrimination or harassment against the complainant.
The Court shall (Tribunal's emphasis) uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act".
In the recent decision of the Northern Ireland Court of Appeal in the case of Brigid McDonagh & Others -v- Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA3 the court approved the earlier decision of the English Court of Appeal in Igen -v- Wong [2005] IRLR 285. The case of Igen -v- Wong had considered provisions equivalent to Article 38A of the 1998 Order; and had also approved, with amendment, the guidelines set out in the earlier decision of Barton -v- Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332. The Court of Appeal in the McDonagh decision confirmed that it was necessary for a tribunal to go through a two stage decision making process if a complaint of unlawful discrimination was to be upheld.
"The first stage required the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination against the complainant. The second stage (which only came into effect if the complainant had proved those facts) required the respondent to prove that he did commit or if he is not to be treated as having committed the unlawful act, if the complaint is not to be upheld".
The Court of Appeal also confirmed that the amended Barton guidance, as to the correct approach to be taken to the incidence of the burden of proof, applied to a case of unlawful discrimination pursuant to the 1998 Order, as well as to all other forms of unlawful discrimination.
In the recent decision of the English Court of Appeal in the case of Madarassy, Nomura International PLC [2007] EWCA Civ 33, a case of sex discrimination, in considering the issue of what is meant by the use of the word "could" the Court confirmed that "the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination".
Further Lord Justice Mummery in the Madarassy decision stated:-
"Could conclude" in section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment from the reason for the differential treatment. He would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.
"A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if -
(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons; or
……".
Under Article 3(3) of the 1998 Order, a comparison of the cases of persons of different religious belief or political opinion under paragraph 2 must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
In the decision of the House of Lords in the case of Shamoon -v- Chief Constable to the Royal Ulster Constabulary [2003] IRLR 287, a case of sex discrimination, Lord Rodger held that the relevant circumstances are "those which the alleged discriminator takes into account when deciding to treat the woman as he does when deciding to treat the man as he treats, or would treat, him. If an employer dismissed a woman because she is persistently late for work over a three month period, then the relevant circumstances will be her persistent lateness over a three month period. The employer's treatment of the woman must be compared with how he treats or would treat a man in the same or not materially different circumstances ie where he has been persistently late for work over a three month period".
In considering, following the guidance set out in Igen -v- Wong, whether it could conclude, in the absence of an adequate explanation, that the respondent had committed an act of unlawful discrimination the Tribunal had to consider whether the disciplinary offences of the claimants and those committed by the comparators, who were relied on by the claimants, were comparison of "like with like". In the Tribunal's view, none of the comparators were charged with the same or similar disciplinary offences.
The offences of not reporting back to the depot and/or driving the vehicle home did not provide a relevant comparison, from which a finding of unlawful discrimination could be established, with any of the offences of the said comparators.
In the Tribunal's view, in relation to the remaining offences of making duplicate claims or claiming for work that had not been done, none of the said comparators were found to have committed such offences. The offences of Mr Truesdale involved misappropriation of granite kerb stones/unauthorised use of departmental vehicle to load and carry the kerb. In the Tribunal's view, these offences were not the same as the offences of the claimants, although they also involved an element of dishonesty, the relevant circumstances relating to such dishonesty were materially different.
In the case of the other comparators relied upon by the second and third claimants, the offence of Mr McSpadden related to damaging the respondent's vehicle, due to his negligent driving and the offence of Mr Herron, related to overloading of his vehicle. In the Tribunal's view, the offences were not the same and were materially different and did not provide a relevant comparison from which the finding of unlawful discrimination could be established. Having regard to the offence of Mr Mees, he was disciplined for borrowing some equipment, mistakenly, for use at home following discovery of irregularities in the store for which he was responsible, following a police investigation, but there was no finding that he had committed theft or indeed any finding of dishonesty. Again, in the circumstances, the Tribunal did not consider that the offence of Mr Mees provided the necessary comparison of "like for like" with the disciplinary offences of the claimant.
So, in the circumstances, the Tribunal did not consider that the first, second or third claimants had established facts from which the Tribunal could conclude the respondent had lawfully discriminated against the claimants. In light of this finding, it was therefore not necessary for the Tribunal to consider the second stage of the decision making process, as referred to by the Court of Appeal in the recent case of McDonagh -v- Samuel Thom t/a The Royal Hotel Dungannon.
Under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 it is provided:-
(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show -
(a) the reason (if more than one the principal reason) for the dismissal and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) The reason falls within this paragraph if it -
….
(b) relates to the conduct of the employee.
The Tribunal is further satisfied that the conduct referred to, when taken together constituted gross misconduct. If the charges had related only to making duplicate claims/claiming for work not done, the Tribunal would have been satisfied that such conduct amounted to gross misconduct.
"Where the employer has fulfilled the requirements of paragraph (1); the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) should be determined in accordance with equity and the substantial merits of the case".
Indeed it was a consideration of these issues that were the main focus of the hearing before the Tribunal and, in particular, issues in relation to the reasonableness of the investigation, the conduct of the disciplinary hearings and appeals which were carried out by the respondent and procedural matters relating thereto, together with the sanction of dismissal imposed in relation to each claimant.
"In a case where an employee is dismissed because the employers suspects or believes that he or she has committed an act of misconduct, in determining whether the dismissal is fair, the employment tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question entertained the reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct at that time. This involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds on which to sustain that belief. Third, the employer at the stage at which he formed that belief on those grounds, must have carried out as must investigation to the matter as is reasonable in all the circumstances of the case".
In the judgment of Forbes J, he refers to the fact that the employer was following a code of practice laid down and agreed by both sides of the industry - "It was in effect the bible on what should happen. It was not for the tribunal to re-write an agreed of that kind".
In the Tribunal's opinion, this is putting the matter too highly; and, in particular, in light of the practices and procedures which any disciplinary process should have, and which have been approved by the courts in the intervening years. However, the Tribunal does note that, in finding as it did in applying the facts of the particular case, the appeal tribunal made it clear that it was merely determining whether the employer had acted reasonably (ie as required under Section 130(4) of the 1996 Order).
The Tribunal fully recognises that the test of reasonableness is also applicable to this matter. However, in the Tribunal's view, the fact that there was an agreed procedure does not mean in applying that test, that a dismissal applying the agreed procedures cannot be found to be unfair, pursuant to Article 130(4) of the 1996 Order. Undoubtedly, the fact that there is an agreed procedure is a factor which a tribunal must take into account; but, in the Tribunal's view, it cannot be used in the sense of an almost absolute defence, which is a possible interpretation of the decision of the Employment Appeal Tribunal in the East Hertfordshire District Council case - with its reference to the procedures having the equivalence of the bible. To do so, would allow an employer to continue to adopt and follow practices and procedures which are manifestly unfair to an individual employee, whatever may have been the original justification for the adoption of such agreed procedures.
One case was found, namely Adivihalli -v- Export Credits Guarantee Department (UK) EAT 917/97 (Decision of Mr Justice Morrison [President]) [27 March 1998].
In that case, a civil servant employed in the civil service was dismissed for gross misconduct arising out of a fraud in relation to the purchase of a raffle ticket with money advanced to him by his employer. He appealed to the Civil Service Appeals Board, whose procedures/powers were in similar terms to those applicable to the Northern Ireland Civil Service Appeal Board. In the course of its judgement, the Employment Appeal Tribunal considered the effect of the right of appeal to the Civil Service Appeals Board and the provisions relating to that appeal.
"Equally, with great respect to the argument which was put to us, namely that because, under the procedure involving the Civil Service Appeals Board, the Board did not have the power to require the employer to give effect to its decision that there should be re-instatement, its ceased to be an appellate process within the meaning of what was said by Lord Bridge (in West Midland Co-operative Society Limited -v- Tipton [1986] ICR 192 at page 202); a contention which goes much too far. It is true that the appeal board was entitled to allow an appeal or to dismiss an appeal. If it allowed an appeal then it obviously had power to make recommendations. But it was an independent body and it was unlikely, therefore, the various departments would wish to confer on such an independent body the right to compel it to take back employees in whom they had lost confidence. But it does not follow from that that the appeal to the Civil Service Appeals Board was incapable thereby of curing a procedural defect, it would depend.
Having regard to the foregoing authorities the Tribunal, concluded that, in determining the issue of whether the dismissal was fair or unfair, it was necessary for it to consider the whole process, including not only the appeal to the Northern Ireland Civil Service Appeal Board but also the decision of the Permanent Secretary to refuse to accept the recommendation of re-instatement made by the Board.
As Lord Bridge in the above case of Tipton stated, in the course of his judgment, "both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment".
The Court of Appeal held:-
"An employee should only be found guilty of the offence with which he is being charged. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed and that the evidence should be confined to the particulars given in the charge. Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. Where care has clearly been taken to frame a charge formally and put it formally to an employee, the normal result must be that it is only matters charged which can form the basis for a dismissal.
In the present case, the degree of dishonesty and misconduct found by the employers in the course of their disciplinary proceedings was not such that the Employment Tribunal was disentitled from finding that dismissal was outside the range of the employer's reasonable responses. The charge against the applicant did not allege that he had acted dishonestly. It was not alleged that he had taken the vehicle without permission, only that he had taken it abroad without permission. Nor did the disciplinary panel make any finding that he had been dishonest".
In this context, the Tribunal also noted the judgment of Wood (P) in the case of Spink -v- Express Foods Limited [1990] IRLR 320 when he held:-
"It is a fundamental part of a fair disciplinary procedure that an employee with a case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence to produce his own evidence and argue his case".
(i) The Tribunal must take a broad common sense view of this situation.
(ii) That broad approach should not necessarily be confined to a particular moment, not even the moment when the employment is terminated.
(iii) What has to be looked for in such a broad approach over a period was conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable and
(iv) The employee's culpability or unreasonable conduct must contribute to or played a part in the dismissal.
It is the employee's conduct only that is relevant and not that of the employer (see Alders International Limited -v- Parkins [1981] IRLR 68).
The charges set out in the letter sent to each claimant were, in the Tribunal's opinion, badly framed and did not have the necessary precision required. For example, the charges against the first and third claimant relating to the fact that on 24 November 1999 they had spent the afternoon tidying up, following treatment on the Derryboye Road, did not, as subsequently acknowledged at the hearing, amount to any offence; and certainly did not suggest that there was any concern that these claimants had not been doing as they stated - which was the intended thrust of the charges, as agreed by Mr Hall and Mr Wilson, during the course of their evidence to the Tribunal.
Further, in relation to the charges of claiming for work not done/duplicate claims, whilst there may be implications of dishonesty this was not expressly stated nor that the respondent believed each claimant had been guilty of fraud. Issues of fraud and dishonesty are very serious allegations. In the Tribunal's view, given that this was the belief of the respondent, the claimant was entitled to have it set out clearly and the charges precisely framed. At no time, during the disciplinary process was this done. Further, although the second claimant was the team leader and known to have been responsible for the paper work for these charges, again it was never properly set out in the charges the basis for the liability which was being attached to the first and third claimants. Merely to make the charge on the basis that each claimant was part of a squad was not, in the view of the Tribunal, sufficient in the case of the first and third claimants. In this context, it also has to be noted that the first and third claimants had limited liabilities in relation to reading and writing, which was known about by their line managers; but yet no account was taken of this, in particular, in relation to these charges of duplicate claims/claims for work not done, were there was a failure to set out clearly and unambiguously the precise basis on which liability was being attached to them in the circumstances.
The Tribunal in its findings (see further paragraphs 3.14 - 3.19) has set out in some detail the failures of Mr Wilson in relation to his conduct of the disciplinary hearing of each claimant and the decisions taken by him at the conclusion of these hearings. In light of these findings the Tribunal is satisfied that Mr Wilson did not properly investigate the charges against the claimants and, in particular the more serious charges relating to duplicate claims/work not done and further failed to carry out the various steps, as set out in the above paragraphs, which would have enabled the claimants to properly and fairly defend themselves in relation to those charges. The crucial failures, in the Tribunal's opinion, were not only the failure to provide the claimants with all the relevant paper work relied upon but also the failure to allow any form of further inspection involving the claimants. The failure to allow such an inspection by Mr Wilson, albeit he recognised its potential relevance, because he was "up to his neck in work" was not in the Tribunal's opinion a valid and fair reason - not least when the seriousness of the charges is taken into account and the respondent's clear view of what had taken place amounted to fraud. In such circumstances, the Tribunal believed it was incumbent upon the respondent to make the necessary time available. In this context it was also to be noted that none of the claimants had any disciplinary record or indeed come under any notice in relation to their work with the MSU. Each had a long service record. In light of this, their request for a joint inspection was even more relevant and should have been properly considered. There was no good reason for the failure of the respondent to do so.
The failure to carry out such inspections in the face of the claimants' denial of the charges together with the failure to provide the relevant supporting documentation meant that the charges were unable to be properly investigated and there were therefore fundamental and serious procedural failures in the conduct of the disciplinary process.
The Tribunal, in light of its findings (see further paragraph 3.20) also considered that the letters of dismissal sent to each claimant by Mr Wilson were inadequate and failed to properly and appropriately deal with the charges made against each claimant and the reasons for his decision. Each claimant was entitled to have been given a letter which adequately and properly set out these matters - not least having regard to the fact that any appeal was not an internal appeal but had to be made to the external appeal board, to whom detailed submissions were required to be made by the claimants, if they wished to appeal the decision.
The claimants were given no opportunity to see or consider or indeed challenge the memorandum prepared by Mr Drew dated 25 July 2000 (see paragraph 3.24) for the respondent not to accept the recommendation to the appeal board; and which was central to the ultimate decision by the Permanent Secretary not to accept the said recommendation. Indeed, it subsequently transpired that part of the contents of that memorandum resulted from an e-mail obtained from Mr Hall. Mr Hall, it must be recalled, had played a significant role already in the disciplinary process resulting in the dismissal of the claimants. The e-mail included detailed reasons why the claimants should not been re-instated. It is not necessary, in light of the Tribunal's decision, to consider these reasons in any detail. However, it has to be recognised that a 'normal' appeal system often can result in an employee successfully over-turning a decision taken by line management. The line manager in such a case may find it difficult to accept the decision of the appeal (normally by a higher level of management); but that is something he has to do, however difficult that may be. Otherwise, there would be little point in having any appeal system.
In this particular case there was the additional highly prejudicial allegation contained in the e-mail, which was attached to Mr Drew's memorandum that threats had been made by at least one of the claimants (unidentified) while investigations were ongoing. Despite this, the claimants never got an opportunity to challenge any of these matters set out either in the memorandum or the e-mail itself.
The appeal board members did not give evidence to the Tribunal. Certainly the appeal board, in its detailed decision in relation to the second claimant, laid considerable stress on the procedural failures and unfairness of same. These failures undoubtedly had a serious impact on the whole decision making process, including the ascertainment of the facts upon which decisions could be properly taken. The Tribunal did not find it surprising that the appeal board did not find it appropriate, in such circumstances, to make any finding on the substantive charges themselves. Indeed, having found such failures in procedure, the Tribunal did not consider the appeal board could have properly done so. The failures of procedure, outlined by the appeal board, were not, in the Tribunal's view, merely technical failures; but rather substantive failures, in particular, in relation to the charges of duplicate claims/claims for work not done which went to the heart of the whole fact finding process in relation to the said charges brought against each claimant.
Regardless of same, the respondent clearly took the view that, despite the procedural shortcomings and the unfairness of same, the appeal board were not disputing that fraud had taken place. For the reasons set out above, the Tribunal does not consider that that was an appropriate conclusion to make. Crucially, the claimants never got the opportunity to challenge the respondent's interpretation of the appeal board's finding.
There was no opportunity for the claimants to appear before the Permanent Secretary (ie at the meeting in early August involving Mr Spence, Mr Gallagher and Mrs Brown) when all of the failures, referred to above, could have been appropriately and properly dealt with. The discussion at the meeting, at which the decision was taken not to follow the recommendation of the appeal board, did not involve a detailed consideration of the whole disciplinary process or what had taken place at the appeal board. It did not consider the submissions of each of the claimants to the appeal board, save and so far as these were referred to in the decision of the board, nor was consideration given to the letters of appeal by the claimants or to the video/photographs which had been produced by the second claimant at the appeal, as set out above in the appeal board's decision. The recommendation of Mr Drew, which was considered at the meeting was clearly central to the decision of the Permanent Secretary. The claimants got no opportunity to challenge its contents. Indeed the memorandum and the attached e-mail was providing to the respondent a further opportunity to set out its case against the claimants. An opportunity which was taken in the absence of the claimants.
In the Tribunal's view, this failure to give any opportunity to the claimants to properly challenge the refusal of the respondent to accept the recommendation of the appeal board made the appeal process unfair, regardless that it may have been an agreed procedure, which did not give such an opportunity.
The main focus therefore, in relation to any issue of contributory fault, related to the duplicate claims/claims for work not carried out. In view of the substantive serious procedural failures, outlined previously, which go to the heart of ascertaining the facts relevant to the proof of those charges, including, in particular, the failure to provide the relevant supporting documentation/inspection record and/or to allow further inspections involving the claimants, the Tribunal, subject to one matter set out below, was therefore unable to properly consider or reach any conclusion about what extent, if at all, the claimants or each of them had in fact committed such acts. There was the added difficulty to take into account that the first and third claimants had no involvement in the relevant paperwork relating to these charges and the respondent failed to deal in any way with the issue of their culpability in relation to these said charges. Indeed, the Tribunal found itself in a similar situation to that of the appeal board, as set out above, where, due to the said failures of investigation and/or procedure it did not make any determination about the involvement of the claimants, if any in the said charges. Thus, the Tribunal concluded it was not in a position to make any finding of contributory negligence, subject to the one matter set out below, against the claimants or either of them or to assess the amount of any such contributory fault.
In the relation to the second claimant however there was one matter which the Tribunal considered should be the subject of a finding of contributory fault. The second claimant (see further paragraph 3.4) submitted a claim for work done on various roads on 20 November 1999; and which resulted subsequently in the seventh charge made against him. The responsibility for filling out the said form and the making of the said claim to the respondent was that of the second claimant. It was accepted that the team had never worked on that road on that date. The Tribunal was not satisfied that this claim form could have been handed in by the second claimant under some form of mistake. The second claimant knew, when he handed in the form, the work had not been done. He knew that what was set out in a claim form had relevance to what was paid to the team. In the circumstances, the second claimant, by putting in the form as he did, was involved in blameworthy conduct, which contributed/played a part in his ultimate dismissal. His submission of the claim form resulted in the bringing of one of the charges, at the commencement of the disciplinary process. It is correct the second claimant attempted to retrieve the said form and no payment was in fact made to the second claimant or any member of the team. However, the Tribunal is not satisfied that this occurred because he suddenly remembered his mistake; but believes it was because, following the initial interview with Mrs Teggart he knew the activities of the team would come under scrutiny.
In light of what ultimately occurred, in the course of the disciplinary process, the Tribunal came to the conclusion that the second claimant's contribution should be assessed at a modest amount, namely 10%.
Chairman:
Dates and place of hearing: 30 June 2006, 24- 28 October 2005, 2 March 2006, 31 May 2006, 1- 2
June 2006, 26 - 27 June 2006 and 30 June 2006, Belfast.
Date decision recorded in register and issued to parties: