Industrial Tribunals Northern Ireland Decisions

 


Dickey v Francis Dinsmore Ltd (Unfair Dismissal) [2002] NIIT 2613_01 (8 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 2613/01

APPLICANT: Geoffrey Dickey

RESPONDENT: Francis Dinsmore Limited

DECISION

The decision of the tribunal is that the majority of the tribunal find that the applicant was not unfairly dismissed whilst the minority view is that the applicant was unfairly dismissed and would be entitled to compensation.

Appearances:

The applicant was represented by Mr John O'Neill, Solicitor of Messrs Thomsons McClure.

The respondent was represented by Mr Ferguson of Personnel & Training Services.

1. Having regard to the fact that the Tribunal is split in its decision the Tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision and therefore the reasons are given in extended form.

1.1. The Facts

The facts of this incident leading to the applicant's dismissal are not in dispute. At about 12.15 am on 23 April 2001 the applicant was discovered by the Managing Director of the respondent sitting beside a machine at the respondents Dye Works with his eyes closed. He was supposed to be watching the batches of material running through a machine to make sure they were feeding into the machine running straight. When the Managing Director, Mr Laird Dinsmore, asked the applicant why he was not paying attention to ensure that the batches were running straight, the applicant explained that they were only "Redbridge whites" and that it did not really matter if they were not running straight. Mr Dinsmore told the applicant that it was important that the material was properly processed and that more care should be taken as Redbridge was one of their important customers.

1.2. At approximately 2.10 am in the morning another of the respondent Company Directors, Mr Dinsmore's brother Stephen, who was also on duty that night at the works, told his brother Laird Dinsmore that he thought that the applicant was asleep at his machine. Both brothers went to the Dye House and found the applicant slouched on a chair between his two machines with his cap pulled over his head and appearing to be asleep. Laird Dinsmore tapped the applicant's arm and asked him if he was asleep to which he replied no. Mr Dinsmore went on to say that the applicant could not have been watching the machines for which he was responsible if he was sitting with his back to them in an apparent sleeping position.

1.3. Nothing further occurred during the shift but in the morning before the applicant left he was told by Laird Dinsmore that the Company intended to take disciplinary action in respect of his conduct during the night.

1.4. Mr Dinsmore explained that the Company was concerned that the material had not been properly processed on one of the applicant's machines and although they could not tell exactly what the state of the material was, they ran it through the machine again to be certain that the customer would not complain.

1.5. A Disciplinary hearing was arranged for 23 April. However as the applicant appeared on that day with a friend who was not either a Trade Union representative or a fellow employee, the hearing was adjourned until 25 April when Mr Alan Elliot of GMB was available to appear with the applicant.

1.6. At the adjourned disciplinary hearing on 23 April Wilma Buick of the Company Personnel & Training Services (PTS), the company that was assisting the respondents in dealing with their personnel affairs, told the applicant that the Company viewed his behaviour, in sleeping at his machine, as gross negligence and therefore the disciplinary hearing was concerned with gross misconduct, a charge, if proven, which could lead to his dismissal. This charge was not put to the applicant in writing but was clearly put to him by Miss Buick verbally at the adjourned hearing.

1.7. At the disciplinary hearing the applicant maintained that he had not been sleeping, he stated he was sitting beside one machine looking down the room and there was enough of a gap for him to see the two machines for which he was responsible.

1.8. As the disciplinary hearing progressed the applicant did accept that he might have been dozing but said that he definitely was not asleep. At the end of the hearing the applicant was dismissed for gross negligence.

1.9. An appeal hearing was heard on 1 May 2001 where again Mr Elliot of GMB appeared with the applicant. At this hearing Mr Dickey did admit that he accepted that he had dozed or been asleep for a short period on the night in question. At the end of the hearing Mr Ferguson and Mr Millar who had conducted the appeal informed the applicant that his dismissal was confirmed.

2. The Applicant's Case

2.1. The applicant put forward to the Tribunal the case that even if he had been dozing or asleep for a very short period of time this was no worse than if he had left his post by the machines to go and have a cup of tea at the back of the Dye Shop or if he had gone to have a discussion with another employee concerning a batch of material.

2.2. The applicant stated that nowhere in the respondent's literature or rules, is it stated either in the Dye Room or in the literature given to employees that falling asleep at one's post would lead to dismissal.

2.3. The applicant alleged that the respondents had been guilty of failing to properly supervise the night-shift and that they had failed to implement the training arrangements set out in the Health & Safety Regulations and more importantly had failed to give training and counselling to night-shift workers as laid down by the Working Time Regulations (Northern Ireland) 1998.

2.4. Whilst the applicant now accepted that he was guilty of falling asleep beside his machine he felt that the sanction of dismissal was unduly harsh. He felt that the respondent had reacted as if the material for which he was responsible had been damaged and not merely, might have been damaged. He argued that there was inconsistency in the respondent's approach to the matter. If the applicant had merely gone to have a discussion with another employee concerning material to be processed or had gone to make a cup of coffee at the back of the room leaving his machine he would not have been dismissed.

2.5. The applicant drew attention the Labour Relations Agency Disciplinary Practices and Procedures in Employment (Code of Practice 2) where paragraph 8 stated that "Employees should be made aware of the consequence of breaking rules and in particular they should be given a clear indication of the type of conduct which may result in summary dismissal".

2.6. Furthermore the applicant was never told of the exact charge of what was alleged in writing he was merely told verbally by Miss Buick.

3. The Respondents Arguments

3.1. The respondent argued that it had, some while before the incident, taken the trouble to explain to staff the importance of quality control in the processing of the products. The products all belonged to companies who entrusted them to the respondent company for processing and the Company would be liable if any damage occurred to the products. This had been carefully explained to the applicant and other employees who fully realised the difficulty through which the industry was going and the importance of strict quality control.

3.2. The applicant had been on leave for some days before the incident occurred and this was his first night back. He had been discovered by the Managing Director failing to properly supervise his machines and had been warned of the importance of watching the work carefully. That incident had occurred two hours prior to the incident when the applicant was discovered asleep.

3.3. The applicant knew and indeed had been reminded earlier that evening, that the material he was working on belonged to important customers of the respondent company and that despite that he had failed to ensure that he was alert and watching the various machines.

3.4. There was no need for the respondent to draw attention to the requirement, that operatives should not go to sleep whilst watching machines, this was obvious to any employee who would have been aware of the importance of the quality control.

3.5. The respondent saw a clear difference between somebody leaving a machine for a few moments to speak to another employee or to get a cup of coffee, when that employee had seen that his machine was running smoothly and was merely absenting himself for a few moments. The act of going to sleep meant that the employee was out of control of the machine and anything might happen and the employee would have no way of knowing that the process was incorrect.

3.6. The decision to dismiss was not inconsistent as there had been no previous problems of this nature in the works. No other employee had, to the knowledge of any witness, gone to sleep at his machine. The risk of the material being incorrectly processed could not be taken by the respondent and that was why it had to rework the material at some considerable cost.

3.7. The applicant was clear of the reason for his dismissal. He had been clearly told what the charges were against him at the adjourned meeting and he had had an opportunity of consulting with his Union representative. The reference to the Working Time Regulations and requirements of monitoring and consultation are not appropriate as the applicant had been on night work for some considerable time in the past and he had never highlighted any medical problem or difficulty with regard to the work. This was his first day back on night shift after a period of leave and he should have been in a position to have carried out the shift without any problem.

4. The majority decision of the tribunal is as follows:-

4.1. The majority of the Tribunal hold that the applicant was fairly dismissed. The action of going to sleep on his shift and thereby putting the material at risk was an act of gross negligence which could have resulted in serious damage to the product for which the respondent company was responsible. The matter was compounded by the fact that the applicant had been warned of the importance of the process only an hour or two before he was found asleep and he knew that the job he was doing was one that required concentration and alertness in order to avoid material having to be reworked at expense to the respondent.

4.2. The case to which the Tribunal was referred of Ayub –v- Vauxhall Motors Limited 1978 IRLR428, which also dealt with an employee going to sleep on a shift, was not in the view of the Tribunal relevant. The employee in that case had, by the time he was found asleep, finished his quota of work for the shift. In the recorded decision it is stated "It has also been accepted by the respondents that in the early hours of the morning in question when the applicant was caught sleeping, he had by that time finished his quota for the nightshift. Having fulfilled his quota it would have been contrary to custom and practice for him to have been given more work on that particular shift". This present case is a very different case, where the applicant went to sleep in the middle of his working shift.

4.3. The majority of the Tribunal therefore consider that dismissal was a fair sanction in this particular incident. The Tribunal are conscious that when determining whether or not a dismissal is a fair sanction it is not for the Tribunal to substitute its own view of the appropriate penalty for that of the employer. Consequently there is an area of discretion in which management may decide on a range of penalties, all of which might be considered reasonable.

4.4. In this case the majority of the Tribunal hold that the dismissal of the employee for gross negligence arising out of his sleeping whilst on shift was a fair response of the respondent.

4.5. The majority of the Tribunal bear in mind the fact that the respondent through Mr Laird Dinsmore admitted that it had not adhered to the terms of the Working Time Regulations. Mr Dinsmore was not even aware of the requirements concerning nightshift workers. The members of the Tribunal including the majority of members are critical of the respondent company in this instance and indeed are surprised that the respondent did not realise the importance of this legislation, bearing in mind the care which it had taken with its advisors in the conduct of the disciplinary hearing and the processes leading to the applicant's dismissal. However having said that the Tribunal do not feel that the failure of the respondent to observe the terms of the Working Time Regulations prejudiced the applicant in this case and even if the Regulations had been obeyed to the letter, the majority of the Tribunal hold that it would have had no particular effect on this applicant.

4.6. So far as the disciplinary procedure is concerned the majority of the Tribunal hold that this was properly conducted. It was unfortunate that the charge against the applicant was not put to him in writing but the charge was put verbally and he appeared to understand it and had time to arrange for his Union representative to accompany him to the adjourned hearing.

4.7. The majority of the Tribunal therefore hold that the dismissal was fair.

5. The opinion of the Member of the Tribunal in the minority is as follows:-

The decision of the respondents to dismiss the applicant was not within the reasonable band of appropriate penalties in the context of this case.

5.1. The applicant had been lulled into a false sense of security by the fact that on a number of previous occasions he had had disciplinary charges levelled against him concerning other incidents (none of which were taken into account by the disciplinary hearing in this case as they were time expired). For instance the applicant had been charged with discharging dye into a drain and subsequently after being warned of this the same discharge occurred which could have had serious affects for the Company in the environmental context. This merely led to a written warning. Another warning occurred where the applicant failed to show due care to employers equipment. The minority of the Tribunal felt that this was a small business run in a "family way" and everyone was known by their Christian name. The applicant had no idea that what he saw as a lapse on the night in question, could lead to his dismissal, even though the minority of the Tribunal accepts that the charge was clearly put to him verbally by Miss Buick.

5.2. The minority member of the Tribunal, in common with the majority members holds that the Company was in serious breach of its responsibilities under the Working Time Regulations. However this matter having been raised at a late stage in the proceedings and after the disciplinary process had been completed, does not consider that the applicant was prejudiced in this regard.

5.3. The minority member of the Tribunal holds that although the applicant was unfairly dismissed the applicant was in many ways responsible for his own dismissal. The minority member would assess a contributory fault of the applicant as 50% of any award that the minority member would have awarded.

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Date and place of hearing: 18 February 2002 and 8 March 2002, Belfast

Date decision recorded in register and issued to parties: 8 May 2002