Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1288/05

CLAIMANT: David Ernest Alfred Woods

RESPONDENT: Department of Agriculture & Rural Development

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and his claim to the tribunal is accordingly dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr Devlin

Mr Nicholl

Appearances:

The claimant was represented by Mr Rodgers, Barrister-at-Law, instructed by A T Armstrong & Company Solicitors.

The respondent was represented by Miss Murnaghan, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

1. The claimant's claim was that he was unfairly dismissed by the respondent. The respondent contended that the dismissal was fair.
2. The issue before the tribunal was whether the claimant was unfairly dismissed by the respondent.
3. The tribunal heard evidence from the claimant and from Mr Michael Bready, Divisional Veterinary Officer and Mr Robert Campton, Establishment Officer on behalf of the respondent. The tribunal was also presented with an agreed bundle of documentation.
4. Having analysed the evidence, insofar as same is relevant to the issue before it, the tribunal made the following findings of fact:-

(i) The claimant was employed by the respondent's Omagh division as an Animal Health and Welfare Inspector and had been so employed in excess of 21 years at the effective date of termination of his employment on 16 May 2005.

(ii) It was common case that the claimant had carried out brucellosis blood sampling on a herd of cattle belonging to his wife on the 11 December 2002 and 6 February 2004 respectively. These tests were not overdue as alleged by the claimant. Furthermore, the tests were carried out in the respondent's Enniskillen division, without permission or authority from the Omagh division. The claimant claimed that he had had permission from Mr Irvine, a Senior Animal Health and Welfare Inspector in the Enniskillen division, before carrying out the first test on the 11 December 2002 and that this permission carried through to the second test. The respondent through Mr Bready carried out a preliminary investigation during which Mr Irvine adamantly denied giving any such permission. It was also common case that the claimant entered the results of both tests in the respondent's Animal and Public Health Information System (APHIS) using the code of a colleague, Mr Nethery. The claimant contended that the entries had been made with Mr Nethery's permission. However, Mr Nethery denied this during the course of the respondent's investigation.

(iii) The tribunal was also shown documentation and correspondence relating to areas of conflict of interest. The claimant had earlier completed forms in relation to this although in his evidence he claimed that he was not sure as to whether a conflict of interest arose when he personally performed the tests in the Enniskillen division. The tribunal finds that he was aware of a possible conflict of interest and chose not to alert his line manager or anyone else in the Omagh division regarding same.

(iv) Following the preliminary investigation, the respondent suspended the claimant with effect from the 15 October 2004 without pay. This is permitted by the respondent's procedure. In correspondence to the claimant dated 18 November 2004 Mr Campton states as follows:-

"Following a preliminary investigation by Veterinary Service into the brucellosis blood sampling carried out in relation to cattle for whom the herd owner was Mrs Jennifer Woods, who I understand is your wife, you have admitted carrying out the blood tests and having the APHIS code of a colleague to enter the details of those tests on to the system. As a result of these actions, you were suspended from duty without pay on 15 October 2004.

The investigation into this matter is now complete. Given the nature and seriousness of your actions, you are now required to answer a disciplinary charge of gross misconduct. This is a serious matter and may have implications for your future employment with this Department.

In accordance with paragraph 1082 of the Northern Ireland Civil Service Pay & Conditions of Service Code I must now ask you to provide me within 10 days of this minute, a written explanation of your actions. You may, if you wish, supplement this explanation orally in a meeting with me, at which you may be accompanied by a trade union representative or colleague.

Should you wish to avail of this opportunity please contact my secretary on 02890547666 to arrange a suitable appointment. You should also confirm in writing by return that you have received and understood this minute and if you intend to seek a meeting with me. Indicate who, if anyone, will accompany you."

The claimant subsequently engaged a solicitor to correspond on his behalf with the respondent. Considerable difficulties were encountered in relation to arranging a meeting. However, this ultimately took place on 21 April 2005, during which the claimant admitted that he had tested his wife's herd and entered the details using Mr Nethery's code. During this meeting the claimant made allegations regarding other employees whom he had believed had been guilty of offences and had not been investigated. The evidence showed that Mr Campton did investigate these allegations and found them to be without foundation.

(v) Neither the claimant nor his representative raised substantial procedural issues in relation to the respondent's conduct of the investigation, the disciplinary process, or the appeal hearing. Ultimately, on 16 May 2005, in accordance with procedures, the claimant was summarily dismissed for gross misconduct and given a right of appeal. The reasons for his dismissal are adequately explained in Mr Campton's correspondence to him of 16 May 2005. The Civil Service Appeal Board Hearing took place on 13 October 2005 and upheld the respondent's decision to dismiss the claimant and found that the disciplinary procedures, as contained in paragraphs 1060 – 1096 of the Northern Ireland Civil Service Pay and Conditions of Service Code, had been followed.

5. The tribunal heard submissions from both counsel. Miss Murnaghan submitted to the tribunal that the respondent would have been justified in dismissing the claimant on either of the two charges. She urged the tribunal to find that the respondent's decision to dismiss was within the reasonable band of responses. Mr Rodgers referred to the claimant's unblemished record and urged the tribunal to find that Mr Campton had been too heavily involved in the case to act impartially and that the dismissal was unfair.
6. The law in relation to the issue before the tribunal is governed by Articles 126, 127, 129 and 130 of the Employment Rights (NI) Order 1996. The tribunal also considered the cases of Iceland Frozen Foods Ltd -v- Jones 1992 IRLR 439 EAT, Post Office -v- Foley, HSBC Bank Plc (formerly Midland Bank Plc) -v- Madden 2000 IRLR 827 CA, Sainsbury Supermarket Ltd -v- Hitt 2003 IRLR 23 CA, Whitbread & Company -v- Mills 1998 IRLR 501 EAT, British Home Stores Limited -v- Burchell 1978 IRLR 379 EAT and W Weddel & Company Ltd -v- Tepper 1980 IRLR 1996 CA.
7. Having considered the evidence together with the submissions by both parties, and having applied the principles of law to the facts as found the tribunal concludes as follows:-

(i) The respondent has complied with the principles laid down in the case law relating to a reasonable investigation and procedures and in the particular circumstances of the case the decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted.

(ii) The claimant was not unfairly dismissed and his claim to the tribunal is therefore dismissed.

Chairman:

Date and place of hearing: 21 June 2007, Omagh

Date decision recorded in register and issued to parties: