Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 959/05

CLAIMANT: Eoin Rua Davey

RESPONDENT: Royal Mail Group PLC

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and the claim must fail.

Constitution of Tribunal:

Chairman: Mr T Browne

Members: Mr O Fields

Ms M Mulligan

Appearances:

The claimant was represented by Mr A Sands, Barrister-at-Law, instructed by Simpson Millar LLP.

The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

ISSUE

1. The tribunal had to determine whether the claimant had been unfairly dismissed by his employer, the respondent. It was common case that he had been dismissed, but the respondent asserted from the outset that his dismissal arose from harassment of a fellow employee, and not, as the claimant believed, because of his union activities.

FINDINGS OF FACT

2. The claimant started working for the respondent in May 1987. He worked in postal deliveries, without any serious breaches of the respondent's disciplinary code. In 2001, the claimant was elected as local representative within his union, the Communication Workers' Union (CWU).
3. Since 2001, however, the claimant's conduct led him to receive a number of warnings about his conduct. At the time of the conduct as a result of which the respondent dismissed the claimant, he was the subject of a two-year serious warning and disciplinary transfer. Part of the reason for that earlier serious warning and disciplinary transfer arose from the refusal of the claimant to attend counselling arising from a complaint upheld against him of harassment of a fellow employee.
4. The claimant was dismissed in the present case after a disciplinary process which commenced with a report from an independent investigator, Mrs Lesley Beverley. Her services were retained on 14 June 2004 by the respondent under its Bullying and Harassment procedure as a result of a complaint by Mr Liam Morrison, a fellow employee, arising from two main incidents. Mrs Beverley concluded that the events and conduct complained of by Mr Morrison had taken place, which led to a disciplinary hearing by Mr Gerry McAuley, a senior manager from Scotland, who upheld the charges and decided that dismissal was the appropriate penalty. The claimant appealed this decision as to conviction and penalty to the National Appeals Panel, which is a body set up to deal with cases involving union officials. Its existence and constitution were agreed between the respondent and union some years ago, and in each case it so far has heard, it has been chaired by Professor Roy Lewis, QC.
5. The panel includes two other members, one of whom is a CWU representative at national level; the other is a representative of the respondent. Each member has a vote, and it is worthy of note that in this case the panel unanimously upheld the findings of guilt against the claimant. The penalty of dismissal was upheld by a majority; the CWU representative dissented.
6. It was also the case that from 2001 the claimant raised a number of grievances against members of management arising from their treatment of him and other employees, a number of which were upheld. The claimant also brought a number of Industrial Tribunal claims against the respondent, which he withdrew after successful conciliation.
7. In addition to these difficulties between the claimant and members of the respondent's management, it was common case that there was ongoing deep factionalism within the CWU, and indeed between different unions within the Royal Mail in Belfast.
8. The tribunal found in that regard that the claimant actively involved himself in protecting and promoting the interests of the CWU. He was fully entitled to do so, but his methods and attitude in doing so, especially with regard to the effects upon Mr Liam Morrison, a fellow employee, lie at the heart of this case.
9. The two came into conflict with each other at the end of May 2004, only two weeks after the serious warning had been imposed upon the claimant for harassment referred to in paragraph 3 above.
10. Four incidents occurred between the two men, the contents of which were the subject of almost total disagreement between the two men although the claimant accepted that each incident had occurred. On no occasion was physical violence used or threatened by the claimant (or anyone on his behalf) against Mr Morrison, but verbal harassment comes within the scope of the respondent's Bullying and Harassment policy.
11. Mr Morrison did not give evidence to the tribunal, but he took part in the investigation conducted by Mrs Beverley; he was interviewed by Mr Gerry McAuley in the course of his disciplinary hearing investigation; and he gave evidence to the NAP.
12. The first incident took place on Saturday 29 May 2004. Whilst originally on good terms, relations between the claimant and Liam Morrison soured during a conversation they had at a chance meeting at a pizza restaurant on the evening of Saturday 29 May 2004. The conversation centred upon the news imparted to the claimant by Liam Morrison that he had been told after various enquiries to managers that his previously temporary job with the respondent was to be made permanent. Credit for this had in effect been taken by Mr Bobby Weatherall, Branch Secretary of Belfast CWU in Royal Mail, in a circular put out by him on Friday 28 May, and brought to the attention of the claimant on Saturday 29 May. That circular, penned by Mr Weatherall, sought to credit his negotiations with securing the permanent contracts for all workers in the same position as Mr Morrison. The circular further stated that this had been assisted by 'the temp on Level 7', a reference to Mr Morrison.
13. It was common case that the decision to make the temporary contracts permanent was entirely outside the scope of any union input because it was a resource issue. It therefore was not open to negotiation, and the decision had been taken by the respondent at national level. It was clear to the tribunal therefore that this misrepresentation by Mr Weatherall was more to do with self-promotion than with accuracy.
14. The claimant took exception to the claim by Mr Weatherall that he had helped to secure this deal over contracts. The claimant's stated reaction was that of concern because negotiation by individuals with management is in contravention of Rule 16 of the Branch Model Rules. The tribunal found that the claimant's actions also included a high degree of hostility to Mr Weatherall personally, since he and the claimant were in different and opposing factions within their CWU branch. The tribunal also formed the view from the evidence that the claimant's accusation to Mr Morrison that he had breached the union rules in negotiating this issue rendered him in the view of the claimant as increasingly in the faction occupied and dominated by Mr Weatherall. This was substantially confirmed by the dismissive attitude of the claimant in evidence as to Mr Morrison's appointment as chairman of the union's local Youth Advisory Committee, which he put down to arising from Mr Morrison's friendship with Mr Weatherall. The tribunal concluded that from an early stage in the escalating conflict between the claimant and Mr Morrison, the claimant was tarring Mr Morrison with the same brush as he applied to Mr Weatherall.
15. It was common case that the claimant brought not only the breach of the rules but the existence of a national decision by the respondent as to the contracts to the attention of Mr Morrison during their discussion at the pizza restaurant. Mr Morrison later complained that he had felt intimidated by the claimant's manner, whereas the claimant made the case throughout that he was not aggressive at this incident. The tribunal noted the fact that these matters had been reported to the claimant earlier in the day by Mr Stephen Carabine, so he had advance knowledge of them before bumping into Mr Morrison.
16. The second incident occurred on 3 June 2004, when Mr Morrison went to speak to the claimant in the union room in the respondent's premises at Donegall Quay. The circumstances of that meeting again were the subject of dispute by the two men, Mr Morrison on the one hand claiming that he had been told by Mr Carabine that the claimant wished to see him. On the other hand, the claimant's case was that Mr Morrison had been directed to the union room by Mr Carabine following an enquiry from Mr Morrison as to his whereabouts. The versions of events as to what occurred also diverged significantly, with Mr Morrison claiming that the claimant had been aggressive and intimidating in his manner and tone, threatening to expose Mr Morrison's behaviour to the union members and aggressively refusing Mr Morrison's plea to use his mobile telephone to confirm his version with Mr Weatherall. The claimant on the other hand stated that Mr Morrison had sought to change his story from the pizza restaurant version as to which managers he had spoken to. He denied the allegation that he had been aggressive or verbally abusive.
17. The third incident involving the claimant and Mr Morrison took place on 10 June 2004, and in Mr Morrison's opinion was the realisation of the claimant's threat to expose him to the union membership. He alleged that at a meeting of 3 June the union membership outside the respondent's headquarters building, the claimant had referred to him disparagingly (and specifically as the chairman of the Youth Advisory Committee), due to his alleged complicity in assisting Bobby Weatherall in negotiating with management in connection with the temporary contracts. The core purpose of that meeting was to call for a ballot as to the confidence of the membership in Mr Weatherall.
18. Yet again, there was very little common ground between the two as to what exactly had been said. The claimant conceded that he had referred to 'the temp on level 7' during his speech, the contents of which the tribunal found to be aimed primarily at Bobby Weatherall, who had deliberately not been informed that the meeting was taking place and did not attend. The tribunal concurs with the finding of the NAP in this episode, namely that it was relatively immaterial as to by what title the claimant referred to Mr Morrison. The central issue was whether or not the claimant by his actions in alluding to his identity in a derogatory fashion that day had treated Mr Morrison in a manner which contravened the respondent's Bullying and Harassment procedure.
19. On 11 June 2004, Mr Morrison reported the three incidents to Mr Eamar O'Hagan, Delivery Office Manager in Belfast, but made it clear that he did not at that time wish to make a formal complaint. He was advised by Mr O'Hagan that despite Mr Morrison's wish in that regard, the respondent had a duty to investigate his complaints. In furtherance of that duty, Mr O'Hagan brought the three incidents to the attention of the Regional Case Manager, although the focus was mainly on the incidents of 29 May and 3 June.
20. On 14 June 2004, Mrs Beverley was duly appointed; she travelled from England to commence her investigation, with no prior knowledge of any of the parties or the internal union feuding. On the same day, the claimant was informed of the complaint, without the detail, and was instructed that he was to have no contact, direct or indirect, with Mr Morrison.
21. At her initial interview with Mr Morrison on 29 June 2004, he told Mrs Beverley that he saw the incidents of 29 May and 3 June as the primary matters of concern to him, and stated that he preferred an informal resolution.
22. Such a resolution would not require the claimant to make an admission of guilt, but to acknowledge that his conduct could reasonably have been perceived by Mr Morrison to have been harassment. It was explained to the claimant that such a resolution would involve the two sitting down with a third party in an attempt to understand the impact his actions might have had on Mr Morrison and agreeing a way forward. It is a feature of this case that the claimant declined on several occasions throughout this process to countenance any such resolution. His attitude was that he had not behaved in the manner alleged by Mr Morrison, and also expressed the view that Mr Morrison was not interested in informal resolution. The result however was that throughout this process, the claimant set his face against personal input from him into informal resolution with Mr Morrison.
23. Just after his interview with Mrs Beverley on 29 June, Mr Morrison was walking home, not in uniform, when a car, driven by the claimant, pulled up alongside him. The claimant's wife, in the passenger seat, asked Mr Morrison if he wanted a lift. The claimant did not speak, and when Mr Morrison declined the offer, the claimant drove off. When later asked about this incident, the claimant gave two different accounts. The first was that he stopped when he saw a postman in uniform, as was his custom. This was clearly unsustainable as Mr Morrison was not wearing his uniform. The claimant then told the NAP that he had stopped the car at his wife's behest, as she wanted to get the matter resolved. It is of note in this regard that no such desire was communicated by her to Mr Morrison.
24. The claimant told the NAP that he had invented the first story as he was afraid that he would face further disciplinary action because of his breach of 14 June instruction not to contact Mr Morrison.
25. Encouraged by the line manager to whom he reported this incident, Mr Morrison contacted Mrs Beverly on 5 July and told her that he now wished to make a formal complaint, but retained the hope that the matter could be resolved informally. Mr Morrison maintained that stance until late in the disciplinary process, by which time in the view of the tribunal there was ample evidence that he was completely disillusioned by the treatment of him as a pawn by both the claimant and Mr Weatherall. Mr Morrison was of the opinion that a proposed resolution brokered by the CWU was designed to protect the warring factions, with little or no regard to his welfare.
26. Mrs Beverley consulted widely and presented her findings in late November 2004. Subject to some procedural criticisms, identified and addressed by the NAP before reaching its conclusions, and accepted by her at the tribunal hearing, the tribunal viewed Mrs Beverley's report as open-minded, thorough and fair. An example of her fairness was her encouragement to Mr Morrison to do what he wanted, rather than be pressurised by management, who clearly wanted a formal investigation.
27. The tribunal also accepts Mrs Beverley's evidence, supported by her case diary, that the claimant was obstructive in his approach throughout her investigation. She recorded in her case diary during one telephone call that she felt the claimant's tone was harsh and threatening. It also was clear to the tribunal that the persons assisting Mr Davey were just as obstructive as he. In one incident during a telephone call with a person nominated by the claimant, it became apparent to Mrs Beverley that the person she was speaking to clearly was playing to a gallery of others in the background. Whilst there is no evidence that the claimant was present, the tribunal accepts Mrs Beverley's assessment that those involved were treating the whole investigation as a game.
28. Having given full consideration to all her investigations and observations, Mrs Beverley concluded that the matters complained of by Mr Morrison had in fact taken place in the manner alleged, and that a disciplinary hearing should take place. The tribunal accepts Mrs Beverley's case notes as an authentic record of her professional assessment of the claimant's attitude to her investigation. Whilst not proof of itself as to the veracity of the complaints being made against him, the tribunal concluded that the claimant by behaving in this way revealed himself to be capable of being an arrogant bully to those whom he perceived to be in his way, which on this evidence included Mrs Beverley.
29. Before Mrs Beverley made her recommendations, a procedural defect was addressed in that the claimant was belatedly interviewed by Mr Adrian Buckley. At that remedial meeting, the claimant was officially afforded the opportunity to avail of an informal resolution. He declined, on the basis that he had done nothing wrong. The tribunal accepts Mrs Beverley's evidence that, had the claimant accepted such a course, then her report would have been redundant and nothing further would have happened beyond the informal resolution process. The tribunal has concluded that, whilst the oversight by Mr Buckley was unimpressive, he readily acknowledged his neglect to attend to it. The tribunal concludes that, whilst its omission would have caused a major procedural disadvantage to the claimant by depriving him of an opportunity to avoid probable disciplinary proceedings, whilst late, its rectification adequately prevented this.
30. The tribunal found it significant that in January 2005, the claimant, despite the additional time within which to reflect upon the events of June and July 2004, still maintained the stance that nothing about his conduct was in any way untoward. The tribunal found it significant that at the time of the conduct hearing interview with Mr McAuley in January 2005, the claimant was prepared to tell him a self-serving lie about making an innocent mistake in stopping his car alongside Mr Morrison some seven months previously.
31. The tribunal found Mr McAuley's report to be thorough and fair-minded. He has been conducting conduct hearings since 1990, and, in common with Mrs Beverley, he had no prior knowledge of the parties or the internal disputes in CWU in Northern Ireland. The tribunal formed the view from the actions of Mr McAuley in his approach to this conduct case that he acted in a professional and impartial manner.
32. He clearly took a robust view of what his enquiries revealed, and was criticised by the NAP for exceeding his brief in perhaps influencing Mr Morrison as to a possible resolution being brokered by the CWU. Despite that criticism however, and in the context of the views of the tribunal in paragraph 25 above, the tribunal regarded it as significant that the NAP unanimously formed the view that Mr McAuley's conclusions as to the claimant's guilt were correct and that the NAP by a majority found that his decision to dismiss was also correct.
33. The tribunal concluded that Mr McAuley's strong views of the conduct of the claimant were rooted in his adherence to the policy of the respondent in opposing all forms of bullying. The tribunal found that he took a realistic view of the potentially vigorous nature of people's disagreements, but was clear in insisting that everyone, regardless of their position, had rights and responsibilities in how they expressed their views in the workplace. The tribunal found that in doing so, he was clearly in tune with the tenor and purpose of the respondent's policy.
34. It is of note in this regard that both Mrs Beverley and Mr McAuley gave evidence to the NAP, thereby enabling the NAP to form their own assessment of them and their work through the Panel's own questioning and that on behalf of the claimant.
35. Whilst there were procedural defects in the conduct hearing, the NAP identified and addressed these, and still felt able to return the unanimous guilty verdicts. One of these related to the lack of particularisation as to what precisely were the allegations the claimant had to address. The NAP was satisfied that these defects had been overcome.
36. The tribunal found from the evidence that it was likely in any event that the claimant was very well aware of the subject matter of Mr Morrison's complaints before Mrs Beverley's investigation and the conduct hearing. That view received significant support from the fact that despite previously good relations between the two, there had recently been at least two incidents, namely at the pizza restaurant and in the union room, where, even if conducted in the measured and civilised manner alleged by the claimant, he could not have failed to be aware that relations between the two had suddenly and dramatically deteriorated.
37. Of particular note is the incident on 29 June. The reason the claimant eventually gave to the NAP for stopping on the road, whether true or not, was that his wife wanted to put an end to the bad feeling between them. On this version, it is clear that even at that earliest stage, even his wife was aware of not only the fact but the degree of tension between the two, to the point where she, on the claimant's revised version of the incident, wanted to put an end to it. It therefore seems at least likely that the claimant had been able to tell her the relevant details.
38. The penalty imposed by Mr McMurray was the most severe open to any employer. Mr McAuley stated that he felt this was the appropriate decision because the claimant had been found guilty by him of serious charges. He included in his consideration the fact that the claimant had a recent, relevant record, including his refusal to attend counselling, as well as the points in the claimant's favour.
39. Similarly, in the NAP report, considerable deliberation went on as to the appropriate penalty as well as to guilt.

CONCLUSIONS

40. In order to assess the fairness of a dismissal, Article 130 (1) of the Employment Rights (Northern Ireland) Order 1996 requires that the employer must show:-

"(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held."

The respondent in this case cited the dismissal to be on the grounds of conduct, which is a potentially fair reason under Article 130 (2)(b).

41. The claimant submitted that there was a determination by management to get rid of him, based upon his trade union activities, which would not be a potentially fair reason. The tribunal is satisfied that this case had nothing to do with the claimant's union activities, other than the manner in which he conducted himself towards a fellow employee in exercise of his role as an official. There was in the view of the tribunal evidence that the claimant viewed this whole process as another forum in which to take on and defeat the faction dominated by Bobby Weatherall in his own bid for power within the union.
42. The tribunal is therefore satisfied that the employer has discharged the burden of showing the reason for dismissal, namely on grounds of conduct, and that such reason is a potentially fair reason for dismissal.
43. The tribunal then had to decide if the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee. That question must be determined in accordance with equity and the substantial merits of the case.
44. In accordance with the test in British Home Stores v Burchell [1978] IRLR 379, the tribunal had to determine whether the respondent had genuinely come to a reasonable conclusion as to the claimant's guilt, and that it had done so after a reasonable enquiry.
45. Whilst there were flaws in the investigation process, these were identified, addressed and discounted in the NAP report. The tribunal was satisfied as to the thoroughness and independence of the Beverley and McAuley enquiries, and the NAP hearing and report were found by the tribunal to be impressive in the care taken to assess and weigh all the evidence and arguments. It should also be borne in mind that there is no requirement for an investigation or disciplinary process of a quality to be expected in a criminal court.
46. It must be emphasised that it is not for the tribunal to substitute its own views for those of the respondent, either as to conviction or penalty. The task of the tribunal is to assess whether the respondent came to a reasonable conclusion of guilt after a reasonable enquiry, and in this case answers in the affirmative. In addition to the evidence of the claimant's conduct towards Mr Morrison, there was ample credible evidence as to the conduct of the claimant during the investigation which was highly supportive of the allegations by Mr Morrison. This included the fact of his flagrant breach of a clear instruction not to contact Mr Morrison; the lie that he told to Mr McAuley, and the manner in which he and his associates treated Mrs Beverley.
47. Similarly, when assessing the severity of the penalty imposed, it is not the function of the tribunal to substitute its own opinion but to determine whether that imposed was within the band of reasonable responses of a reasonable employer. The claimant produced a number of previous NAP decisions, again chaired by Professor Lewis, in an attempt to show that the NAP in those other cases has imposed lesser penalties than dismissal in circumstances where, for example, physical violence or extreme bullying were present. Whilst there were cases supportive of that view, the tribunal felt that the cases shown to it also demonstrated the great care taken by the NAP in reaching its decisions, and that, where appropriate, it is quite prepared to disagree with a decision to dismiss.
48. In any event, it was not contended by the claimant that the NAP does not have a power to confirm dismissal, nor that bullying and harassment can not constitute conduct which could properly render the culprit liable to dismissal. The claimant advanced the case that, even if his conduct was properly identified as bullying or harassment, it was towards the lower end and therefore dismissal was excessive.
49. The NAP and Mr McMurray were both of the opinion that the claimant would be unlikely to respond to anything short of dismissal. Their view was based upon the fact that, despite his recent, relevant conviction and continuing disciplinary warning, the claimant readily became involved in a repeated and escalating campaign against Bobby Weatherall, in the course of which he harassed Mr Morrison. The tribunal accepts that that, apart from the substance of the charges themselves, was a compelling and reasonable conclusion to draw. The respondent has a duty of care towards all of its employees, and the claimant had demonstrated an alarming lack of insight, not only as regards the effects, or even the potential effects upon Mr Morrison, but also as regards anyone else who in his view opposed him.
50. The tribunal therefore is satisfied that the findings of guilt were genuine and reasonably reached, and that the decision to dismiss was within the range of reasonable responses of a reasonable employer.
51. The claimant therefore has failed to establish that he was unfairly dismissed and his claim must fail.

Chairman:

Date and place of hearing: 30 October 2006 – 3 November 2006;

30 November 2006; and

19 January 2007, Belfast

Date decision recorded in register and issued to parties: