Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1524/05

CLAIMANT: David McMullan

RESPONDENT: Sperrin Metal Products Limited

DECISION

The unanimous decision of the tribunal is that claimant was not unfairly dismissed and the claim must fail.

Constitution of Tribunal:

Chairman: Mr T Browne

Members: Mr E Grant

Mr H Lysk

Appearances:

The claimant represented himself.

The respondent was represented by Mr C Hamill, Barrister-at-law, instructed by Worthingtons, Solicitors.

ISSUE

The tribunal had to determine whether the claimant had been unfairly dismissed by his employer, the respondent. It was common case that he had been dismissed, but the respondent asserted that this was on the ground of gross misconduct for failing to comply with a reasonable work instruction.

FINDINGS OF FACT

In determining the issue of dismissal, the tribunal had regard to the oral evidence and written material before it as well as to the submissions of the parties.

It was common case that the claimant had started work for the respondent in June 2002 at their metal processing factory in Draperstown, Co. Londonderry. He was taken on initially as a nightshift operative, but within a few days was moved to forklift truck driving, because he was qualified to do so. His work from then until the time of his dismissal was found by the tribunal to be primarily that of forklift truck driver, although he occasionally performed other ancillary tasks as instructed.

The tribunal found that the work of the respondent involved the assembly of metal products, including office storage units, and that the respondent would perform any necessary welding at their premises on their own machinery.

It was common case that the respondent had suffered a major setback in February 2005 when the premises were severely damaged by fire. This resulted in the loss of their painting operation, which they eventually were able to re-locate to Ballymoney by hiring another company's painting facility over weekends and holidays when the other company was not using them.

The tribunal found that the assembled units had to be taken to and from Ballymoney in a very tight and specific timeframe, and that the respondent had to organise for staff to be working night and day to catch up on the backlog of work.

The tribunal found that the fire not only caused major disruption to the day-to-day operation of the respondent's business but also caused great uncertainty for the long-term survival of the business.

By way of background to the issues raised by the claimant in this case, the tribunal found that just before Easter 2005, the respondent decided that all of their staff would be asked to work for at least two days of the Easter holidays, to try to make up some of the lost ground. Any staff who declined would be asked to give written reasons for not working the extra time and were told that they faced a written warning if they did not give such reasons.

The tribunal found that the claimant had been disciplined for not providing written reasons (as opposed to not working over Easter); he had verbally informed his superior that he could not work owing to a family holiday. As a result of his disciplinary proceedings, he was issued with a written warning. He lodged an appeal, but was unable to attend the re-scheduled appeal hearing and his appeal was dismissed.

The claimant raised this issue at the tribunal hearing, namely that his dismissal in August 2005 came about because he was being victimised by the respondent for keeping to his holiday plans at Easter.

The tribunal found that the claimant's dismissal occurred on Monday 16^th August 2005, after the claimant's return to work after a week's sickness.

Upon his return, he was spoken to by Mr Trainer, the respondent's operations manager, whose job included the allocation of employees' tasks on a day-to-day basis. Mr Trainer, who gave evidence to the tribunal, also played a key part in the attempts by the respondent to regain its momentum after the damage caused by the fire.

Mr Trainer instructed the claimant to assist at the welding machine, removing beams as they came through it. The claimant initially seems to have misunderstood the instruction, thinking that Mr Trainer meant him to drive the forklift truck as usual and remove the beams to another part of the premises.

Mr Trainer then saw the claimant driving a forklift truck and made it clear to him in forcible terms what he meant. He further told the claimant that he did not want to interrupt the man who had been covering on the forklift during the claimant's absence as he was already driving the forklift that morning. Mr Trainer told the tribunal that he needed someone to help at the welding machine because the employee who usually did it had not appeared for work.

The claimant questioned Mr Trainer's instruction because he had been working primarily as a forklift driver for three years and stated that he did not have experience of or training in working at the welding machine.

The tribunal viewed photographs of the machine and found from them and from the unchallenged evidence of Mr Trainer that the work required of the claimant at that machine would be straightforward and would require only a few minutes' instruction. As regards the claimant's concerns at the time about health and safety, the tribunal found that the claimant would be issued with goggles, to protect him from welding equipment in the vicinity of the machine, and with gloves, as the metal could be hot.

The claimant refused to work on the machine, primarily because he thought that he should drive the forklift, and was summoned to a disciplinary hearing later that day. At that hearing, the tribunal found from the witnesses' evidence and the handwritten notes that the claimant made it clear that he felt he was being picked on because of the incident at Easter. He was told at the disciplinary hearing that if he had such a complaint, there was a grievance procedure which he should follow.

The tribunal found from the evidence and from the notes of the hearing that the claimant was encouraged by the work colleague he brought with him to try the welding machine job for just one day. He then was warned by the respondent that failure to comply would render him liable to dismissal for gross misconduct.

The claimant was then given time alone to think the matter over, but returned after about 15 minutes and told the disciplinary panel that he would not work on the welding machine.

The claimant was informed by letter later on 16^th August 2005 that he was being dismissed for gross misconduct for failing to obey a reasonable work instruction; he was advised of his right to appeal, which was heard on 25^th August 2005.

At that appeal hearing, the respondent showed him the letter of his initial offer of employment, wherein he had signed an undertaking in accepting the offer acknowledging the need to be flexible. The claimant stated that he was "sticking to his principles", although the tribunal found that when asked at the disciplinary appeal hearing what those were, he did not elaborate.

The tribunal found from the evidence of the witnesses and from the note of the appeal and the letter of 26^th August dismissing the appeal that the respondent treated his refusal to follow the instruction as gross misconduct and that consequently his dismissal was affirmed.

The claimant declined to give evidence to the tribunal, but called Mr Patrick Gormley as a witness. Mr Gormley is Chairman of the respondent company, and chaired the disciplinary appeal hearing.

The tribunal found Mr Gormley to be very even-handed in his evidence, and accepted as genuine his expression of regret that the claimant would not change his mind about refusing to work on the welding machine, since he was the only employee ever to be dismissed by the respondent.

LAW AND CONCLUSIONS

Article 126 of the Employment Rights (Northern Ireland) Order 1996 states that "an employee has the right not to be unfairly dismissed by his employer"

Article 130 (1) of the 1996 Order requires that in determining whether the dismissal is fair or unfair, "it is for the employer to show –

(a) the reason (or, if more than one, the principal 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.

The tribunal was satisfied from the facts found that the respondent had discharged the burden of establishing the reason for the dismissal of the claimant as that of gross misconduct and that such reason, namely related to the conduct of the employee, is a potentially fair reason for dismissal under paragraph (2).

The tribunal then is required to consider in the terms of Article 130(4) whether the dismissal was fair or unfair.

Determination of that question depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and is to be determined "in accordance with equity and the substantial merits of the case".

It was the claimant's case that he was being victimised because of his failure to work at Easter and that consequently the instruction to work other than on the forklift was a punishment rather than a genuine business need. The tribunal concluded that, even if the respondent did take an unfavourable view of his refusal to work at Easter, it was the claimant's failure to do as he was instructed on 16^th August which set in motion the sequence of events which culminated in his dismissal.

The claimant made the case that he had repeatedly asked for but had never received a written contract of employment. The tribunal could not determine from the evidence whether a comprehensive written contract was ever received by the claimant. It seemed more likely to the tribunal that the claimant's contract was that in the letter of offer and acceptance of 12^th June 2002, and that only new employees would be supplied with the much more detailed document bearing Ver 01/05.

It was this letter of June 2002 which was produced and quoted to the claimant at his disciplinary appeal hearing. Its lack of detail was found by the tribunal to be compensated for in its clarity on two aspects.

The first is that the claimant was informed therein that he was to work as a "shop floor operative", and secondly that "to ensure efficient operation of the workforce", he was "to be flexible in the type of work required".

The tribunal concluded from the evidence of the respondent, which was not challenged by the claimant, that whilst working as a forklift truck driver was regarded amongst the staff as "a nice one to get", it did not attract a higher rate of pay or otherwise have better terms and conditions.

The tribunal therefore concluded that whilst the claimant was quickly moved to work as a forklift driver, this was the utilisation of his skill within the workforce but remained within the context of the initial contract of employment as shop floor operative.

The tribunal concluded that even without the damage caused to the respondent's business by the fire, the respondent was entitled to allocate tasks among its workforce as it saw fit in the management of its business. The tribunal accepted Mr Trainer's evidence that he urgently needed someone to help with the welding machine, and that the forklift driving was already being done by somebody capable.

The claimant raised the question of health and safety with the respondent from the outset of this incident. His concern as expressed to Mr Trainer was not that the process he was being asked to carry out was inherently dangerous but that he had not received training.

By virtue of Article 132 (1) of the 1996 Order, "an employee who is dismissed shall be regarded ……as unfairly dismissed if the reason (or, if more than one, the principal reason) is that

(c) he brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety"

The tribunal concluded however that the objection of the claimant was raised only in the context of bolstering his discontent at being moved from what he regarded as his entitlement to drive the forklift. The tribunal accepted the respondent's evidence in that regard as to the simple nature of the task, which could be picked up in a few minutes. The claimant did not dispute the respondent's assertion that he would have observed this straightforward process on many occasions and that he might previously have assisted other workers at the machine to strap up the bundles of beams.

The tribunal therefore concluded that the claimant's conduct and belief were not reasonable in that regard, as it was probable from the unchallenged evidence that he already knew that the process was not dangerous, and he was assured that the little training required would be provided on the job. In the opinion of the tribunal the evidence clearly indicated that his objection was to moving jobs at all as opposed to any reasonable objection on the grounds of health and safety.

From the evidence and notes of the disciplinary hearings the tribunal concluded that the respondent had made significant efforts to persuade the claimant to pursue any grievance by way of the company's internal procedure, and had given him time to reflect and to change his mind. Even the claimant's work colleague had tried to persuade him to do the welding machine job.

Such a refusal was in the opinion of the tribunal reasonably viewed by the respondent as gross misconduct because the successful refusal by one person to be flexible could cause a ripple effect amongst other staff. Such flexibility is viewed by the respondent as key to their survival.

It is important to bear in mind that the sanction imposed is not what the tribunal might have seen fit to impose, but whether the response of the employer was within the band of reasonable responses of a reasonable employer.

The tribunal unanimously concluded that the respondent had acted reasonably in deciding that dismissal was the appropriate sanction in this case after a process in which the claimant was given every opportunity to put his case, to follow an alternative method of resolving his grievances and to comply with what the tribunal concluded was a reasonable work instruction which fell within the scope of his contract of employment.

The dismissal was therefore fair and the claim must fail.

Chairman:

Date and place of hearing: 24 May 2006, Omagh.

Date decision recorded in register and issued to parties: