Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2421/03

CLAIMANT: Robert McLarnon

RESPONDENT: Northern Ireland Housing Executive

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and his claim is dismissed.

Appearances:

The claimant was represented by Mr Watters.

The respondent was represented by Mr Grainger, of Counsel, instructed by Jones Cassidy, Solicitors.

Sources of Evidence

1. The tribunal heard evidence from the claimant and his witness John Conlon and for the respondent from John McCormick, Robert Lorimer, John McCallan, Joseph Law, Francis McGuigan and Thomas O'Hea. The tribunal also received 5 bundles of agreed documents amounting to 150 pages and a map of the area and a brochure for a self-propelled triple mower.

The Claim and Defence

2. The claimant claimed unfair dismissal. The respondent asserted the claimant had been dismissed for gross misconduct.

The Issues

3. (a) Was the claimant unfairly dismissed?

(b) If yes what is the appropriate remedy?

Findings of Fact

4. (a) The respondent employed the claimant as a groundsman from 18 March

1999 to 20 May 2003 when it dismissed him for gross misconduct.

(b) The claimant earned per month £1,259.00 gross, £952.18 net.

(c) The main part of the claimant's duties was to cut grass on the respondent's property in the Antrim area. To do that he was supplied with a cylinder mower which he used during working hours and lodged at the respondent's depot.

(d) The claimant owned a rotary mower and he did private grass cutting work for four commercial customers before or after working hours.

(e) The claimant and a fellow groundsman John McCallan were on bad terms.

(f) On 12 September 2002 John McCallan while passing Louise Products factory premises on his mower got a puncture. He had observed the claimant riding on his mower and raising the cutting blades which is done on completion of grass cutting. John McCallan did not see the grass being cut but he observed that the grass had been cut by a cylinder mower and the claimant's cylinder mower was parked at the side of the building.

(g) Roy Lorimer, the charge hand, arrived at the scene to assist in the repair of John McCallan's puncture. He also observed the claimant's machine at Louise Products and noticed that the grass had been cut with a cylinder mower. He believed the grass had been cut with the respondent's machine in the respondent's time. He reported the matter to John McCormack DLO manager.

(h) On 13 September 2002 John McCormack and Roy Lorimer went to Louise Products premises. John McCormack believed that the grass had been cut by a cylinder mower.

(i) Later on 13 September 2002 the claimant drove around The Folly with John McCallan in pursuit. The claimant explained this as driving around the estate to see if there was work to be done and seeking a short cut to go back to the depot to go to the toilet. John McCallan said that this was to go to his house to tell Mrs McCallan that John was a "pervert and paedophile" as the claimant had previously alleged.

(j) The claimant then set off for Rathenraw estate with John McCallan in pursuit. The claimant said that he went there to go to the toilet in his father-in-law's whereas John McCallan alleged he was going to where his wife worked close to the claimant's father-in-law's house.

(k) On 7 November 2002 the respondent's personnel department notified the claimant that having investigated the incidents on 12 and 13 September 2002 they were going to convene a disciplinary hearing.

(l) On 28 January 2003 the respondent notified the claimant of the disciplinary hearing on 20 February 2003 to consider three charges of cutting grass for remuneration in a private capacity and using the respondent's property for an unauthorised purpose and causing humiliation, distress, fear or apprehension to a colleague in breach of the respondent's Equal Opportunities Policy.

(m) On 14 February 2003 the claimant had a phone conversation with John McCormack about the production of a pack for the disciplinary hearing which disclosed the claimant's father-in-law's address. During the conversation the claimant was aggressive to John McCormack, his manager.

(n) Later the same morning the claimant entered the office of Joseph Law, his line manager, while he was with a consultant. He complained about his father-in-law's address and his own phone number appearing in the pack for the disciplinary hearing. He was agitated and aggressive and frightened Mr Law with his statement that two men from Rathenraw would be coming to visit him about this matter.

(o) Mr Law informed Mr McCormack what had happened and on the latter's instructions suspended the claimant.

(p) On 24 February 2003 Mr McGuigan from Personnel wrote to the claimant to advise him that he would face an additional charge of verbal assault and gross insubordination towards members of DLO management on 14 February 2003.

(q) On 5 March 2003 the disciplinary hearing was convened to deal with the 4 charges against the claimant. The hearing did not conclude and was re-scheduled for 16 April 2003.

(r) On 4 April 2003 Mr McGuigan again wrote to the claimant to tell him that at the reconvened hearing he would face a fifth charge for repeating behaviour towards John McCallan on three occasions that caused him humiliation, distress, fear or apprehension in breach of the Equal Opportunities Policy.

(s) The disciplinary panel found the first four charges substantiated. It dismissed the fifth charge against the claimant. It found the claimant guilty of gross misconduct and dismissed him. It advised the claimant of the result on 20 May 2003.

(t) The claimant appealed to the Northern Ireland Joint Appeals Board. The appeal was heard on 6 October 2003 under an independent chairman. The Joint Appeal Board upheld the decision to dismiss.

The Law

5. (a) To establish that a dismissal is not unfair an employer must establish the

reason for the dismissal and that it was one of the statutory reasons that can

render a dismissal not unfair. If an employer satisfies both of the above requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee.

(b) Where an employer dismisses an employee for misconduct he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

Application of the Law and Findings of Fact to the Issues

6. (a) The tribunal is satisfied that the respondent has shown the reason for the

claimant's dismissal (misconduct) and that that reason is one of the statutory reasons that can render a dismissal fair.

(b) The tribunal is persuaded that the respondent has acted fairly and reasonably in all the circumstances in dismissing the claimant. In so concluding the tribunal was influenced by the following matters:-

(i) The respondent carried out a reasonable investigation which is not challenged by the claimant.

(ii) The respondent carried out a reasonable disciplinary hearing which is not challenged by the claimant. The claimant knew the case against him. He was accompanied by his union representatives. He was given a chance to state his case.

(iii) The claimant exercised his right of appeal. He was able to make his case both by written submission and oral submission. He was accompanied by his union representative.

(c) There was sufficient evidence before the disciplinary panel to enable it to conclude that charges 1-4 had been substantiated.

(i) Four witnesses gave evidence that the grass at Louise Products had been cut by a cylinder mower. If it was cut by a cylinder mower it had to be with the respondent's equipment and in the respondent's time.

(ii) There was a bad relationship between the claimant and John McCallan and the claimant did not deny that he had called John McCallan a pervert and paedophile in the past.

(iii) The evidence from the claimant's colleagues, while not totally consistent, tended to support John McCallan's account of events on 13 September 2002.

(iv) The events on 14 February 2003 were not contested at the disciplinary hearing but rather an attempt was made to explain the claimant's behaviour as not being normal and caused by family pressure.

(v) The claimant's behaviour on 13 September 2002 and 14 February 2003 constitutes harassment and was in breach of the Equal Opportunities Policy.

(d) The respondent had a reasonable belief that the claimant had committed acts of misconduct and dismissal was within the range of reasonable responses.

(e) Accordingly, the claimant's claim for unfair dismissal is dismissed.

Chairman:

Date and place of hearing: 22, 23 and 24 March 2005,

9, 10, 11, 12, 19 and 20 May 2005 and

6 June 2005, Belfast.

Date decision recorded in register and issued to parties: