Industrial Tribunals Northern Ireland Decisions

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Cite as: [2002] NIIT 1064_02, [2002] NIIT 1064_2

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1064/02

APPLICANT: Philip Boomer

RESPONDENT: Belfast City Council

DECISION

The unanimous decision of the tribunal is that the applicant's application for interim relief pending the determination of his complaint of unfair dismissal be refused.

Appearances:

The applicant was represented by Mr J Corey, of NIPSA.

The respondent was represented by Mr R G Weir, QC, instructed by the Director of Legal Services, Belfast City Council.

The tribunal considers that reasons in summary form would not adequately explain the grounds for its decision. Consequently, these reasons are given in extended form.

(i) The applicant, Mr Boomer, sought interim relief pending the determination of his

complaint of unfair dismissal against the respondent, Belfast City Council. He alleged that the reason for his dismissal was that specified in Article 136 of the Employment Rights (Northern Ireland) Order 1996, which (shortly stated) relates to dismissal for trade union membership or activities. The respondent council did not deny that he was dismissed. They stated that he was dismissed for gross misconduct, namely his abuse of the council's sick pay scheme, and his failure to comply with instructions from council officers that he should refrain from council related trade union activities during the time he was incapable of work through illness, and during a subsequent period of precautionary suspension.

(ii) The tribunal was satisfied that the application complied with the requirements of Article 163(2) and (3) of the 1996 Order (time limit for application, and the presentation of the appropriate certificate from an official of the applicant's trade union). No issue was taken by the respondent on these points, and it is unnecessary to set out these requirements in full.

(iii) In determining the application, the tribunal heard evidence from the applicant, Mr Boomer, and from Mrs Jill Minne, the respondent council's Principal Human Resources Advisor. It also had regard to the documentary evidence submitted by the parties. It did not find the applicant to be a particularly credible or convincing witness.

(iv) The tribunal finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.

(i) The applicant, Mr Boomer, had been employed by Belfast City Council in various

capacities since 1979. His employment was terminated on 15 May 2002 for alleged gross misconduct, following disciplinary proceedings carried out by the council.

(ii) On 3 July 2000, the applicant went off work on a period of sick leave which lasted until 30 November 2000. He was suffering from a stress related illness, which had followed on difficulties in his domestic and private life.

(iii) For most of his period of employment with the Council, the applicant had been active in trade union activities. He had been a NIPSA representative from 1982, and since 1985 had held Branch Office within the union. He also sat on NIPSA's governing bodies and committees. He was a committed trade unionist. He found Belfast City Council officers difficult to work with, and clearly came into conflict with them. In cross-examination he denied being confrontational, but stated that he was "forceful".

(i) The applicant's alleged conduct while on sick leave caused the Council concern

about the genuine nature of his absence from duty. On 8 December 2000, this led to the initiation of a formal disciplinary investigation under the Council's Disciplinary Procedures, and the placing of the applicant on precautionary suspension. He was informed that he was not permitted to come on to Council property to engage in any activity related to the Council.

(ii) On 7 September 2001, Mr Boomer was informed that a disciplinary hearing would take place on 27 September 2001. This letter set out 3 charges and gave details of the allegations in support of them. The first charge was that he had abused the Council's sick pay scheme by carrying out a number of trade union related activities during his period of sick leave. The details in support of this charge included an allegation that he had appeared at industrial tribunals on 20 November 2000, and again on 21-24 November 2000 to represent applicants in the proceedings. Other details provided related to letter writing on behalf of union members and attendance at meetings in his capacity as a trade union official.

The second and third charges related to breach of instructions on 21 August and 20 September 2000 that he should refrain from Council related trade union activities during his period of illness, and the instruction of 8 December 2000 that during his period of precautionary suspension from duty he should not come on Council premises or engage in any activity related to the Council.

(iii) A disciplinary hearing into these charges was held. It was spread over 10 days from 7 November 2000 until 1 March 2002. It was conducted by Mervyn Elder, the Council's Director of Client Services, and Mrs Minne. It heard evidence from 21 witnesses. Much of their evidence was inconsistent with that of the applicant. This Disciplinary Hearing found the charges proved, and Mr Boomer was summarily dismissed with effect from 15 May 2002.

(i) It is the applicant's contention that the disciplinary proceedings against him were, in

essence, a smokescreen to dismiss him because of his trade union activities. He points to the length of time the proceedings took (they were spread over nine months), the fact that an initial more serious charge of falsification of sick leave was not proceeded with, and the fact that the penalty imposed was disproportionate and not in keeping with that imposed in other similar cases. The applicant also, in his evidence to the tribunal, stated that he had concerns about the impartiality of the disciplinary hearing presided over by Mr Elder and Mrs Minne, but he did not raise these concerns or objections as the outset of that hearing.

(ii) The applicant did not, however, at the disciplinary hearing or indeed before the tribunal, deny some of the details of the allegations against him. In particular he admitted the appearance as a representative before industrial tribunals, on 20, and 21-24 November 2000. He sought to explain this by stating that his last sick line, dated 16 November 2000, expired on 30 November 2000, and that he had requested a phased return to work. However, we found his evidence on this point completely unconvincing. There was no evidence that the council had ever received such a request (though it had allegedly been sent in with his signing-off line which they did receive) and in any event it was not open to the applicant unilaterally to engage in a phased return to work before any such request had received proper consideration by the council. His explanation that he found trade union activity therapeutic was not accepted by the disciplinary panel, who found it inconsistent with the medical evidence before them, and it has to be said that the tribunal, too, finds this somewhat disingenuous.

(i) In order to succeed in an application for interim relief an applicant must show that it

is likely that in determining the complaint to which the application relates the tribunal will find that the reason (or principal reason) for the dismissal is one of the reasons specified, in this case trade union membership or activities (See: 1996 Order, Article 164(1)). In Taplin –v- C Shippam Ltd [1978] ICR 1068, at p1074 the Employment Appeal Tribunal, considering an earlier, identical English provision stated a tribunal should ask itself whether the applicant has established that he has a "pretty good" chance of succeeding in the final application to the tribunal. While the tribunal does not have to be satisfied that the applicant will succeed at the trial, there is nonetheless a high burden of proof cast upon him.

(ii) In this case, the matter is not clear cut, as for example, where someone takes up employment with a firm, joins, or attempts to form a union branch, and is almost immediately dismissed. In this case the allegation of misconduct relates to acting as union representative while on sick leave, so that to some extent the alleged misconduct and his trade union activity elide.

(iii) The applicant had been employed by the respondents for a long period of time, during most of which he had been active in trade union activities. There is no evidence that the council had previously victimised him or taken action against him because of his trade union activities.

(iv) There is nothing to suggest that had the applicant allegedly abused the sick leave scheme in some other way (e.g. by working for someone else or indulging in some activity completely unrelated to his trade union while off sick) the Council would have treated the matter any differently.

(iv) We are satisfied that there is evidence that the council had grounds for treating the applicant's conduct as an abuse of the sick pay scheme, and that it was appropriate to deal with it by way of disciplinary proceedings. This is particularly so having regard to the applicant's own admitted conduct.

Additionally, the evidence of Mrs Minne as to the conduct of the disciplinary hearing, and the matters which the panel took into account, is consistent with it having been conducted conscientiously and properly, albeit that on the evidence we have heard the tribunal might not necessarily have reached the same conclusion in relation to the second charge. However, our reservation here stems from a lack of clarity in the letter of 21 August 2000 to Mr Boomer. In the circumstances of this case we do not attach any significance to the length of the disciplinary proceedings, or to the fact that an initial allegation of falsification was not proceeded with.

Nor, in the absence of any contrary evidence, is it apparent to us that the applicant was treated disproportionately or with undue severity in view of the findings made by the internal disciplinary panel.

We have weighed up the evidence of the applicant's alleged misconduct against that of his trade union activities. There is, of course, clear evidence of the latter. However, we are unable to say that overall the evidence is more consistent with his alleged misconduct being an excuse put up by the employers for the applicant's dismissal. On the contrary, we consider that the evidence relating to the applicant's alleged abuse of the sick pay scheme is consistent with the respondent's case that he was dismissed for misconduct.

The applicant has therefore failed to satisfy the tribunal on the requirements as to proof to which we have made reference at paragraph 6(i) above.

The application for interim relief is therefore refused. The matter should now proceed to the hearing of the applicant's claim for unfair dismissal. Nothing we have said here is intended to affect the final determination of that decision.

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Date and place of hearing: 24 June 2002, Belfast

Date decision recorded in register and issued to parties: