Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/1670_05.html
Cite as: [2007] NIIT 1670_5, [2007] NIIT 1670_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1670/05

CLAIMANT: Chris Weir

RESPONDENT: Royal Mail Group PLC

DECISION

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

Constitution of Tribunal:

Chairman: Ms F Oliver

Panel Members: Dr J Young

Mrs A Ley

Appearances:

The claimant was represented by Mr. Aidan Sands, Barrister-at-Law, instructed by Messrs J G O'Hare & Co, Solicitors.

The respondent was represented by Mr. David Dunlop, Barrister-at-Law, instructed by Messrs Napier & Sons, Solicitors.

1. Sources of Evidence

The tribunal heard evidence on behalf of the respondent, from Mr Rory Culbert, the Assistant Delivery Office Manager for North Belfast and the claimant's line manager, from Mr John Thompson, the Delivery Office Manager for North Belfast and Dismissal Manager for the claimant and from Mr Adrian Buckley, the Regional Services Manager for Scotland & Northern Ireland and the Appeals Manager for the claimant. The tribunal heard evidence on behalf of the claimant form the claimant himself and from Mr Steven Carrabine, the Communication Workers Union representative. The tribunal was provided with two bundles of documents.

The tribunal had the benefit of written submissions from both representatives.

2. The Claim and the Defence

The claimant claimed that he had been unfairly dismissed. The respondent claimed that the claimant had been fairly dismissed for misconduct, after a proper investigation, disciplinary hearing and appeal hearing carried out in accordance with the respondent's own disciplinary procedure.

3. The Issue

The issue to be determined by the tribunal is whether the claimant was unfairly dismissed by the respondent.

In essence, both parties accepted that the claimant had failed to deliver mail on a particular day. The issue for the tribunal was whether the respondent had reasonable grounds to believe that this constituted wilful delay as opposed to inexcusable delay and if it had such grounds, did the respondent act fairly in treating the claimant's misconduct as a sufficient reason for dismissing him.

4. Analysis of the evidence

The evidence given by the respondent's witnesses was consistent and the tribunal was particularly impressed by the evidence of Mr Buckley who gave his evidence in a clear, consistent and forthright manner.

The evidence given by the claimant was not consistent. His evidence lacked clarity and he was evasive. In particular the tribunal noted that the claimant's version of events changed throughout the duration of his claim. The evidence he gave to the tribunal was different from the statement in his claim form to the tribunal and he was unable to offer any reasonable explanation for this. His evidence during the course of the tribunal also shifted in emphasis.

The evidence given by Mr Carrabine in relation to the treatment of other employees by the respondent was so nebulous as to be worthless.

5. Findings of Fact

Background

The respondent is responsible for the delivery of mail across the U.K. It has a statutory duty to provide a universal mail service. It views the integrity of mail as of paramount importance. The act of preventing or impeding the delivery of mail is a criminal offence and failure to deliver mail is regarded as a very serious matter by the respondent. On commencement of employment, the claimant was provided with a letter emphasising the importance of ensuring mail is delivered promptly and safely.

There is an agreed Conduct Code drawn up between the respondent and the Communications Workers Union. Paragraph 17 deals with safeguarding customers' mail. It is worth reciting it in total as it is central to the issue to be determined.

Unexcused delay to mail

The responsibility for safeguarding the mail and giving it prompt and accurate treatment is one of the most important duties of all employees. Various actions can cause mail to be delayed, e.g. carelessness, negligence, breach or disregard of a rule or guideline. Such instances are to be distinguished from wilful delay although they may also be treated as misconduct, and in more serious instances could also result in dismissal.

Furthermore, Royal Mail does recognise that genuine mistakes and misunderstandings do occur and it is not the intention of the Business that such cases should be dealt with under the Conduct Code beyond counselling for the isolated instance. The key is that employees should do their job to the best of their ability and, if in doubt, ask for their manager's advice and guidance.

Wilful Delay

Wilful delay of mail is classed as gross misconduct, which if proven could lead to dismissal. The test to determine whether actions may be considered as wilful delay is as follows:

Deliberate action taken by an employee that causes mail to be delayed is called wilful delay. Where proven, such breaches of conduct can lead to dismissal, even for a first offence; indeed Wilful Delay is a criminal offence and can result in prosecution.

Paragraph 13 categorises Wilful Delay of Mail as gross misconduct which could warrant dismissal without notice. The claimant was dismissed for wilful delay of mail.

The following findings of fact were not disputed:-

(a) The claimant was employed by the respondent as a part time delivery postman from 18 November 2002 until his dismissal on 10 September 2005.

(b) On Saturday 21 May 2005, the claimant was assigned to walk no. 1347 which entailed delivering the post on the walk.

(c) Normally a postman will sort his post into letters, “flats” or large envelopes and packets and he will then proceed to deliver these items on his walk. The packets for the claimant's walk, no. 1347 were left by a van driver on the bay beside the claimant's i.e. no. 1346.

(d) The claimant failed to deliver the packets for walk no. 1347 leaving them behind on Bay 1346 when he left to deliver the post.

(e) On Saturday 21 May 2005, the claimant's line manager, Mr Culbert returned to the delivery room after all the postmen had left the building and found the undelivered packets for 1347 sitting on bay 1346.

(f) On Monday 23 May 2005 Mr Culbert discussed the position with the claimant and then proceeded to arrange a fact finding interview.

(g) The fact finding interview took place on 9 June 2005.

(h) The claimant was charged with intentional delay of mail and a conduct interview took place on 1 August 2005.

(i) Following this interview, the claimant was dismissed with notice for wiful delay of post, the dismissal taking effect from 10 September 2005. The parties accepted that intentional delay of mail and wilful delay of mail were one and the same thing and no issue was taken in respect of the different terminology.

(j) The claimant appealed and his appeal was heard by the Appeals Manager, Mr Buckley on 21 September 2005.

(k) The decision to dismiss was upheld by Mr Buckley.

The tribunal makes the following findings of fact from the evidence.

In his evidence to the tribunal, the claimant accepted that he knew the packets for his walk had been left by the driver on bay 1346 but in his claim form, he stated that he told the driver to go ahead and drop the packets on the bay beside his “not realising these were my packets.” The tribunal finds that the claimant knew the packets on bay 1346 were for his walk and that he failed to deliver them. We find that the statement on the claim form was a deliberate attempt to mislead the tribunal.

A dispute arose during the course of the evidence as to the exact make up of the frame on Saturday 21 May 2005 and whether or not it had been extended by the addition of “wings”. Regardless of whether the frame had been extended, the tribunal finds that the packets were clearly visible to the claimant during the course of preparing the mail for delivery.

The claimant had to walk past the packets on his way out to deliver the post and in view of the clear frame policy the packets were clearly visible to the claimant as he left the room.

In view of the claimant's changing evidence and the inconsistency of his evidence to the tribunal we did not find him to be a reliable witness. We did not find his explanation to the tribunal that he simply forgot the packets to be credible.

Mr Buckley gave clear and convincing evidence that in the vast majority of cases where an employee is guilty of wilful delay, he will be dismissed and we accept this as a finding of fact.

6. The Law

Article 126 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to be unfairly dismissed.

In determining whether a dismissal is fair or unfair it is for the respondent to show that the reason for the dismissal is a reason falling within Art 130 (2) of the Order which includes a reason relating to the conduct of the employee.

In a case where the employer shows that the employee's conduct was the reason for the dismissal, the determination of the question as to whether the dismissal was fair or unfair depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably in treating the reason as a sufficient one for dismissing the employee and the question is to be determined in accordance with the equity and substantial merits of the case (Art 130 (4) of the Order)

In its consideration of those issues, the tribunal makes particular reference to the case of British Home Stores -v- Birchell (1978) IRLR 379, which states:-

“In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair the …. Tribunal has to decide 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. This involves three elements. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and that the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation as was reasonable in all the circumstances of the case”.

7. Application of the Law and Findings of fact to the Issues

It is common case that the claimant was dismissed for a potentially fair reason i.e. conduct.

In considering whether the employer acted reasonably in treating the misconduct as sufficient reason for dismissing the claimant, the tribunal considered the test in Burchell and came to the following conclusions:-

(1) The respondent clearly believed as indicated by the evidence of both Mr Thompson and Mr Buckley that the claimant had been guilty of wilful delay.

(2) The respondent had in his mind reasonable grounds upon which to sustain that belief. The tribunal was particularly impressed by the evidence of Mr Buckley in this regard. He gave clear reasons for coming to the decision that this was a case of wilful delay. He gave the following reasons in evidence and by letter dated 4 November 2006 to the claimant following the Appeal hearing:-

(a) The claimant was an experienced postman who knew the procedures. He had previously been counselled regarding the importance of delivering mail.

(b) The claimant was fully aware that the packets on the adjoining bay were part of his delivery.

(d) The packets were substantial in number and size.(20 in number).

(e) The claimant had to walk past these packets on the way out.

(f) It was unusual for there to be no packets in this delivery.

Weighing up the evidence and the comments of the claimant at the appeal hearing, the respondent formed the reasonable view that the claimant made a deliberate decision to leave the post and not deliver it on the day in question.

(3) The respondent had carried out a thorough investigation and this was accepted by the claimant in the written submissions.

The tribunal therefore finds that the respondent had reasonable grounds for believing that the claimant was guilty of wilful delay.

This falls within the definition of gross misconduct in the Code of Conduct. The tribunal finds that the respondent had properly found the claimant guilty of gross misconduct and had done so after an open and thorough investigative and disciplinary process.

The tribunal then considered whether the respondent had acted reasonably or unreasonably in treating the conduct as sufficient reason for dismissing the claimant, and unanimously concludes that it had acted reasonably in doing so. The test is not what the tribunal would have done, but whether the decision to dismiss was within the band of reasonable responses of a reasonable employer. The tribunal concluded that the claimant had not provided any reliable evidence that he had been treated any more harshly than other employees. We preferred the evidence of Mr Buckley that in the vast majority of cases of wilful delay, the sanction imposed was dismissal. Bearing in mind the importance attached by the respondent to the prompt and safe delivery of mail, the decision to dismiss was within the band of reasonable responses of a reasonable employer. The dismissal was therefore fair and the claim must fail.

Chairman:

Date and place of hearing: 16 October 2006 and 19 November 2006, Belfast

Date decision recorded in register and issued to parties: