Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2635/02

APPLICANT: James Harold Craig Fitzsimmons

RESPONDENT: Royal Mail

DECISION

The unanimous decision of the tribunal is that the application be dismissed.

Appearances:

The applicant was represented by Mr Robinson, Barrister-at-Law instructed by Rosemary Connolly, Solicitor.

The respondent was represented by Mr Dunlop, Barrister-at-Law instructed by Napier & Sons, Solicitors.

1. The reasons are given in summary form.
2. The issues for the tribunal to determine were:-

(i) Whether the summary dismissal of the applicant on 28 October 2002 was for a reason within Article 130(1)(b) of the Employment Rights Order (Northern Ireland) 1996 (the Order).

(ii) Whether the summary dismissal was fair for the purposes of Article 130 of the Order.

3. The following facts were not in contention:

(a) The applicant started work in Royal Mail in May 1991 and worked there until his dismissal on 28 October 2002. He was a postman. He was involved in a road traffic accident in 1993 and suffered serious injuries which resulted in continuing medical problems. He was eventually supplied with special footwear to assist with mobility.

(b) The applicant was involved in a further accident in April 2002 which resulted in a period of sick leave. On his return to work in June 2002, there was a dispute about changes in duty rotas and the applicant went on sick leave with stress.

(c) On 11 September 2002, the applicant returned to his place of work at Antrim Depot to deliver a consent form relating to the disclosure of medical information and papers relating to an industrial injuries claim.

(d) The applicant states that after discussing his claim with Mr Kenny, his line manager, he went into the canteen. He discussed his anger management classes at Holywell with a colleague, Terry Hunter. Kevin Shand joined them and, referring to the fact that the applicant was wearing the special footwear supplied by Royal Mail, asked the applicant whether he was returning to work. The applicant accepts that he replied that "I was wearing them in case I had to kick the shit out of someone". He further accepts that he added "There's quite a few I would like to kick the shit out of".

After indicating that he would not return to Antrim as long as Mr Kenny worked there, he accepts that he stated on leaving to Kevin Shand, "You can repeat this conversation to your bum chum".

4. Later that day, Teresa McCaffrey and Kevin Shand complained that the applicant had threatened Mr Kenny while he was in the canteen. Mr Kenny telephoned Mr Wright who was at that stage covering for Mr Ferry who was Mr Kenny's line manager. Mr Wright spoke to both witnesses the next day and set up an interview with the applicant. Due to misunderstanding, which was accepted as genuine, the applicant did not attend that interview.
5. Teresa McCaffrey and Kevin Shand provided written statements to Mr Wright which said that in the canteen, the applicant referring to Mr Kenny said "Have you got a rifle to shoot that wanker in the head?" The applicant denies he made that statement.
6. The applicant was charged under the respondent's disciplinary procedure with threatening Mr Kenny to other members of staff on 11 September 2002. Mr Ferry set up a formal conduct interview which took place on 9 October 2002. The applicant had a trade union representative. Statements and other documentation were not supplied in advance but were supplied on the day. Some time was allowed to read the documents and no objection or request for further time was made. Mr Ferry decided that the applicant had issued a threat against Mr Kenny and the applicant was summarily dismissed.
7. The applicant appealed the decision. The papers were lost and the appeal was delayed. It was finally heard on 25 April 2003 by Miss Burnett, an Appeals Manager based in Glasgow. The appeal was dismissed. Miss Burnett concluded on 16 June 2003, after further

investigation, that the applicant had issued a threat against Mr Kenny and that summary dismissal was the appropriate penalty.

8. The tribunal considered the test laid down in British Home Stores –v- Burchell [1978] IRLR 379. Having heard the evidence of Mr Ferry and Miss Burnett, the tribunal is satisfied that the respondent believed that the applicant had issued a threat against Mr Kenny. The tribunal also finds that the respondent had reasonable grounds for that belief. The applicant had been unable to put forward any reason why two witnesses with whom he had no previous difficulty, would have made such statements unless they believed them to be true. The two witnesses put forward by the applicant to support his version of events were not in the canteen throughout the incident.

The tribunal also concludes that the employer carried out a reasonable investigation. Mr Ferry relied on the two initial witnesses and did not inquire as to whether there were any other witnesses.

However, the tribunal finds that any deficiencies in the initial investigation were cured by the subsequent investigation undertaken by Miss Burnett when she interviewed all the witnesses suggested by the applicant and also interviewed Mr Kenny. The tribunal relied on Post Office –v- Foley [2000] IRLR 827 (see paragraph 39).

9. The applicant argued that insufficient inquiry was made into the applicant's medical condition. Both Mr Ferry and Miss Burnett were aware of some of the medical background which was set out in the file. The tribunal is of the view that further inquiry in the circumstances of this case was not a step that a reasonable employer was required to make. The tribunal considered the decision of the Court of Appeal in Sainsburys Supermarkets –v- Hitt [2003] IRLR 23 and invited both parties to address it on this decision.
10. The applicant also argued that the decision was flawed by the reliance placed by the respondent on an earlier incident in which it was alleged that the applicant had brought a firearm into work. The applicant gave evidence that this was a replica assault rifle which was equipped to fire air gun pellets. His evidence was that he had it in the boot of his car and that Mr Kenny had asked to see it. He then alleged that Mr Kenny had run around the workplace pointing it at people. Neither of the two witnesses put forward to Miss Burnett as supporting this version of events did support it. Mr Kenny also denied it. The tribunal considers that the respondent was entitled to conclude that the applicant had previously brought a firearm of some description into work.

The tribunal further concludes that the respondent was entitled to take this incident into account when considering how to regard the applicant's statement "Have you got a rifle to shoot that wanker in the head?", and also to consider the context (see paragraph 3(d) above) in which that statement was made.

11. The applicant also argued that the delay in holding the appeal rendered the procedure unfair. The tribunal does not accept this argument. The delay although regrettable was accidental and caused the applicant no prejudice. The tribunal does not accept that the respondent failed to take into account the applicant's long service and clear record. Miss Burnett specifically referred to these points in her note of her conclusions dated 16 June 2003.
12. The tribunal concludes that the respondent has established that the summary dismissal was on grounds of gross misconduct; that the procedure was fair and that the decision to summarily dismiss the applicant was within the band of reasonable responses available to the respondent.

Chairman:

Date and place of hearing: 21 and 22 March 2005, Belfast.

Date decision recorded in register and issued to parties: