Industrial Tribunals Northern Ireland Decisions

Molly & Anor v Calcast Ltd (Unfair Dismissal) [2003] NIIT 2111_01 (15 June 2003)

THE INDUSTRIAL TRIBUNALS

CASE REFS: 2111/01

2112/01

APPLICANTS: 1. Robert Molloy

2. Bernard Gilmour

RESPONDENT: Calcast Limited

DECISION

The unanimous decision of the tribunal is that the first named applicant, Mr Molloy, was unfairly dismissed by the respondent. The second named applicant, Mr Gilmour's, complaint of unfair dismissal is rejected and is dismissed by the tribunal, without further order.

Appearances:

The applicants were represented by Mr Uel Adair of Amicus (AEEU).

The respondent was represented by Mr Peter Bloch of Engineering Employers' Federation.

This is a reserved decision in summary form.

THE ISSUE

1. The applicants' complaints were of 'unfair dismissal'. The respondent conceded that both applicants had been dismissed but contended that the applicants had been fairly dismissed by reason of gross or serious misconduct or for some other substantial reason. Accordingly, the tribunal had to determine whether or not the applicants had been unfairly dismissed by the respondent.

THE TRIBUNAL'S FINDINGS

In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-

2. The respondent was engaged in the manufacture of cast aluminium products, typically engine cylinder heads. The production process involved amongst other matters these parts being cast and then worked upon by a team of operatives in order to produce the finished product. The applicants were both employed by the respondent as process operators. This casting process was done in a number of different ways which necessitated the finishing process being modified accordingly. The production team normally worked as a team of four or sometimes five persons, each of these persons being engaged in a different aspect of the production and finishing process. At the material time, there was an agreed practice that workers on each team would be paid according to a particular agreed method of calculation which included a recognition that the 8 hour working day would be divided up into a number of distinct parts with different rates of payment applicable to each part. For example, part of the day was occupied with lunch and clean-up time; part of the day involved attending to other tasks when the machines were not operational (known as 'downtime'); and part of the day involved working on different production parts where piecework rates were applicable depending upon the volume and type of parts.
3. Despite the fact that the tribunal heard extensive evidence from a number of witnesses concerning various aspects of this production process, the tribunal nonetheless found some of this evidence to be unsatisfactory in that it did not fully clarify aspects of the procedures for measurement of recorded work and payment consequent thereupon. What is clear is that, shortly before the events which led to the applicants' dismissals, the respondent's management, having found the operation of the production system to be unsatisfactory, issued to all employees a written notice indicating that there was a small minority of operators who were consistently over-booking in respect of their piecework sheets. It was stated in the notice dated 1 March 2001 that this would constitute a fraudulent claim and would be considered serious misconduct which might result in dismissal. In common with other workers, the two applicants received a copy of that notice.
4. On 5 March 2001, the two applicants were working as part of a four man production team together with a Mr Grieve and a Mr McConnell. As was apparently customarily the case, the applicant Mr Gilmour was tasked that day with completing a production sheet recording the working day. This sheet was completed entirely by Mr Gilmour in his own hand and he, together with Messrs Molloy, Grieve and McConnell, signed the completed sheet at the end of the day. At the bottom of that sheet was contained a printed certificate which read as follows:-

"I certify that the above represents a true record of my work during the time stated. If this information is proven to be incorrect, I understand that I will be liable to the company's disciplinary procedure".

Included in the sheet were Mr Gilmour's written records of machine downtime (recorded respectively at 22 minutes, 9 minutes, 10 minutes and 16 minutes) and also a notional figure of 60 minutes authorised by the team's supervisor for what was known as 'heavy flash'. That latter figure related to a notional additional amount of paid time included in the figures to compensate the operatives for additional work required where excess flash had been produced on the castings. Included in the section 'average' on the production sheet was a time of 1 hour and 40 minutes when the production line had been stopped and two entries each of 1 hour and 30 minutes for what were known as 'carousel parts'. The total for those three figures came to 4 hours and 40 minutes. Also written in on the sheet were figures for piecework parts and carousel parts. The significance of these figures was that they represented Mr Gilmour's recording, on behalf of the team, of the parts claimed as actually produced, a total of 556 parts for the working day. The figures contained in that sheet recorded the team's daily production with a view to obtaining payment for the individuals making up that team. Once a production sheet had been received by the team's supervisor, the supervisor's function was to check figures on the sheet, and once approved, the supervisor would sign the sheet and it would be sent forward for payment.

5. However, that day the supervisor, Mr O'Doherty, scrutinised figures on the sheet and approached the team. Mr O'Doherty had somewhat of a heated exchange with Mr Gilmour. Mr Molloy was also present. Mr Grieve and Mr McConnell appear to have walked away and avoided any confrontation or exchange at the time. The tribunal accepts that Mr O'Doherty did place the production sheet before Mr Gilmour and stated that there was 'too much money on the sheet', making it clear that in his opinion the sheet could not have been accurately completed.
6. Mr O'Doherty then reported the matter to Mr Breslin, then the respondent's production manager. Although the evidence of this was not very satisfactory, it appears that an investigatory meeting with the applicants was conducted by the respondent in or around 14 March 2001. Disciplinary meetings were then convened in respect of all four operatives, taking place initially on 12 April 2001, then reconvening on 18 April 2001. The tribunal noted written records of the meetings in respect of Mr Gilmour and Mr Molloy. At both meetings on 12 April 2001, the applicants were represented by a shop steward, Mr Gallagher. Mr McConnell and Mr Grieve had earlier that day also had disciplinary hearings. In the case of Mr Gilmour, his meeting lasted for 5 minutes; Mr Molloy's meeting lasted for 10 minutes. Mr Gilmour's representative Mr Gallagher indicated that Mr Gilmour was making no attempt to justify the sheet, it was a genuine mistake; the number of parts claimed on the sheet could not be done. In the case of Mr Molloy, again Mr Gallagher stated that no attempt could be made to justify the sheet, as the figures claimed were impossible. Mr Molloy stated that if he had known the sheet was wrong he would not have let it go in. For the respondent, Mr Breslin stated that the claimed figures indicated that in 1 hour and 23 minutes production time, 333 parts had been produced. That was not possible.
7. The disciplinary hearings were reconvened on 18 April 2001. Again, Mr McConnell and Mr Grieve were dealt with prior to the two applicants. Mr McConnell's meeting lasted for 50 minutes. Mr Grieve's meeting lasted for 1 hour and 10 minutes. Mr Gilmour's meeting appears to have lasted for only 7 minutes. Mr Molloy's meeting was about 10 minutes. Both applicants were represented by a shop steward, Mr McDaid. In contrast to the meetings held with the two other employees where there seems to have been quite extensive discussion, Mr Gilmour's meeting on 18 April 2001 was brief and consisted of Mr Breslin putting the company's position regarding the accuracy of completion of the sheets to Mr Gilmour and also putting forward the suggestion that Mr Gilmour had checked downtime every hour and that Mr Gilmour had stated that the sheet was correct and could be stood over. That suggestion was not expressly denied by Mr Gilmour and indeed Mr Gilmour commented that Mr O'Doherty had brought the sheet back to him and Mr Gilmour had stated that it looked all right to him at the time. Mr Breslin then announced that the matter constituted gross misconduct and that Mr Gilmour was dismissed and advised him in respect of his right of appeal.
8. Mr Molloy's meeting on 18 April 2001 was also very brief, lasting no more than 10 minutes. Mr Breslin put to Mr Molloy that Mr Molloy had stated that he could stand over the sheet. Mr Molloy's reply was that he had never even seen the sheet, it had just been brought over to him to be signed. His representative, Mr McDaid, agreed that there had been a mistake. Then Mr Breslin announced that Mr Molloy would be dismissed on grounds of gross misconduct and advised him of his right to appeal.
9. On 19 April 2001 Mr Breslin wrote to Mr Gilmour and to Mr Molloy in similar terms confirming that they had both been dismissed on grounds of gross misconduct. In both cases it was stated that the employee had been advised by the supervisor that the sheet was incorrect and had been given an opportunity to correct it but declined stating he could reconcile it.
10. Both applicants pursued appeals. The appeal hearings in respect of the two applicants took place on 2 May 2001 and were conducted by Ms McCurry, the respondent's general manager. The applicants were represented by Mr Adair. These hearings explored in some detail the production process and the computation of the figures. It appears that the issue that 556 parts were indeed produced that day was not in contention. However the respondent contended that these had not been done in the way claimed by the operatives, and that there must have been an overclaim for average time or for downtime, amounting to an endeavour to obtain extra payment by dishonesty.
11. In Mr Molloy's appeal hearing, facts and figures were gone into in some detail and allegations were fully put to Mr Molloy. Mr Molloy did not concede that he had been given an opportunity to change the sheet. He also denied Mr O'Doherty's suggestion that the sheet had been handed to him and that he (Mr Molloy) had agreed that he could stand over it. At the conclusion of the appeal, Ms McCurry's decision was that the dismissal ought to stand and she wrote a letter to Mr Molloy dated 9 May 2001 confirming the outcome of the appeal hearing and the reasons why the company took the view that there was a fraudulent claim constituting gross misconduct and that the dismissal ought to be upheld. Included in that was the stated finding that Mr Molloy had been given the opportunity by the supervisor to check the sheet but he had declined stating quite vociferously that he could stand over the claim.
12. In regard to Mr Gilmour's appeal, again the respondent went into some detail in discussion of the production process and the allegations were fully put to Mr Gilmour. Mr O'Doherty particularly put it to Mr Gilmour that the sheet had been given back to him and he had refused to change it, stating that it was correct. That suggestion was not expressly denied by Mr Gilmour. The point was also discussed that Mr Gilmour had claimed that he had submitted an amended sheet taking off the downtime. Why would he have done this if the downtime had been accurately claimed? That would have constituted removing payment to which he and his colleagues would have been properly entitled. Mr Gilmour contended that this had been done effectively as a concession as Mr O'Doherty had told him that the figures on the sheet were too high. There was also some debate regarding the possibility of mixing up of different types of parts carrying different piecework rates of payment. At the conclusion of the appeal Ms McCurry upheld the dismissal decision and wrote a letter dated 9 May 2001 to Mr Gilmour confirming the outcome of the appeal, the points that had been raised, and the reason for the respondent's conclusions upholding of the decision to dismiss.
13. In regard to the other members of the team, Mr Grieve and Mr McConnell also had appeal hearings on 2 May 2001. However, in both cases, whilst Ms McCurry was of the opinion that they had been party to a fraudulent claim, she also accepted that the two had not been given an opportunity to re-check the sheet. A final written warning plus five days suspension without pay was substituted in place of dismissal.

THE TRIBUNAL'S DECISION

14. An employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 unless the employer can show that the dismissal is fair for one of the reasons set out in Article 130 of that Order. One such reason relates to the conduct of the employee. The respondent purported to dismiss the applicants on grounds of gross misconduct. The task of the tribunal is to establish, in such a case of alleged gross misconduct, which would on the face of it be a potentially fair reason for dismissal, whether the respondent had acted reasonably in all the circumstances in treating the reason as sufficient. The statutory test is contained in Article 130(4) of the Employment Rights (Northern Ireland) Order 1996. The guidance contained in that Article is as follows:-

"…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 sufficient reason for dismissing the employee; and
(b)	shall be determined in accordance with equity and the substantial merits of the case".

In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 (reaffirmed by the Court of Appeal in England in the cases of Post Office v Foley/HSBC Bank v Madden [2000] IRLR 827) which includes (inter alia) that in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another and that the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.

15. The tribunal was concerned that the respondent's evidence regarding the nature and extent of the disciplinary investigation was far from clear. The tribunal was further concerned with the brevity of the applicants' disciplinary meetings. The fact of the earlier meetings are no excuse for that; clearly the respondent went into much greater detail and depth in regard to the other two employees, McConnell and Grieve. There is no evidence that any material that might have emerged in the course of those earlier meetings upon which the respondent sought to rely was fully and properly put to the applicants.
16. There is no doubt that Mr Gilmour compiled the information contained in the sheet and was also given some degree of opportunity to amend any inaccuracies or to review his figures by the respondent. This he chose not to do. However the tribunal is far from clear that Mr Molloy could be said at any time to have fully endorsed or to have indicated that he was quite willing to stand over the figures contained in the sheet nor that he was given any opportunity to change the sheet. The tribunal cannot see how both at the disciplinary hearing stage and also at the appeal that view was taken. In particular, the tribunal cannot see how Ms McCurry could have taken such a categorical view as to state in her letter to Mr Molloy of 9 May 2001 that: 'Bob was given the opportunity by the supervisor to check the sheet but he declined stating quite vociferously that he could stand over the claim'. If there was evidence to support that conclusion it was not placed before the tribunal.
17. The tribunal cannot but note with some concern the quite different approach taken at the appeal hearing by Ms McCurry in respect of the cases of Messrs Grieve and McConnell. In each of those cases, the dismissal was overturned and an alternative sanction was imposed. The reason given was that these two persons had not been afforded an opportunity to review and to amend the sheet. Was Mr Molloy not in a similar position? It must be said however that the situation of Mr Gilmour is quite different.
18. Despite the seemingly unsatisfactory nature of the arrangements concerning the production process and the recording of work, looking at all of the evidence the tribunal has no doubt that the respondent was properly entitled to conclude, on the balance of probabilities, that the sheet had been inaccurately filled in by Mr Gilmour and that one significant possibility was that this was done intentionally and on a fraudulent basis. In deciding between the two alternatives of either a simple error or alternatively a possibly fraudulent claim, the respondent was entitled to look to Mr Gilmour's familiarity and experience of the production and recording process. A simple error did not readily suggest itself to the respondent; something was clearly wrong and possible fraud was a credible explanation. Whilst all operatives who had signed the sheet had also accepted the declaration endorsed thereon, in reality, the initial responsibility for accurate completion rested upon Mr Gilmour. There was either a conspiracy with Mr Gilmour or not. The respondent chose the explanation of a conspiracy between all four. The respondent it seems had some cause to believe that such a thing was prevalent amongst a small part of the workforce, hence the notice to all employees dated 1 March 2001. There was a perceived problem and the respondent had decided to get tough upon the issue. No workers could have been in any doubt.
19. However, some aspects of the disciplinary process did cause the tribunal to harbour some concern, for instance the brevity of the two disciplinary meetings on two occasions with these applicants in contrast to their colleagues, Messrs McConnell and Grieve. However, it must be said that the applicants were represented by trade union officials who might have pursued their concerns in a more effective fashion. Again, perhaps information which the respondent might have gained from other meetings was not fully and properly put to the applicants. However both applicants could have been in no doubt as to the nature and the detail of the allegations. On balance, the tribunal's view is that both applicants were properly afforded an opportunity to meet and to counter any allegations by whatever means they chose.
20. In deciding whether or not the dismissals were fair or unfair, the tribunal looks to the facts as outlined above. On balance, the tribunal determines that the dismissal of Mr Gilmour on grounds of gross misconduct and the upholding of that dismissal upon appeal was fair and that the respondent acted reasonably and within such a band of reasonable responses as is mentioned above. Accordingly Mr Gilmour's complaint of unfair dismissal is rejected and is dismissed by the tribunal, without further order.
21. In contrast to this, it is not at all clear to the tribunal that the respondent's decision to dismiss Mr Molloy and to uphold that dismissal on appeal was fair and reasonable in all of the circumstances. The tribunal cannot say with any certainty that Mr Molloy was not in quite a similar position to Messrs Grieve and McConnell. The tribunal is concerned that, both at the disciplinary hearing stage and dismissal and also at the appeal, the respondent seems not to have conscientiously applied its mind to a full and proper investigation and hearing of Mr Molloy's case. The respondent appears to have disregarded the case which was being made that Mr Molloy had not personally been involved in the insertion of the figures on the sheet; that he had not endorsed these figures in any other manner save to sign the sheet; that he had not contended that he could stand over the figures; and that he had not been afforded an opportunity to amend the figures. Taking these factors into consideration, the tribunal cannot conclude that Mr Molloy's dismissal was fair. The company's investigation and hearing of Mr Molloy's case, both at the initial disciplinary hearing stage, appears to be deficient. Conclusions were drawn which the evidence does not appear to support. Accordingly, the tribunal determines that Mr Molloy was unfairly dismissed by the respondent.
22. In terms of the matter of remedies, the tribunal did hear briefly some evidence regarding Mr Molloy's position since the effective date of termination of employment, however the tribunal does not have before it sufficient material fully to determine the matter of remedies in that case and the matter shall accordingly be re-listed for hearing with a view to determining an appropriate remedy in this case.

Chairman:

Date and place of hearing:

Date decision recorded in register and issued to parties: