Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 1293/04

CLAIMANT: Patrick McCloskey

RESPONDENT: Dessian Products Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and the reason for his dismissal was not related to his trade union activities.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Panel Members: Mr R Robinson

Dr J W Young

Appearances:

The claimant was represented by Mr J Park, Barrister-at-Law, instructed by Agnew Andress Higgins, Solicitors.

The respondent was represented by Ms A Jones-Campbell Solicitor.

REASONS

1. The Sources of Evidence

The tribunal heard evidence from the claimant on his own behalf, and also from Mr Maurice Cunningham and Mr Eugene McGlone of the Amalgamated Transport & General Workers Union. On behalf of the respondent, the tribunal heard evidence from:-

Paula Barbour;

Leslie Irwin;

Philip Cunningham;

Alan McGaughey and

Stephen Greaves.

The tribunal also heard evidence from two external HR Consultants retained by the respondent - Judith Hewitt and Nicola Powderley. The tribunal was referred to an agreed bundle of documents.

2. The Claim and the Defence

In his Originating Application the claimant claimed that he had been unfairly dismissed and that this was on the grounds of his trade union activity. An additional claim for interim relief was abandoned on behalf of the claimant at an earlier hearing on 13 December 2004. The respondent accepted that the claimant had been dismissed, but claimed that he had been fairly dismissed for misconduct.

3. The Issues

The tribunal considered that the issues before us were as follows:-

(i) What was the reason for the claimant's dismissal?

(ii) If the reason for the dismissal was misconduct, did the respondent act fairly in treating the claimant's misconduct as a sufficient reason for dismissing him?

4. Analysis of Evidence

In general where there was a dispute in the evidence, the tribunal preferred the evidence given on behalf of the respondent as being more consistent. The tribunal considered that the claimant's case was undermined by his responses in cross-examination. While Mr McGlone gave powerful evidence on behalf of the claimant, the tribunal considered that the evidence given by Mr Cunningham did not add any objective worth to the case made on behalf of the claimant that his dismissal was for trade union activity.

5. Findings of Fact

(i) The claimant operated the SV610 and the SV800 machines for the respondent and also did repair work.

(ii) There was a background of the claimant being unhappy at the amount of repairs to be done but although he spoke to Leslie Irwin his line manager, he did not raise a formal grievance.

(iii) The respondent was not unhappy with the claimant's repair work.

(iv) The claimant was deputy shop steward and was participating in the ongoing pay talks scheduled to resume on or about 18 March 2004.

(v) On 12 March 2004, the claimant had an altercation with his supervisor Hugh McClurg.

(vi) On 15 March 2004, he refused a work instruction of Hugh McClurg. He refused to carry out repairs.

(vii) On 16 March 2004, Leslie Irwin spoke to the claimant and on the claimant's case said he would try to transfer him. Leslie Irwin disputed this indicating that he said that he would speak to the claimant's team leader to see if a transfer was possible. Leslie Irwin did speak to the claimant's team leader and in view of the workload, was not able to move the claimant. Later on the same day, he asked the claimant to do the repairs once more. The claimant refused and was suspended on pay.

(viii) The claimant's union was only alerted to this suspension having taken place on 18 March 2004.

(ix) This was a prima facia breach of the recognition agreement.

(x) The respondent appointed Philip Cunningham and Paula Barbour to investigate the circumstances of the claimant's refusal to carry out the work instructions.

(xi) There was a disciplinary hearing held by Alan McGaughey on foot of which the claimant was dismissed. Alan McGaughey was the managing director.

(xii) The claimant appealed his dismissal and that appeal was heard by Stephen Greaves. Stephen Greaves dismissed the appeal.

6. Short Statement of the Applicable Principle of Law

The applicable sections of the Employment Rights (Northern Ireland) Order 1996 are - Article 130(1) which says:-

"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 (or, if more than one, the principle 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".

Article 136(1) says:-

"An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason, (or, if more than one, the principle reason) for his dismissal is that the employee -

(a) was, or proposed to become, a member of an independent trade union, or

(b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, …..".

7. The Tribunal's Conclusions

In relation to the claim that the claimant had been dismissed as a result of his trade union activities, the tribunal saw no merit in this contention. The claimant was not playing a high profile part in the pay talks. It was admitted by Mr Cunningham that the claimant's role was very much one of being in the background, essentially providing feedback from the work force. The tribunal concludes that if the respondent had really wished to scupper the pay talks, it would have sought to attack the actual shop steward, Mr Magee, who was a far more high profile participant playing a leading role in the pay talks alongside Mr Maurice Cunningham. Secondly, the tribunal concludes that the company would not have been able to foresee the claimant's refusal to carry out repairs. This is something that happened independently of the talks and unexpectedly. Although there had been some background of discontent, the claimant had been carrying out this work for a number of years and carrying it out moreover to the satisfaction of the respondent. In the absence of formal complaints from the claimant who admitted in the course of the hearing that he knew how to operate the grievance procedure, the tribunal concludes that the respondent could not have foreseen the reaction of the claimant. The tribunal is satisfied on the evidence that the claimant's dismissal was not related in any way to his union activities.

The tribunal concludes that the reason for the claimant's dismissal was in fact his failure to carry out a reasonable work instruction given to him a number of times on behalf of the respondent. There were a number of arguments advanced on behalf of the claimant to suggest that the instruction was not reasonable. These centred upon the heavy workload of the claimant, the use of materials for which he was not trained and the lack of a proper space in which to carry out these repairs. On the claimant's own evidence, the contention that his workload was heavy was not borne out. It was accepted by the claimant that when he was on holiday the work was done and he did not return to a backlog of repairs. Additionally, when Mr Irwin went down to speak to the claimant on the floor on 16 March 2004 he found only a small number of items requiring repair. Furthermore, on 12 March 2004, the claimant had time to look at a betting slip with a co-worker. The tribunal also rejects the contentions that the claimant had inadequate training and had valid concerns on health and safety issues. Furthermore, the tribunal is supported in its conclusion by the claimant's own evidence which said that health and safety matters were not an issue for him solely the bench and work space within which to carry out the repairs. Although the claimant had allegedly concerns over inadequate work space within which to carry out the repairs, it was noted by the tribunal that he had never taken any formal steps prior to 12 March 2004 to make this an issue and certainly did not raise a formal grievance about it.

The tribunal also considered the argument that the claimant had been unequally treated as other co-workers had refused to carry out the repairs and had not met with any disciplinary sanction. The tribunal found in each case that the persons refusing did not have the skills to carry out the repairs and certainly not the level of skill or experience of the claimant. The tribunal also finds that the fitters (as a class of employees in the respondent) carried out a different type of repair to the claimant. For all of the above reasons, the tribunal has concluded that the instruction to carry out the repairs was reasonable.

It is settled law that failure to carry out a reasonable work instruction is a ground for gross misconduct and as such merits dismissal.

Was dismissal a fair sanction in this case?

The consequences of failure to carry out a reasonable work instruction were contained in the company handbook at page 31 and were specifically explained to the claimant by Leslie Irwin. This is not a case in which the claimant's suspension was a knee jerk reaction, there had been some time taken to try to amicably persuade the claimant to review his position. However, the claimant refused. The claimant also gave away his tools. The tribunal concludes that the claimant had taken the irreversible position that he was not going to carry out repairs any more.

There were a number of criticisms of the respondent's procedure. These centred round the involvement of Ms Hewitt and Ms Powderley in the disciplinary procedure, the fact that the appeal was heard by Mr Stephen Greaves rather than Mr Alan McGaughey (the managing director), a lack of notification to the trade union, an investigation of the initial complaint by allegedly junior managers to Leslie Irwin. The tribunal did not find the investigation by Paula Barbour and Philip Cunningham to be a procedural breach that would render an otherwise fair dismissal unfair because the tribunal accepts the evidence that they were of equal status to Leslie Irwin. The tribunal also does not accept that the hearing of the appeal by Stephen Greaves was such a procedural breach as to render the dismissal unfair. The tribunal accepts that initially Stephen Greaves was to hear the disciplinary hearing and was prevented from doing so by the claimant's failure to turn up and he heard the appeal because Mr Alan McGaughey heard the disciplinary hearing. The tribunal accepts that Mr McGaughey and Mr Greaves had equal status on the directorial level. It was also suggested that Mr McGaughey had pre-determined the issue of the claimant's guilt. If this was really the case, the tribunal considered that it would be more likely than not that Mr McGaughey would simply have failed to carry out the disciplinary hearing at all, let alone one of considerable length.

It was argued that dismissal was not a fair sanction as amongst other factors insufficient weight was given to the claimant's clear disciplinary record, his good work record and usefulness and the context of the objections, and the failure of others to carry out repair work.

Given that the failure to carry out a work instruction is an offence of gross misconduct, and as such stands alone in a disciplinary context, the tribunal is unable to consider that the respondent acted unfairly in treating this offence as sufficient to justify the claimant's dismissal. It is settled law that this is an offence of gross misconduct and the reason for that is that if everybody started refusing to do the work that they were detailed to do, there would be chaos in the production area and no work would be done. The tribunal has already dealt with the context of the objections, the circumstances of the meeting with Leslie Irwin, the refusal of others to carry out repair work and the alleged inconsistency of treatment earlier on in this decision.

As regards the case of the employee kicking a block at a female employee on the shop floor, the tribunal considers that it is unable to regard this as a comparable case because, although serious, the tribunal accepts the evidence on behalf of the respondent that this complaint was withdrawn.

For all of the above reasons, the tribunal considers that given the circumstances of the claimant's refusal to carry out a reasonable work instruction, the respondent did not act unreasonably in treating dismissal as a fair sanction for this offence, in accordance with the guidance given in Iceland Frozen Foods -v- Jones [1982] IRLR 439.

Chairman:

Date and place of hearing: 4, 8, 9, 11 February 2005 and

3 and 4 October 2005, Belfast.

Date decision recorded in register and issued to parties: