Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2452/04

CLAIMANT: Bernard Lynch

RESPONDENT: Manor Mouldings (NI) Ltd

T/A Manor Mouldings

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the respondent shall pay to the claimant the sum of £4,606.88.

Constitution of Tribunal:

Chairman: Ms A. Wilson

Members: Mr Fields

Mr Devlin

Appearances:

The claimant was represented by Mr M. Canavan, Solicitor of McGuinness and Canavan, Solicitors.

The respondent was represented by Mr M. Lavery, Barrister-at-Law, instructed by Brangam Bagnell & Co., Solicitors.

The issues for the tribunal were:

1. Was the claimant unfairly dismissed contrary to Part XI, Chapter 1 of the Employment Rights (Northern Ireland) Order 1996

and

If the claimant was unfairly dismissed what is the appropriate remedy?

Sources of evidence

2. The tribunal considered the originating application, the notice of appearance, the bundle of documents handed in by the claimant and the oral evidence of Mr Doherty, the managing director of the respondent organisation, Mr Gardner, the production manager and the claimant.

Findings of relevant fact

3. The claimant is a fitter and was employed for 7 years by the respondent. The respondent manufactures and installs plaster and concrete mouldings.
4. The respondent is a small organisation employing 12-15 people including teams of fitters. Mr Doherty is the managing director of the organisation and Mr Gardner is the production manager. Mr Gardner has been with the organisation 6 years and has some supervisory responsibility.
5. Prior to his employment with the respondent, the claimant was self employed and it was agreed between the parties at the commencement of the employment that the claimant was allowed to do private moulding work in his own time.
6. The claimant was issued with a written contract of employment after about 4 years in employment. The following relevant terms and conditions were included in the contract:-

Under the heading Company Vehicles:-

"Vehicles are supplied for use on Company business only. No employee is permitted to drive any vehicle owned, hired or leased by the company unless authorised by management".

Under the heading disciplinary procedures gross misconduct expressly includes:-

"Unauthorised use of company vehicles and equipment".

Under the heading Procedure for Gross misconduct:-

"Committing gross misconduct will lead to an interview with the managing director. At this interview you will be given an opportunity to offer an explanation for your misconduct. If it is decided that an offence has occurred then you will be summarily dismissed i.e., without notice and without paying in lieu of notice. (emphasis as appears in contract).

Under the heading Disciplinary Interviews:-

"An employee has the right to be accompanied by a colleague at each stage in the procedure.

The appropriate member of management is entitled to be accompanied or deputised at disciplinary interviews by another member of management if so desired".

Under the heading Appeals Procedure:-

"Where an employee feels that action taken against them is unjustified or unfair they have the right of appeal. Any appeal must be made in writing, stating the grounds on which it is made, within 3 working days to the Managing Director, who will hear it within 5 working days of receipt of appeal, or as soon afterwards as is reasonably practicable.

The result of an appeal hearing will be notified to the employee in writing, within 3 working days".

7. The claimant was supplied with a company van, tools and a generator for use in connection with his employment with the respondent.
8. On a number of occasions the claimant had been given permission to use the company vehicle for personal purposes on request. It was common case that the claimant was not allowed to use the company property in connection with private work carried out by him. The claimant regularly carried out private work and had his own van, tools and generator for this purpose.
9. On one occasion during his employment, the claimant used his own vehicle in connection with his work. This occurred for a six week period when the respondent's vehicles were in use on a job in Athlone. The claimant was unable to do the Athlone job for personal reasons and it was agreed between him and the respondent that he would continue to work locally during this period using his own vehicle. This arrangement worked to the mutual benefit of the parties.
10. The claimant was a good worker. He was in the words of Mr Doherty, "not the type of man to abuse his position". There were no complaints about his work and he had a clean disciplinary record.
11. On the Saturday 10 July 2004, the claimant was carrying out private work in Fahan in Donegal. On that morning his van wouldn't start and so he travelled to the job in the van he used in connection with his employment. He had an arrangement with the owner of the property he was working on, that he would be able to gain access to the property for the purpose of using a generator. In the event when he arrived at the property, he was unable to gain access and so he used the generator which was the property of the respondent.
12. While the claimant was working on this job, Mr Doherty called to the property to collect monies due to him by the owner of the property. He became very angry when he found that his van and generator were being used by the claimant for private work. He said that he would see the claimant the following Tuesday (Monday being a Bank holiday) and he left the site.
13. On the following Tuesday the claimant was interviewed by Mr Doherty in the presence of Mr Gardner. He was not informed prior to the meeting that it could result in his dismissal. He was not given a copy of his written contract or reminded of the disciplinary procedures and he was not reminded of his right to be accompanied by a colleague, or afforded an opportunity to be so accompanied.
14. Mr Gardner took notes during the meeting. Mr Doherty asked for an explanation as to why company property was used without permission. The claimant accepted that he was in the wrong. He apologised. He explained the difficulty in relation to his van and the fact that an arrangement to use a generator on site had fallen through. It is disputed that the claimant explained the position in relation to the generator at this meeting. However, the tribunal find the claimant to be a credible witness and preferred his evidence on this point to the evidence of the respondent's witnesses. In particular the tribunal found Mr Doherty to be evasive regarding notes taken during the meeting. In the absence of these notes and for the above reasons the tribunal find on the balance of probabilities that the claimant did explain the position in relation to the generator at the meeting.
15. Following his explanation, the claimant was asked to leave the meeting. After a short break he was invited back and told that he was to be immediately dismissed.
16. A letter formally terminating the claimant's employment was prepared by the respondent. It included advice in respect of an appeal and was left at the respondent's premises for collection. In the event the claimant never received the letter as it went missing following a break in at the respondent's premises.
17. In the days following the termination of his employment, the claimant took legal advice following which he lodged an appeal with the respondent dated 19 July 2004. The appeal stated two grounds of appeal. It relied on the failure of the respondent to allow the claimant the time or opportunity to be accompanied by a colleague at the disciplinary meeting and secondly, on the failure of the respondent to inform the claimant of his right of appeal at the meeting or subsequently to confirm it in writing.
18. The appeal was heard by Mr Doherty on 10 August 2004. The claimant was accompanied by a colleague on this occasion. At the appeal hearing the claimant relied on his earlier use of his own vehicle for company purposes in an attempt to justify his actions on 10 July.
19. The appeal was dismissed and this decision was communicated to the claimant by letter dated 24 August 2004.

Applicable law

20. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer.

Article 130 sets out what an employer is required to show to establish that a dismissal is not unfair.

To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the reasons set out in Article 130 which can render a dismissal fair. If an employer establishes 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. The employer must show that the dismissal was within the range of reasonable responses.

Application of Law and Findings of Fact of the Issues

21. The tribunal is satisfied that the respondent has shown the reason for the claimant's dismissal (gross misconduct as set out in the contract of employment) and that the reason is one of the statutory reasons that can render a dismissal fair.
22. The tribunal finds however that the respondent's conduct in dismissing the claimant did not fall within the range of reasonable responses. Furthermore, the tribunal find that the procedure followed by the respondent was flawed.
23. The claimant was a good worker with 7 years service and a clean disciplinary record. He was variously described by Mr Doherty as "a good man" and "not the type of man to abuse his position". No weight was given to this by the respondent in deciding to dismiss.
24. The claimant had an explanation for using the company vehicle and equipment without authorisation and no weight was given to this explanation which was accepted as genuine by Mr Doherty in respect of the van and unchallenged in respect of the generator.
25. The claimant had previously used the company van for private purposes albeit not connected with work and he had received permission to do so.
26. The claimant had used his own vehicle for company work and raised this in mitigation at his appeal and no weight was given to it.
27. Proper disciplinary procedures were not followed and those followed were in breach of the express terms of the employment contract.
28. The tribunal do not accept Mr Lavery's point that any defect in the first disciplinary meeting in not reminding the claimant of his right to be accompanied by a colleague and the defect in not allowing him the opportunity to be accompanied were remedied at the appeal hearing when the claimant was accompanied.
29. The appeal process was flawed in that it was heard by Mr Doherty who conducted the first disciplinary hearing and who made the decision to dismiss. The tribunal do not accept the argument that there was no alternative open to the respondent due to the fact that the organisation was a small one whose internal structures provided no mechanism for an alternative. The tribunal formed the view that the initial disciplinary meeting could have been carried out by Mr Gardner, the production manager leaving Mr Doherty free to carry out any appeal.
30. In reaching its finding the tribunal were mindful of the fact that unauthorised use of the company vehicle or company equipment were expressly described in the contract of employment as gross misconduct which would result in summary dismissal. However, the tribunal were persuaded by Mr Canavan's argument that the fact that conduct is described in a contract of employment as gross misconduct

does not mean that an employer should be able to rely on it to dismiss in circumstances where it would otherwise be unreasonable to do so.

In advancing this argument Mr Canavan relied on two cases:

Ladbroke Racing Ltd (applicants) -v- Arnott & Others (respondents) 1983 IRLR 154 and Taylor (applicant) -v- Parsons Peebles NEI Bruce Peebles Ltd (respondents) 1981 IRLR 119. In both cases dismissal occurred for gross misconduct as described in the employment contracts and which in accordance with the contracts warranted dismissal. The following extract from the Ladbroke decision is compelling:-

"The EAT had not erred in holding that the appellants had acted unreasonably in dismissing the respondent betting shop employees on grounds of placing bets on behalf of outside persons or condoning the placing of such bets, not withstanding that the appellants' disciplinary rules specified that such conduct would result in immediate dismissal…..

The statutory test of fairness is superimposed on the employers disciplinary rules which carry the penalty of dismissal. The standard of acting reasonably set by [Article 130 of the Employment Rights (Northern Ireland) Order 1996] requires an employer to consider all the facts relevant to the nature and cause of the breach, including the degree of its gravity. If, therefore the employer has a rule prohibiting a specific act for which the stated penalty is instant dismissal, he does not satisfy [Article 130] by imposing that penalty without regard to any facts or circumstances other than the breach itself. If that was a legitimate approach, it would follow that any breach of rules so framed would constitute gross misconduct warranting dismissal irrespective of the manner in which the breach occurred".

In the Taylor case the following extract is also compelling:-

"In determining the reasonableness of an employers decision to dismiss, the proper test is not what the policy of the employer was but what the reaction of a reasonable employer would be in the circumstances. That the employers code of disciplinary conduct may or may not contain a provision to the effect that anyone striking a blow would be instantly dismissed therefore is not the point. The provision must always be considered in the light of how it would be applied by a reasonable employer having regard to equity and the substantial merits of the case. That includes taking account of the employees length of service and previous record".

For the above reasons given and in reliance on the legislation, the law governing unfair dismissal generally and the cited cases, the tribunal unanimously finds the dismissal in this case to be unfair.

Compensation

The tribunal make the following award based on a schedule of loss handed in at the hearing and agreed between the parties in so far as it sets out the appropriate basic award.

Agreed weekly net wage - £287.93

Period of employment. September 1997-13/July 2004 = 6 years continuous employment.

Claimant's date of birth – 7/10/1953.

Basic Award

6 years x 1½ x £287.93 = £2,591.37

Notice Pay

6 years x £287.93 = £1,727.58

The tribunal find that in the circumstances of this case it would not be just and equitable to make any reduction in the basic award.

Compensatory Award

The tribunal have no evidence of loss sustained by the claimant in consequence of the dismissal other than an amount claimed in respect of loss of statutory rights. The tribunal award the sum of £287.93 in respect of lost benefits. The total amount awarded is £4,606.88.

Recoupment provisions do not apply as the claimant was not in receipt of benefits subject to which the provisions apply.

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

Chairman:

Date and place of hearing: 16 March 2006, Londonderry.

Date decision recorded in register and issued to parties: