Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 327/06

CLAIMANT: Philip Gillespie

RESPONDENT: Moy Park Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and the claimant's claim is therefore dismissed in its entirety.

Constitution of Tribunal:

Chairman: Ms Turkington

Members: Mr Wilkinson

Mr Nicholl

Appearances:

The claimant did not appear nor was he represented at the hearing.

The respondent appeared and was represented by Mr O'Neill, Barrister-at-Law, instructed by Conn Burns, Company Solicitor.

The Claim

1. The claim was a claim of unfair dismissal.

The Issues

2. The issues to be determined by the tribunal were:-

(a) whether the respondent had shown the reason for the dismissal and that the reason was one of the reasons falling within Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 ("the Order"); and

(b) whether the dismissal was, in all the circumstances, fair or unfair

Disposal of the claim in the absence of the claimant

3. The claimant had not sought an adjournment of the hearing and nor had he made any contact with either the Office of the Industrial Tribunals or the respondent in relation to the hearing. The Notice of Hearing was sent to the claimant at the address specified in his claim form on or about 12^th April 2006. The tribunal was therefore satisfied that the claimant had ample notice of the hearing and it was appropriate to proceed with the hearing in the absence of the claimant.
4. In proceeding to hear the claim in the absence of the claimant, the tribunal had regard to Rule 27(5) and Rule 27(6) of the 2005 Rules which state as follows:-

"(5) If a party fails to attend or to be represented……… at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.

(6) If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties".

5. In reaching its decision, the tribunal therefore considered fully the content of the claimant's claim form.

Sources of Evidence

6. The claimant did not appear and was not represented at the hearing. The claimant did not submit any written representations in accordance with Rule 14(5) of the Industrial Tribunal Rules of Procedure 2005. The claimant's claim form was, however, fully considered by the tribunal.
7. The tribunal heard oral evidence from Nichola Montgomery, Night Shift Hygiene Manager who was the claimant's line manager. Ms Montgomery had witnessed the relevant incident and had taken statements from other witnesses. The tribunal also heard evidence from Matt McCann, Production Manager who had conducted the first disciplinary hearing against the claimant. Submissions were made by Counsel for the respondent.

Analysis of the Evidence

8. In his claim form, the claimant contended (in very brief terms) that he had not been guilty of verbal threatening behaviour and that his dismissal was unfair. The claimant did not appear at the hearing to give evidence in support of his contentions.
9. The tribunal took account of these factors in assessing the respective weight to be given, on the one hand, to the bald contentions set out by the claimant in his claim form and, on the other hand, to the evidence of the respondent's witnesses given on oath at the hearing. The tribunal considered it was appropriate to attach significantly less weight to the claimant's contentions than the detailed evidence given by the witnesses for the respondent. The tribunal accepted the evidence given by the respondent's witnesses since this evidence was given on oath and the witnesses were available for cross-examination by the claimant or his representative.

Contentions of the Parties

10. In his claim form, the claimant contended, as noted at para 9 above, that he had not been guilty of verbal threatening behaviour and that he had been unfairly dismissed, although he admitted that there had been an altercation between himself and Abdul Jan.
11. Counsel for the respondent submitted that the claimant had been guilty of behaviour which was contrary to the respondent's Disciplinary Rules and that the respondent had acted reasonably in treating this as gross misconduct. The respondent had adhered to the relevant disciplinary procedure and had under-taken as much investigation as was reasonable in the circumstances. The respondent had reasonable grounds for believing that the claimant was guilty of the relevant behaviour and the disciplinary sanction, ie dismissal, was fair and reasonable and fell within the range of reasonable responses.

Facts of the Case

Having considered the claim form submitted by the claimant, and having heard the evidence of the witnesses for the respondent and having considered the documents referred to in evidence, and the submissions made by Counsel for the respondent, the tribunal found the following relevant facts:-

12. The claimant was employed by the respondent as a night shift chargehand.
13. An incident occurred between the claimant and another night shift chargehand Abdul Jan on the night of 21^st January 2006. Ms Montgomery witnessed the claimant being aggressive towards another chargehand Mr Abdul Jan. Ms Montgomery separated the two chargehands and removed the claimant from the area.
14. The claimant was immediately suspended from duty by Ms Montgomery, pending further investigation, because she was concerned that another incident might occur.
15. Later that night, Ms Montgomery phoned Caroline McKinley, the HR Manager to inform her of the suspension. Ms Montgomery obtained statements from all members of staff who had been in the immediate area at the time of the incident. Statements were obtained from Abdullah Jan, Nichola Montgomery herself, Marco Dos Santos, Darren Burnside and a number of other individuals.
16. The statements were passed on to the HR Manager. Then on 23^rd January 2006, Mr Ciaran Doherty began an investigation into this incident. This investigation was concluded by 30^th January 2006.
17. When the investigation was concluded, Mr Matt McCann was asked, together with Margaret Tinsley, Assistant HR Manager, to review the notes of the investigation and conduct a disciplinary hearing with the claimant. A meeting was arranged for 1^st February 2006. The claimant was accompanied at this meeting by his union representative Ambrose Mackle. At the outset of the meeting, the allegations were outlined to the claimant and portions of the statements were read out. The claimant was given an opportunity to give his account. Mr McCann pointed out the difficulty for the claimant that most of the statements supported Abdullah Jan.
18. The claimant gave the names of approximately 3 further potential witnesses to the incident and Mr McCann adjourned the hearing to enable statements to be obtained from these individuals.
19. A letter dated 1^st February 2006 was sent to the claimant inviting him to a disciplinary hearing on 3^rd February 2006. This letter indicated stated that the allegation against the claimant was "verbal threatening behaviour and use of foul language and insubordination". The claimant was informed of his right to be accompanied at the hearing by a shop steward or work colleague.
20. The disciplinary hearing was duly held on 3^rd February 2006. All three of the potential witnesses named by the claimant had said in their statements that they had not witnessed anything relevant. Mr McCann read these statements out to the claimant and highlighted that they contained nothing material. The allegations were put to the claimant again and Mr McCann ran through the statements again.
21. Mr McCann then had to make a decision. He took into account the claimant's length of service, his performance to date, the seriousness of the allegation and whether or not the claimant accepted responsibility and his previous disciplinary history of a similar incident. Mr McCann was mindful of the respondent's duty of care to all employees and he considered there was a significant risk of a recurrence of the behaviour. The claimant had not accepted the allegation but a similar allegation had been upheld before. On checking the claimant's personal file, Mr McCann found a record of a warning issued previously for threatening behaviour.
22. Mr McCann considered that the claimant was guilty of gross misconduct and the appropriate penalty was summary dismissal. This decision was confirmed to the claimant by a letter dated 3^rd February 2006. The claimant was informed of his right of appeal.
23. The claimant appealed the decision by an undated letter addressed to Mr Julian Messam, Interim General Manager. An appeal hearing was duly convened on 22^nd February 2006. The hearing was conducted by Mr Messam. The claimant declined to be accompanied at the appeal hearing. The appeal hearing was adjourned and then re-convened on 2^nd March 2006. The outcome of the appeal was that the decision to dismiss the claimant was upheld and this was confirmed by a letter dated 2^nd March 2006 from Mr Messam to the claimant.

Statement of Law

24. The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order ("the 2003 Order") applies in this case. In very basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 – written statement of grounds for action and invitation to meeting

Step 2 – meeting

Step 3 - appeal

Where the employer is responsible for non-compliance with the statutory dismissal procedure, the dismissal is automatically unfair.

25. By Article 130(1) of the Order, it is for the employer to show the reason for the dismissal and that it is a reason falling within para (2). A reason falls within para (2) if it relates to the conduct of the employee.
26. Article 130(4) of the Order states as follows:-

"where the employer has fulfilled the requirements of para (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether I 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

(b) shall be determined in accordance with equity and the substantial merits of the case".

27. The leading case in relation to dismissals for misconduct is BHS v Burchill 1978 IRLR 379 (EAT). In the Burchill case, the Employment Appeal Tribunal set out the following principles:-

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question ………..entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. ……………First of all, there must be established by the employer the fact of that belief……… Secondly, that the employer had …reasonable grounds for that belief. And thirdly……….that the employer………had carried out as much investigation into the matter as was reasonable in the circumstances of the case."

This statement of principle is usually referred to as the "Burchill test".

Conclusions

28. In light of the facts found, the tribunal considered that the requirements of the statutory dismissal procedure were fully complied with in this case. The tribunal was of the view that the letter from the respondent to the claimant dated 1^st February 2006 constituted compliance with step 1 of the statutory procedure. Further, that the disciplinary hearing on 3^rd February 2006 and appeal hearing on 22^nd February complied with steps 2 & 3 of the statutory procedure. The tribunal therefore concluded that the dismissal was not automatically unfair and it was necessary for it to proceed to consider the issues outlined at para 2 above.
29. The tribunal was satisfied, based on the evidence and the facts found by the tribunal, that the respondent had shown the reason for the dismissal and that the reason was the claimant's conduct on the night of 21^st January 2006. As indicated at para 26 above, the conduct of the employee is a potentially fair reason for dismissal falling within Article 130(2) of the Order.
30. It was then necessary for the tribunal to consider whether the dismissal was fair or unfair in the light of the principles set out in Article 130(4) of the Order and elaborated upon by the EAT in the Burchill case as referred to at para 28 above.
31. The tribunal was satisfied that, at the time of the claimant's dismissal, the respondent believed that the claimant was guilty of the relevant misconduct. The tribunal was also satisfied that the respondent had reasonable grounds for that belief in view of the evidence given by those employees who had witnesses the incident on the night of 21^st January 2006. The tribunal was further satisfied that the respondent had carried out as much investigation as was reasonable in the circumstances. The respondent had obtained statements of evidence from all those members of staff who had been in the vicinity when the incident had occurred on 21^st January 2006 and had obtained further statements from a number of additional potential witnesses identified by the claimant.
32. The tribunal then proceeded to consider whether the dismissal was procedurally fair and concluded that it was. The respondent had carried out a thorough but speedy investigation and the claimant was fully aware of the allegations against him and had ample opportunity to answer those allegations at the disciplinary hearing. The claimant was also afforded the opportunity to appeal the decision and to be accompanied at both the disciplinary hearing and appeal.
33. Finally, the tribunal concluded that dismissal fell within the range of reasonable responses open to the respondent in the circumstances of this case. In reaching this conclusion, the tribunal took particular note of the current warning which had been issued to the claimant for a similar offence.
34. Accordingly, the unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Chairman:

Date and place of hearing: 26^th July 2006, Belfast.

Date decision recorded in register and issued to parties: