Title: FAIR EMPLOYMENT TRIBUNAL
Author: irtusetup
Last saved by: joe.ury
Company: DED

THE INDUSTRIAL TRIBUNALS 

CASE REF:		2464/04

CLAIMANT:		William Wallace

RESPONDENT:	Department for Regional Development
			(Road Service)	

			 
DECISION 

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and it orders that the respondent re-engage him on the terms set out in the decision.

Appearances:

The claimant was represented by Mr S. Doherty, of Counsel, instructed by Agnew, Andreas and Higgins, Solicitors. 

The respondent was represented by Mr T. Boyce, of Counsel, instructed by the Departmental Solicitors.

Sources of Evidence

1.	The tribunal heard evidence from the claimant and his witness Jim Quinn and for the respondent from Colin Brown, Caitriona Hughes, Anne Breen, Des Moore and Stephen Gilmore.  The tribunal also received 10 bundles of agreed documents amounting to 725 pages and a Handbook for Industrial Employees and Procedures for Dealing with Equal Opportunities and Harassment Complaints (OM15/01).

The Claim and Defence

2.	The claimant claimed unfair dismissal on the grounds of his trade union activity and membership.  The respondent asserted the claimant had been properly 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 road worker grade 2 from 9
February 1984 to 8 September 2004 when it dismissed him for gross misconduct.

(b)	The claimant earned per week £210 gross £235 net and £80 bonus.

(c)	An incident occurred in Mr Gilmore’s office on 27 June 2003 with the claimant.

(d)	On 1 July 2003 Mr Gilmore launched a complaint of harassment.  He met with Mr Strain from the respondent’s Equal Opportunities Branch who asked him to provide background information to the complaint.  Mr Gilmore provided Mr Strain with a list of 9 incidents involving the claimant from 16 April 1997 to the incident of 27 June 2003.

(e)	Anne Breen, Principal Officer Equal Opportunities Branch, advised the claimant in 13 August 2003 that a formal investigation would be held into Mr Gilmore’s complaint of harassment and Caitriona Hughes would investigate and report on the matter under the procedures of OM15/01.

(f)	Caitriona Hughes reported in March 2004 and found that each of the 9 incidents set out in Mr Gilmore’s document amounted to victimisation, insubordination, harassment, breaching regulations and questioning Mr Gilmore’s management and a tendency to harassment.

(g)	On 20 May 2004 Anne Breen notified the claimant that she had upheld Mr Gilmore’s complaint in full and that she was passing the matter to the Chief Executive of the Agency to consider the appropriate penalty.

(h)	Mr Colin Brown, on behalf of the Chief Executive, met with the claimant on 24 July 2004 to determine the appropriate penalty.  On 10 August 2004 he notified the claimant of his dismissal and his right of appeal to the Northern Ireland Civil Service Appeal Board.

(i)	The claimant appealed to the Civil Service Appeal Board.  His appeal was not upheld.

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 not persuaded that the first 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)	It is not clear what the relationship is between the respondent’s harassment and disciplinary procedures.

(1)	Paragraph 4.8 could be read as requiring the normal disciplinary procedure be followed (charge, hearing and finding) where a complaint of harassment has been upheld or once a complaint of harassment has been upheld the only remaining step is the penalty.

(2)	The respondent in dealing with this matter seemed to follow both interpretations.  Mr Moore in his letter to the claimant of 5 July 2004 talked about the claimant being charged with 9 disciplinary offences.  However, Mr Brown told the tribunal that his function was merely to decide on the penalty as the findings had already been made.

(ii)	Nor is it clear under the respondent’s harassment procedures who makes the decision that harassment has been established.

(1)	Caitriona Hughes in her report finds that Mr Gilmore’ complaints are established in full.

(2)	Paragraph 4.7 of OM 15/01 gives to Anne Breen the responsibility to decide whether the complaint should be upheld.

(3)	Paragraph 4.8 of OM 15/01 gives to the Chief Executive or the Departmental Establishment Officer the responsibility to consider disciplinary action under existing disciplinary procedures.

(iii)	The respondent confused the charge against the claimant.  Mr Gilmore alleged harassment in relation to the incident of 27 June 2003 and provided background information at the request of Equal Opportunities Branch, going back 6 years.  The respondent treated each of the other 8 background incidents as separate charges of harassment even though Mr Gilmore never made any such complaint and 1 incident had already been the subject of a disciplinary charge for which the claimant had been disciplined.

(iv)	The investigation carried out by Caitriona Hughes was seriously flawed in the following respects:-

(1)	The claimant was not provided with the statements of evidence obtained by Caitriona Hughes nor was he advised of their contents.

(2)	He was only provided with a list of Caitriona Hughes’ conclusions.

(3)	He was unaware of evidence supportive of him from Mr Keenan nor was he aware of Mr Boyle’s evidence supportive of Mr Gilmore’s account of the incident of 27 June 2003.

(4)	The claimant was never asked during the investigation whether he raised his voice at the meeting with Mr Gilmore on 27 June 2003 nor was the only eye witness to the event Mr McCutcheon asked about alleged harassment by the claimant of Mr Gilmore.

(v)	The disciplinary hearing was seriously flawed in the following respects:-

(1)	The decision maker seems to have been Anne Breen.  Mr Brown told the tribunal that the findings had already been made and his function was simply to decide on penalty.  Caitriona Hughes carried out an investigation and her investigation did not become a disciplinary hearing as the claimant was not told of important details of the case against him nor therefore invited to comment on those details.

(2)	The decision as to whether to uphold the complaint of harassment was made by Anne Breen.  It was made without the claimant knowing important details of the case against him, or him having been given the chance to state his case or answer the criticisms of him.  This in the tribunal’s view was the disciplinary hearing and it lacked the basic requirements of fairness.

(3)	The respondent does not appear to have given any consideration at the disciplinary hearing stage to the propriety of the charges against the claimant nor that he had already been disciplined for one of the earlier incidents nor why Mr Gilmore did not raise incidents of harassment much earlier and when they occurred as is required by OM 15/01 and elementary fairness.

(4)	The respondent accepted the findings of Caitriona Hughes and upheld all the complaints in an investigation about the alleged harassment of Mr Gilmore by the claimant even though a number of the findings related to other disciplinary issues e.g., insubordination, victimisation, undermining Mr Gilmore and a tendency to harassment about which the claimant was not charged.  Many of Ms Hughes’ findings seem somewhat forced.

(5)	While the claimant was allowed to speak at the hearing before Mr Brown this was to determine penalty not whether the charge of harassment had been established.

(vi)	No evidence was adduced before the tribunal on the claimant’s appeal and accordingly it is not possible to comment on it or whether it corrected any earlier defects.

(vii)	There are a number of other matters of concern in this whole process.  The attendance during working hours of the claimant at a union meeting held without permission is one of the charges against the claimant and yet none of the others in attendance including the site foreman faced any disciplinary issues.  Another incident that was found to harass Mr Gilmore was the claimant’s non-attendance at health and safety inspections despite not being obliged to attend them.

(viii)	The letter of dismissal of 10 August 2004 refers to other matters about which the claimant was not charged in deciding to dismiss the claimant was unnecessarily obstructive of his line manager and attempted to undermine his managerial responsibilities.

(c)	In all the circumstances the dismissal was unfair.  The tribunal is not persuaded that the claimant was dismissed for his trade union membership or activities.

(d)	Given that the claimant never had a proper disciplinary hearing and in view of the other matters set out above it cannot be said that had the respondent operated proper procedures the claimant would have been dismissed in any event or that there was any contributory fault.  The tribunal is conscious of the bad relationship between the claimant and Mr Gilmore and for that reason we do not  order re-instatement.

(e)	The tribunal orders that the claimant be re-engaged with the respondent as a road worker grade 2 within a reasonable distance of his home and at a rate of remuneration appropriate to that grade.  It further orders that the respondent pay to him all pay due from 8 September 2004 to the date of re-engagement with all his rights and privileges intact as though he had never been dismissed.  This is to be completed by 5 September 2005.

	

Chairman:

 
Date and place of hearing:	1, 2 and 3 February 2005, 
30 and 31 March 2005, 1 April 2005, and
					16, 17 and 18 May 2005, Belfast.

Date decision recorded in register and issued to parties:

2464-04mol			(32)