Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 146/07

CLAIMANT: Marian Teodorescu

RESPONDENT: Twisters Northwest Gymnastics

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr A Burnside

Mr G Hunter

Appearances:

The claimant appeared and represented himself with assistance from his son Aposiol Mihai.

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

REASONS

1. Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter. The tribunal heard oral evidence from Ms Terri Fisher and from Ms Ciara Doherty on behalf of the respondent and from the claimant, and the tribunal also had before it two bundles of documents submitted on behalf of, respectively, the respondent and the claimant and, further, additional documents were placed before the tribunal in the course of the hearing, by agreement.
2. The claimant's claim was contained in a claim form dated 10 January 2007 and in that claim the claimant claimed unfair dismissal. By response received by the Office of Tribunals on 6 March 2007 the respondent confirmed that the claimant had been employed by the respondent and had been dismissed on grounds of alleged gross misconduct. It was contended that the dismissal was fair in all respects.
3. Accordingly the tribunal had to determine the claimant's unfair dismissal claim against the respondent.

THE TRIBUNAL'S DETERMINATIONS OF FACT

4. On foot of the oral and the documentary evidence before it, on the balance of probabilities the tribunal determined the following facts which were material to the issues to be decided:-

(a) The tribunal heard the oral evidence of the various witnesses. It must be said at the outset that the tribunal had no difficulty whatsoever with the oral evidence from Ms Fisher and Ms Doherty on behalf of the respondent which was forthright, credible and consistent. However the tribunal found a part of the claimant's evidence to be generally unsatisfactory, especially certain evidence given by the claimant concerning his post-dismissal employment and earnings. That evidence was inconsistent and contradictory. Accordingly, where there was a conflict between the evidence of the claimant and of the respondent's witnesses, the tribunal preferred the latter.

(b) Ms Fisher was the sole proprietor of the respondent business, "Twisters", a gymnastics business which at the material time had been in existence for approximately four years. Ms Fisher herself was an experienced gymnast who had competed at a high level and who was also a teacher of gymnastics. The tribunal had sight of the document entitled "British Gymnastics – Health, Safety and Welfare Policy for Coaches and Clubs (2001)". The tribunal accepted that that code or policy formed the basis of the conduct of the gymnastics business on the part of Ms Fisher. Twisters was located at Springtown Industrial Estate in Londonderry.

(c) The claimant is Romanian by birth. He has had a distinguished career as a gymnast of international standing and has competed at a very high level. The tribunal had sight of the claimant's curriculum vitae in that regard. The claimant's gymnastic skills and ability to coach to the highest level were not in issue in this case as regards technical expertise. After working for some time in Italy, the claimant came to the UK. He was initially employed in Northern Ireland for a short period prior to commencing employment with Twisters on or about 19 September 2005.

(d) As part of the initial terms of employment agreed, Ms Fisher arranged for the claimant to lodge with her brother. She reimbursed her brother a weekly sum towards the expenses of providing such accommodation. That arrangement apparently had first emerged during discussions between Ms Fisher and the claimant's previous employer in Northern Ireland at some time in August 2005. That resulted in negotiations concerning not only hours of work and pay but also the inclusion of accommodation in the offer of employment. Having been employed by Twisters in September 2005, the claimant then requested from Ms Fisher longer hours of work, his intention being that his spouse and his son could join him in Northern Ireland. Agreed hours amounting to approximately 30 hours per week were offered by Ms Fisher and accepted by the claimant. This new arrangement which was to commence at the start of 2006 did not expressly include the offer of accommodation costs. Ms Fisher's understanding certainly was that the claimant would secure his own accommodation at his own expense when his wife and family joined him in Northern Ireland. After reaching that revised agreement, but before his wife and son joined him in Northern Ireland (which was around Easter 2006 the tribunal understands), the claimant continued to lodge with Ms Fisher's brother. Ms Fisher saw that as an interim arrangement only.

(e) The claimant began to look for accommodation and he requested Ms Fisher to meet the expense of that. Ms Fisher indicated to the claimant that she was unable to do so. There seems to have been some type of ongoing difference or disagreement about this accommodation issue between the claimant and Ms Fisher which indeed appears to have continued until October 2006. Around that time Ms Fisher offered to pay an amount of £40.00 towards the claimant's accommodation costs. That offer was not accepted by the claimant. He apparently wished either more than the sum offered or indeed the entire accommodation costs to be met by Ms Fisher.

(f) In mid-September of 2006 (the tribunal is not sure of the precise date) Ms Doherty telephoned Ms Fisher at home to inform Ms Fisher that the claimant had left Twisters in order to attend to some personal task. Apparently the claimant was away from the premises for approximately 20 minutes or so. The following day Ms Fisher spoke with the claimant and informed him that he should first seek permission from her if he needed time off during working hours. Ms Fisher at that time also clarified to the claimant that if she were not to be present in the gym the claimant could not leave. The reason explained to the claimant by Ms Fisher for that was that other members of staff were insufficiently qualified and Twisters needed a fully qualified coach to be present at all times, importantly for insurance and also for other significant reasons. Ms Fisher assumed that the claimant had previously misunderstood the situation so she took care to explain what was required to him. The claimant confirmed that he was now aware that he required to seek permission if he wished to leave the premises during his working hours.

(g) On or about 13 October 2006 Ms Doherty informed Ms Fisher that the claimant had left work prior to the end of his period of paid work, leaving Ms Doherty on her own. Ms Fisher very shortly thereafter spoke with the claimant and she informed him that, notwithstanding that he was on a work break at the time he left the premises (which he had admitted to doing), this was a paid break and he was required to stay on the premises. That day the claimant apparently raised a number of work grievances with Ms Fisher including the issue of the accommodation costs and also some matters concerning his P45 and his P60. The claimant also seems to have been aggrieved at his not being accorded the status in discussions concerning the business which he felt his qualifications deserved.

(h) In the early part of the following week it appears that the claimant endeavoured to bring his grievances to the attention of the parents' committee of Twisters by trying to organise a meeting with the parents. The parents' committee it seems existed for such purposes as fundraising and assisting in the organising of attendance at gymnastics events and competitions. Ms Fisher indicated that the claimant did not have her permission to do that. Indeed, Ms Fisher was of the view that any difficulties that the claimant might have had with her were of no concern to the parents' committee.

(i) On 19 October 2006 there occurred an incident whereby a young gymnast ("M") had words spoken to her by the claimant in the course of a gymnastics class. M, it seems, felt extremely embarrassed and ridiculed in front of the other class members. M was apparently extremely upset regarding this and as a result she refused to continue to take part in the group. Indeed M left and did not return to Twisters for a period of four months after this. On that day Ms Fisher spoke with the claimant to seek an explanation for what had occurred. Ms Fisher informed the claimant that M had claimed that the claimant was very negative and critical of her, thus causing her to become extremely upset. Ms Fisher expressed her great disapproval as to what had transpired. She stated to the claimant that there was to be no repetition of this type of conduct on his part. At the end of October 2006 Ms Fisher discussed with all staff the issue of the importance of staff remaining on the premises. She made it clear that staff members were to be on the premises at all times during working hours, without exception, and particularly so as Ms Fisher was then shortly about to leave the country for two weeks on vacation. She provided to all employees, including the claimant, the firm's revised written guidelines regarding conduct. Ms Fisher then departed on vacation for two weeks, returning on 14 November 2006.

(j) On Ms Fisher's return she was informed by Ms Doherty that the previous day an incident had occurred between the claimant and a young gymnast, ("S1"), where it was reported that the claimant had asked S1 if she was "disabled". Apparently S1 was extremely upset at the way in which she was spoken to by the claimant. It was also reported to Ms Fisher that there had been an incident on 31 October 2006 where the claimant had embarrassed another young gymnast, ("L"), by calling together all persons then present in the gym whilst he disciplined L for apparently passing a remark that the claimant was "stupid". In addition, the mother of another young gymnast, ("S2") had confirmed to Ms Fisher that S2 had been given conditioning exercises by the claimant in order to discipline S2 and the mother complained that S2 had come home crying from Twisters every night on account of S2's treatment by the claimant. Further, there was a complaint made by Ms Doherty that the claimant had had a further unauthorised absence from Twisters when Ms Fisher was abroad on vacation on 6 November 2006. Indeed, additionally to the foregoing, there later also appears to have been a further incident reported to Ms Fisher that the claimant had an unauthorised absence from Twisters on or about 21 November 2006.

(k) In view of all of the foregoing, by letter dated 22 November 2006 Ms Fisher wrote to the claimant setting out various allegations and stating that she intended to carry out a full investigation. The claimant was suspended at that time on full pay. A disciplinary investigatory meeting was fixed for 24 November 2006 at Twisters. The claimant was advised of his entitlement to be accompanied. The offences alleged were set out in brief detail in writing. A further letter, also dated 22 November 2006 and sent to the claimant, required the claimant to attend a disciplinary hearing to be held on 29 November 2006 at Twisters. Allegations were set out therein in writing and the claimant was again advised of his entitlement to be accompanied to the hearing. Copies of witness statements were enclosed with that letter. Some of these statements had not by that stage been signed by the parties making these. These witness statements purported to support the various allegations that were made against the claimant. However, these statements were signed by the time the disciplinary hearing took place.

(l) On 29 November 2006 the disciplinary hearing took place. The claimant was unaccompanied. The various allegations were put by Ms Fisher to the claimant. The claimant submitted a written defence to the allegations by means of a document dated 20 November 2006 and signed by him. In the course of the hearing Ms Fisher read the written defence and she also heard what the claimant had to say regarding the allegations. On conclusion of the hearing Ms Fisher did not immediately determine the matter. She spent some time considering the issues and the evidence and possible sanctions. Having done so, Ms Fisher reached the conclusion that the claimant was guilty of gross misconduct warranting dismissal. By letter of 1 December 2006 Ms Fisher wrote to the claimant confirming the outcome of the disciplinary hearing. The letter confirmed that the gross misconduct on the part of the claimant was, firstly, customer abuse by raising his voice and giving conditioning exercises to discipline a child and engaging in conduct which had the effect of embarrassing and demoralising gymnasts and, secondly, leaving work unofficially on three occasions. The claimant was advised that he was being dismissed without notice and notice pay. He was informed of his entitlement to appeal the decision.

(m) By letter dated 4 December 2006 the claimant wrote to Ms Fisher confirming that he wished to appeal the dismissal. The appeal hearing was held on 8 December 2006 and it was indicated by letter of 5 December sent by Ms Fisher to the claimant that she would be conducting the appeal hearing. The claimant was advised of his entitlement to be accompanied. At the claimant's request the appeal hearing was then re-scheduled for 11 December 2006 in order that the claimant might be accompanied by a trade union official.

(n) The appeal hearing took place on 11 December 2006 with the claimant being accompanied by a Mr McDaid as his representative. The arguments on the claimant's behalf against the dismissal were noted by Ms Fisher. She concluded the appeal by upholding the original dismissal. That outcome was confirmed to the claimant by means of a rather detailed letter sent by Ms Fisher to the claimant and dated 16 December 2006. Ms Fisher confirmed her view to be that the decision to dismiss was a reasonable and proportionate response.

(o) In regard to what happened after the dismissal, the tribunal heard some evidence from the claimant regarding his unemployed status or possible employment and loss alleged. However, on account of the decision made by the tribunal the tribunal need not comment further on that, and the tribunal did not need to determine any further facts for the purposes of reaching its decision in this case.

THE APPLICABLE LAW

5. In respect of the applicable law, the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal. The specified reasons set out in Article 130 include conduct. Article 130(4) of the 1996 Order provides that where the employer has shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason) the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.
6. In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439 which includes the following:-

(i) An industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal fair.

(ii) In many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another.

(iii) The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.

THE TRIBUNAL'S DECISION

7. As mentioned, it is for the employer to satisfy the tribunal as to the reason for dismissal and that it is a potentially fair reason. Conduct on an employee's part is one such reason. Firstly, there has possibly emerged in this case a suggestion that the true reason for the dismissal (or part of that reason) was on account of the ongoing contractual dispute between the claimant and Ms Fisher concerning the accommodation costs issue and some other matters of grievance on the claimant's part. Put simply, the tribunal does not accept the suggestion that these issues played any significant part at all in the reason for dismissal. The dismissal was conduct related and that was the reason for the dismissal.
8. Ms Fisher on behalf of the respondent purported to dismiss the claimant on grounds of gross misconduct. That gross misconduct alleged stemmed from two matters. Firstly, there was the issue of the claimant's alleged leaving the work premises on a number of occasions without authorisation when it had earlier been made clear to him that he was not permitted to do so, and the reasons for that. Ms Fisher made it clear to the tribunal that on that particular issue alone she would have dismissed the claimant as she took a very serious view of the matter. Ms Fisher's contention before the tribunal was that any possible earlier misunderstanding on the claimant's part had been fully dispelled, initially by means of her speaking with the claimant about this issue and later (just before she was due to go on vacation) by her providing to all staff members, including the claimant, a document which amongst other matters had the purpose and affect of making it clear that on no occasion was the claimant permitted to leave the work premises during working hours without express authorisation.
9. Set against this, the tribunal has considered the claimant's contention that he had misunderstood the situation, notwithstanding what the respondent had stated, and that he had believed that he was entitled to leave the premises during his break time.
10. The tribunal has heard that the reason for Ms Fisher taking such a serious view of this issue related to child protection and to insurance issues. That was confirmed indeed very clearly and emphatically in Ms Fisher's testimony to the tribunal.
11. Looking at the established facts, the tribunal is entirely satisfied that the claimant was made fully aware that he was not permitted to leave the work premises during working hours without express permission. Despite having been informed of that, the claimant nonetheless disregarded that clear instruction on a number of occasions. He must, in doing so have been fully aware that his employer, Ms Fisher, would take a serious view of the matter but was evidently prepared for whatever reason to take a chance in that regard.
12. The other, and significant, disciplinary allegation made against the claimant was in respect of what Ms Fisher has termed "customer abuse". The tribunal has no doubt that Ms Fisher went to some pains to investigate the various specific allegations in regard to that issue which had been made against the claimant. She took witness statements from a number of persons and she sought an explanation also from the claimant. Procedurally, Ms Fisher endeavoured to conduct a proper investigation within the limits of the resources available to her as proprietor of a small organisation (in that regard see generally Harvey on Industrial Relations and Employment Law Div. D [1482] and following). She provided the evidence gathered in respect of the disciplinary conduct allegations in the form of the witness statements to the claimant prior to the commencement of the disciplinary hearing.
13. In regard to the specific allegations of customer abuse, shortly before her departure on vacation at the end of October 2006, Ms Fisher had provided written guidelines to all staff. These guidelines were inspected by the tribunal and included the following extract:-

"Coaches are not permitted, ever, to raise their voice, or give conditioning to discipline a child. These are forms of child abuse and are considered serious offences. …. Coaches should also endeavour to be constructive and encouraging when teaching and correcting. Always say something positive before something negative to avoid embarrassing or demoralizing gymnasts".

At the conclusion of the disciplinary hearing, having assessed all the evidence and information, Ms Fisher was of the view that there had been a serious departure from the foregoing guidelines. Ms Fisher was concerned not just for the welfare of the individual children but also, quite clearly from her evidence, about the potential effect on her business. One child indeed had left Twisters on account of this matter and did not return for some considerable time. On account of this Ms Fisher took the view that these offences were proven against the claimant. She further concluded that the matter was sufficiently serious to warrant dismissal. She did not jump to a hasty conclusion; she did address her mind to other outcomes than the dismissal of the claimant. However, taking everything into account, Ms Fisher felt that dismissal was warranted under these circumstances.

14. An appeal against Ms Fisher's decision to dismiss was afforded to the claimant. In view of the rather small size of the respondent organisation and of the fact that there was no one in charge of the organisation save for Ms Fisher, Ms Fisher took the decision to chair the appeal hearing herself. The tribunal notes that, although that course is not generally to be preferred, it sometimes is the only course which an employer in a very small organisation can take in order properly to afford an appeal to a disciplined or dismissed employee (in that regard see Tiptools v Curtis [1973] IRLR 276). That was the course which Ms Fisher took in this instance. At the appeal the claimant had every opportunity to have his case put again to Ms Fisher, this time by a representative, Mr McDaid. In the letter sent by her to the claimant consequent upon the appeal hearing Ms Fisher did set out clearly and in some detail the basis upon which she had decided to uphold the original decision to dismiss. That is indicative of the fact that she had devoted some time to considering the detail of the issues and of the arguments upon appeal.
15. Regarding the procedure employed by Ms Fisher for the conduct of the disciplinary investigation, the disciplinary hearing, and the appeal hearing, the tribunal concludes that there was nothing so unfair or so improper connected to the procedure that the tribunal could reach a determination that the claimant was unfairly dismissed on that account. The allegations were properly investigated, the case against him was put fairly and properly to the claimant, and he was afforded a fair and a reasonable opportunity to state his case. The only issue emerging therefore for the tribunal to consider is whether or not the ultimate sanction of dismissal, given the proven facts as far as Ms Fisher was concerned, fell within the band of reasonable responses of a reasonable employer.
16. As is clearly the position under the law (and as is mentioned above), it is not for the tribunal to substitute its own decision for that of the employer nor to decide whether it (the tribunal) would or would not have dismissed under these circumstances. The tribunal's task is to perform what is sometimes the rather difficult job of assessing whether or not the dismissal fell within the band of reasonable responses of a reasonable employer. In doing so, the tribunal has taken everything into consideration.
17. The tribunal has borne in mind, most particularly, the nature of the business in which Ms Fisher was engaged. That was an enterprise providing gymnastic facilities for young and potentially vulnerable children. That fact lifted the case into an arena where the decision of the employer in this case to dismiss under these particular circumstances might well be seen as entirely reasonable, whereas in contrast such a decision to dismiss under perhaps superficially comparable circumstances, but in a rather different commercial organisation, might not be so.
18. Looking at everything in the round, the tribunal's determination is that Ms Fisher's decision to dismiss the claimant, in view of the information and evidence which was then at her disposal, fell within the band of reasonable responses of a reasonable employer. Likewise, the decision on the part of Ms Fisher to uphold the dismissal decision on appeal did not bring the dismissal outside the band of reasonable responses of a reasonable employer. Further, there was nothing procedurally unfair about the process which would have rendered an otherwise fair decision to dismiss unfair procedurally. Thus the tribunal's conclusion is that the respondent did not unfairly dismiss the claimant.
19. Accordingly, the claimant's complaint of unfair dismissal is not upheld by the tribunal and the complaint is dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 8 and 17 August 2007, Londonderry.

Date decision recorded in register and issued to parties: