Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 411/04

APPLICANT: Noel Benson

RESPONDENT: Ulster Carpet Mills

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed and that the respondent does pay to the applicant the sum of £2,438.00 by way of compensation.

Appearances:

The applicant was represented by Mr J McCrisken, Barrister-at-Law, instructed by Wilson & Nesbitt Solicitors.

The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by Jones & Cassidy Solicitors.

EXTENDED REASONS

1. The applicant took up employment with the respondent on 1 November 1993 as a process operative. After a number of jobs he was finally appointed as a yarn planner, a post which he retained until his dismissal on 20 November 2003. There were written terms of conditions of employment of which the applicant was aware. Those terms and conditions made no reference to the company's IT policy. Nor did they contain any specific reference to the company's policy on the use of company telephones for personal/private purposes. The discipline section of the terms and conditions referred to three categories of misconduct:-

(i) Minor misconduct including such matters as absenteeism, lateness, careless work, untidiness, or persistent shortcomings on assessment.

(ii) Major misconduct such as dangerous horseplay, wilful wastage of material, excessive time away from the job, unauthorised absence, leaving the premises or site without permission, or persistent absenteeism.

(iii) Gross misconduct including theft, physical violence, refusal to carry out reasonable instructions, obscene behaviour, fraud, wilful damage to or gross negligence of company's customers or other employees' property/equipment/tools.

These lists were expressed to be not exhaustive. The disciplinary rules indicated that where a final written warning was given, the warning would contain clear notice that another incident of misconduct within one year would result in dismissal.

The company issued a policy document relating to the use of IT equipment which was issued to all employees including the applicant. It contained guidelines regarding the general use of IT systems and in relation to e-mails, including such matters as confidentiality and inappropriate behaviour. Under this section was a provision relating to personal use stating that the respondent permitted personal use of the Internet and e-mail facilities only during lunch-times/breaks. The policy document went on to give guidelines as to how, or rather how not, the equipment should be used when being used for personal use. Other portions of the guidelines relate to inappropriate web sites and other matters.

As regards the use of telephones the applicant suggested that the use of company telephones for personal purposes was widespread. The respondent's evidence was that it was recognised that some personal use might be permissible but that staff were expected to use the phone sparingly and confined to short calls relating to problems with children, doctors etc and that there had been no problem with this generally.

On 20 November 2002 the applicant was issued with a final written warning relating to a breach of the company's IT policy in the sending of inappropriate e-mails. The document incorporating this warning stated that the warning would remain active for a period of twelve months and that if another incident of misconduct occurred within the twelve month period, or if there was any further misuse of the company's IT policy, dismissal might result. In January 2003 the applicant was interviewed by his line manager about personal use of the phone. According to the applicant his manager was interested in one call only, to Dublin. The applicant explained that that related to difficulties with a loan and that that was the end of the matter. According to the respondent the interview focused on the time the applicant had spent on the phone over the previous two months. This was recorded in a note of that interview. The note indicated that the applicant was having problems with banks but that these problems had now been sorted. The note showed that the applicant was told that he was there to work and to give one hundred per cent in doing so. According to the respondent's evidence the conversation also indicated that personal calls within reason were allowed but that it had to be within reason. Following that interview the applicant was put on three monthly reviews by a letter which included, as one of the reasons for that course of action, the inappropriate use of the telephone. At the hearing it was suggested on behalf of the applicant that other persons might have made some of the phone calls which were the subject of this interview.

The applicant's line manager indicated that the applicant's behaviour came to his notice again in October 2003 both as a result of his own observation and because another manager had enquired if there were any problems. The applicant's line manager stated that he was concerned about the wilful misuse of time and he sought the Internet and phone records. Having considered the records a meeting was held with the applicant at which the applicant was suspended under the provisions in that behalf in the terms and conditions of employment. He was advised that further investigations were to take place into misuse of the Internet, in breach of the company's IT policy and that he was on a final written warning for a similar offence. The applicant, according to the record of that interview said that he was unable to use the Internet between the hours of 8.00 am and 12 noon and between 2.00 pm and 5.00 pm. On 12 November 2003 there was a further meeting with the applicant. The applicant's trade union representative was in attendance. According to the record of that meeting, which was not challenged by the applicant, it was not a disciplinary meeting but took place to indicate to the applicant that, having been suspended on the grounds of misuse of the Internet, there was now an issue as to misuse of the phone. A disciplinary meeting was provisionally arranged for 18 November. The applicant and his trade union representative were also advised that the relevant evidence would be made available at the disciplinary hearing.

A disciplinary interview took place on 18 November as arranged. It was explained that the letter setting up the meeting had outlined misuse of company facilities and time specifically of the telephone and the Internet. It was made clear that there was no question of inappropriate use of the Internet as there had been before. It was suggested, on behalf of the applicant, that the previous written warning was for inappropriate e-mails and that telephones are not covered under the Internet policy. It was accepted by the applicant at this interview that he did use the telephone to the extent, he suggested, of ten minutes per day, and offered to reimburse the company. He also suggested that his usage of the Internet was within the confines of the access period between 12 noon and 2.00 pm. He suggested that he did not take a morning or an afternoon break and that he did not always take his lunch at the same time. Following some discussion of the Internet aspect of the matter the applicant's trade union representative indicated that the applicant was holding his hands up but that he regularly worked extra hours to ensure that his job was done. The interview was adjourned to be reconvened on 20 November.

The telephone and Internet records were produced to the applicant and his trade union representative. They were afforded time to look at them. They did so. No point was taken as regards to any question of insufficiency of time being allowed. It was accepted, on behalf of the applicant, at the tribunal hearing that the telephone calls referred to in the records were made by the applicant.

The meeting reconvened on 20 November 2003. There were no further representations. The conclusion reached was that the applicant was in breach of the company's IT policy, that he had misused the company's facilities and time in relation to the use of the telephone, that this behaviour constituted gross misconduct and that summary dismissal was to result. The applicant appealed. At the appeal hearing the applicant's representative suggested the applicant had committed no wrong. He did not take morning breaks. He did not use the Internet outside approved access periods. He regularly stayed beyond his official finishing time. He suggested that this should be taken into account regarding the appeal decision. It was suggested that the window for the applicant for use of the Internet was 12 noon to 2.00pm. The respondent's submission at the hearing was that the applicant's lunch break ran from 12.45 pm to 1.30 pm and that this was his window. At the appeal the applicant accepted that he used the phone but less frequently during normal working hours. Following the appeal the operations director, who had conducted the appeal, wrote to confirm the upholding of the decision. The operations director stated in evidence to the tribunal that he was confirming the decision to dismiss the applicant summarily.

2. It was submitted on behalf of the applicant that it was important that employees should know what was expected of them. This was clear from the Labour Relations Agency Code of Practice. In Lock –v- Cardiff Railway Company Limited [1998] IRLR 358 it was said to be essential that employees should know what type of conduct would, on first breach, lead to dismissal. The applicant did not know what he would be in for if he broke the telephone rules and the Internet policy was unclear. Personal use of the Internet was covered in a line and a half. It was suggested that the Internet policy was brought in to cover improper use and that personal use was not regarded as an important matter. The procedures were deficient in this respect. There should be guidance on what constituted gross misconduct. The applicant could not be said to have contributed in any way to his own problems if the nature of misconduct was not made clear. Had he been aware of the prospect of dismissal he would not have carried out his actions.
3. On behalf of the respondent it was submitted that gross misconduct was clearly identified in that examples of gross misconduct were clearly set out in the staff handbook; the applicant had been warned about his use of the telephone; he had received a final written warning for breach of the Internet policy. It was ridiculous to suggest that he did not know he was doing anything wrong. The charges brought against him might have been un-enumerated instances of the general category of gross misconduct and might not have been specifically provided for but they could be seen for what they were by comparison with those offences of which details were given.

If it was found that the respondent had erred and that the conduct concerned amounted only to major misconduct, which it certainly should, then both the disciplinary procedure and the final written warning indicated that dismissal could follow. It was accepted, on behalf of the respondent, that the staff handbook did not envisage summary dismissal except in relation to gross misconduct. If the tribunal considered that the matter was major misconduct then dismissal was still reasonable and the applicant's contributory fault should be taken into account to the extent of a one hundred per cent reduction.

4. In the tribunal's view the applicant did know that what he was doing was wrong. While the rules relating to personal use of the Internet were brief they were clear. The tribunal considered that the applicant's suggestion that he believed himself entitled to access the Internet at any time during the two hour window which was available, rather than merely during his own lunch break, was disingenuous, as was his further suggestion that he used time imported from other breaks at other periods of the day which he did not take. The tribunal considered it equally disingenuous for the applicant to suggest that personal use of the company's telephone was permitted, in effect, to an unlimited extent. In the tribunal's view it is unnecessary to have a specific provision in the disciplinary code to establish that while at work employees are expected to do their employers work rather than their own. If the applicant had been in any doubt about his position as regards telephone calls he could have been in no further doubt after the matter had been specifically brought to his attention in January 2003 when he had been given a warning and put on a three month review. In that regard the tribunal prefers the evidence of the respondent as to the nature and content of the discussions which took place in January 2003 which was consistent with the contemporaneous records and, indeed, the action taken. The applicant's suggestion, that only one telephone call was discussed, was not. There was some suggestion, in cross-examination, that the telephone use prior to the January interview had not been sufficiently thoroughly investigated. The tribunal rejects this. The matter was not raised at any time during those discussions and, according to the evidence which the tribunal has accepted, the applicant accepted that his telephone use had been excessive.

The disciplinary code did not include any specific reference to either telephone use or to Internet use in the examples of the various types of misconduct. In the tribunal's view it is not necessary that they should. It would be a difficult task indeed to list all possible offences which might be committed. The generalised examples given were, in the tribunal's view, adequate to enable persons to get a fair picture of the gravity of any offence which they might commit.

The statements by and on behalf of the applicant at both the disciplinary interview and the appeal were more in the nature of mitigation than denial. Indeed, during the course of the disciplinary interview the applicant's representative stated, according to the uncontested record, that the applicant was holding his hands up. The tribunal is satisfied that the investigation was a reasonable one and further, that it was reasonable for his employers to conclude that he had done something wrong and that he knew he had done something wrong.

5. The next issue for the tribunal was whether the conclusions reached by the respondent and the punishment imposed were reasonable. The respondent concluded that the applicant was guilty of gross misconduct and that, consequently, he should be summarily dismissed. In the tribunal's view this was not a reasonable conclusion. The respondent's Personnel Manager suggested that excessive use of the telephone for personal use and the use of the Internet on company time could be equated to wilful damage to company property, one of the examples of gross misconduct. In the tribunal's view this proposition is untenable.

According to both of the respondent's personnel who carried out the disciplinary interview and the appeal they regarded the offence as gross misconduct by taking into account the applicant's length of service, his consequent knowledge and his prior disciplinary record, which involved an Internet offence. In the tribunal's view these factors should certainly come into play in considering the appropriate sanction, but not in relation to the seriousness of the original offence. This view is in accordance with the evidence given by the respondent's Personnel Manager who indicated that offences should be considered initially on a free standing basis with the disciplinary record then being considered. Accordingly, the tribunal finds that the finding of gross misconduct and the consequent summary dismissal were unfair.

While the finding of gross misconduct and the consequent summary dismissal may have been unfair that does not mean that the applicant himself was blameless. On the contrary, as has already been indicated, the tribunal considers that the applicant was well aware that he was doing wrong. In the tribunal's view, the applicant's conduct, given his existing disciplinary record, justified dismissal, though not summary dismissal. The tribunal considers that it would be just and equitable in all the circumstances that the applicant should receive the amount of notice pay to which he would have been entitled had he been dismissed with notice, but that no other compensation should be payable. The tribunal finds that the amount of the basic and the compensatory award should be reduced by one hundred per cent except as regards the period of notice. The applicant had been in the employment of the respondent for just over ten years and was therefore entitled to ten weeks notice. The parties agreed that the applicant's net pay as at the date of his dismissal was £243.80 per week. Accordingly, the tribunal directs that the respondent do pay to the applicant ten weeks pay at that rate making, in total, the sum of £2,438.00.

6. Your attention is drawn to the notice below which forms part of the decision of the tribunal.

INTEREST

7. This is a relevant payment for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Dates and place of hearing: 17 September 2004 and 14 January 2005, Belfast.

Date decision recorded in register and issued to parties: