Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2008/1189_06IT.html
Cite as: [2008] NIIT 1189_6IT, [2008] NIIT 1189_06IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1189/06

CLAIMANT: David Ingram

RESPONDENT: Fairco McIlhagga Limited

DECISION

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

Constitution of Tribunal:

Chairman: Ms J Knight

Members: Mr I Lindsay

Ms M J McReynolds

Appearances:

The claimant was represented by Mr Gillam of Donnelly Kinder, Solicitors.

The respondent was represented by Mr Carroll of Engineering Employers' Federation.

1. Issue

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

2. Evidence

The tribunal heard the oral evidence of Mr Geoff McBride, Mr Raymond Nelson and Mr Gordon Bell for the respondent and the claimant, Mr David Ingram. The tribunal considered agreed documentation provided by the parties' representatives.

Where there was a conflict of evidence the tribunal preferred the evidence of the respondent's witnesses to that of the claimant. The tribunal considered that the claimant was not entirely truthful and the content of his evidence, both in examination in chief and cross examination was vague and contradictory. In short the tribunal did not find the claimant to be a credible witness.

3. Findings of Fact

After careful consideration of the evidence the tribunal found the following relevant facts to be proven on a balance of probabilities:

1) The respondent company manufactures supplies and fits UPVC windows and doors and conservatories and supplies and fits other UPVC products such as soffits, fascias and guttering. In January 2006 there was a reorganisation at management level and Mr Geoff McBride was promoted to the position of Managing Director from the post of Conservatory Manager which he held for the previous eight years. He took over the position from Mr Miscandlon who was moved to a position with the job title of Chairman of the company and continued in an active role until his retirement due to ill health around September 2006. However Mr Gordon Bell was the actual Chairman of the Board of Directors for the respondent company. The respondent employs approximately sixty persons. There were a number of redundancies in January 2006 due to a seasonal downturn in work, but the majority of the employees affected were subsequently re-employed by the respondent.

2) The respondent company does not try to compete with other companies in the same industry on price but relies on its reputation for producing a high quality product and retains control over the costings of the product. When a customer makes contact with the company, their details are recorded on the computer system and the lead is distributed to a sales representative, who will then visit the customer at their home with a view to selling the product. Only the eight sales representatives and the sales manager, Mr Johnny Green are authorised by the company to provide quotations to domestic customers for the supply and installation of the product. Once a price is agreed, the customer is required to pay a 20% deposit before any work will commence. Mr Andrew Hunter was responsible for quotations for commercial customers.

3) The respondent's disciplinary procedure provides that it is an offence of gross misconduct for an employee to undertake work in competition with the respondent. The Company Handbook states: "Any employee who undertakes any form of work whether paid or unpaid which may be considered to be in competition to the work undertaken by the company will have committed an offence of gross misconduct and will be dismissed."

4) The claimant, Mr Ingram was employed by the respondent Fairco McIlhagga Limited from 19 August 1986 and at the effective date of the termination of his employment on 30 June 2006 worked as an after service engineer. The claimant's line manager for approximately 15 years was Mr Raymond Nelson, the installations manager. The claimant received a verbal warning in December 2005 for a timekeeping offence. Apart from this he had a clear disciplinary record. The claimant was at the relevant time residing with his parents and he owned three houses, two of which were let out to tenants and one which he was renovating, in preparation for getting married.

5) The claimant did not dispute that he was not authorised to provide quotations for the supply of the respondent's products to domestic or commercial customers. His role as an after sales engineer was to go out to the customers' premises to carry out any remedial work required to products already installed at domestic properties. His job did not involve measuring for pricing or manufacturing sales, estimating, furnishing customers with prices or collecting deposits. The claimant was aware at the beginning of 2006 of the procedure put in place by the respondent for providing customers with quotations and that the respondent required a 20% deposit.

6) On 26 May 2006 the claimant was instructed to call at the home of Mr and Mrs Turner in Ballyclare to carry out remedial work to the back door which had been previously supplied and installed by the respondent. The engineer's remedial worksheet contained the customer's name and address and telephone number and the nature of the fault complained of. The claimant was at Mr Turner's premises for half an hour during which he carried out the remedial work and during which Mr Turner asked the claimant to provide him with a price for providing a door and soffits and guttering for his garage.

7) It is not disputed between the parties that the claimant did measure for a garage door and that he subsequently telephoned Mr Turner on 2 June 2006 and provided him with a quotation of £580 to supply and fit the door. A £100 deposit was agreed and the claimant told Mr Turner that he would call with him to collect the cheque.

8) Mr Turner made out a cheque for £100 to Fairco McIlhagga and dated 5 June 2006. On 15 June 2006 he telephoned the respondent to enquire whether they did not want his business as no one had been out to collect the deposit. Mr Green dealt with this call. When Mr Turner explained that the claimant had given him the price for the door which he had accepted, Mr Green became suspicious and decided to go out to see Mr Turner that day. Mr Turner confirmed to Mr Green during this meeting that he had requested a price for a single door from the company. Mr Turner also asked the claimant to get a price for fascia and soffits who, he said, replied, "we don't do that". The claimant told Mr Turner that he could get someone else down to give him a price for them. Mr Turner stated that the claimant had then measured the door and told him he would get back to him with a price within a few days and indeed had phoned him a few days later stating that the price of the door would be £580.00 including vat and fitting and that £100 deposit would be required. At all times Mr Turner confirmed he understood that the door was to be supplied and fitted by the respondent company and therefore accepted the price. The claimant told Mr Turner that he would call out to collect the deposit, but as time went by and Mr Turner heard nothing from him he thought that the respondent did not want to carry out the work and therefore he telephoned the office directly.

9) The claimant's version given to the tribunal of his dealings with Mr Turner was that initially he told the customer that he would "get a man out", meaning that he would ask a sales man from the respondent company to come out and give him a quote for the door and guttering. However Mr Turner said that he did not want a salesman to come out to his house. The claimant told Mr Turner that he would get back to him with a quote for the door but that "I don't do soffits and guttering". The claimant measured the garage door and ascertained that it was a standard size door. The claimant told the tribunal that he knew that he was not following the company procedure for providing a quotation but that he was trying to be helpful to Mr Turner, an elderly gentleman, who he found to be "friendly" unlike many other customers he had come into contact with. The claimant said that he wrote Mr Turner's name and telephone number and that a standard door was required on a "post it" note given to him by either Mr or Mrs Turner. When he got back to his van he stuck the note on the dash board and went off to his next job and forgot about Mr Turner until the evening of 1 June 2006 when the claimant was in Ballyclare visiting his aunt. The claimant did not inform anybody in the respondent company that Mr Turner was looking for the supply of a door because, he said, he was preoccupied with putting a roof on his own house as well as carrying out his work for the respondent. However it was also the claimant's case that a couple of days before 1 June 2006 he had brought the matter to the attention of the respondent when he had mentioned to Andrew Hunter that he had sizes for him.

10) The claimant told the tribunal that he was coming out of a shop in Ballyclare on 1 June 2006 when he saw Mr Turner, who did not recognise him. He remembered that he had said that he would get back to Mr Turner, so the following morning he telephoned him and told him that it would cost £580 for the door. The claimant told the Tribunal in his evidence that he stated that Fairco-McIlhagga would require a twenty percent deposit but that Mr Turner asked whether £100 would "do". The claimant said that he told Mr Turner that he thought it would be sufficient. This contradicted the claimant's version of events in his originating claim to the Industrial Tribunal and the case made by the claimant during the disciplinary process namely that the respondent would normally require a deposit of £100.00.

11) Following his meeting with Mr Turner, Mr Green checked company records which confirmed that there was no trace of Mr Turner's sales enquiry. This further aroused Mr Green's suspicions and at some time on 15 June 2006 Mr Green spoke to Mr McBride about his discussion with Mr Turner. Mr McBride authorised Mr Green to enter into a contract with Mr Turner on behalf of the company on the terms which had been specified by the claimant and with a deposit of £100.00. The tribunal noted that had normal procedures been followed, Mr Turner would have been charged £755.56 for the supply and fitting of the door.

12) Following this Mr McBride carried out an investigation into the incident and had discussions with various persons throughout the company to ascertain whether the claimant had informed anybody about his contact with Mr Turner in relation to the supply of the door and fascia and soffits. No one knew anything about it. Mr Green recorded the events of 15 June 2006 in two statements and also made a record of the questions put by him to Mr Turner on 15 June 2006 and the answers. These documents are undated but it was confirmed to the Tribunal that they would have been made sometime between 15June 2006 and 22 June 2006. Mr McBride discussed the matter further with Mr Green and the claimant's line manager Mr Nelson. They suspected the claimant of having intended to carry out the work for Mr Turner on his own behalf in competition with the respondent.

13) On 22 June 2006 the claimant was informed by Niall Curley that he was required to attend a meeting in the premises of the respondent. He was not informed in advance of the purpose of the meeting. He went into the respondents premises at Boucher Road at 3.30pm on 22 June 2006. Mr Nelson, Mr McBride and Ms Rosemary Keenan, the respondent's human resources manager, were present on behalf of the company, the latter in an advisory capacity. Mr McBride opened the meeting by informing the claimant that the meeting was for investigation purposes and it was not a disciplinary meeting. The tribunal does not accept the claimant's evidence that Mr McBride told the claimant that he had no need to be accompanied at the meeting but finds that he did not mention the issue of representation at all. The respondent's disciplinary procedure does not set out the process to be followed at an investigatory meeting.

14) Mr McBride asked the claimant about "a customer Mr Turner of Ballyclare to whom the claimant was alleged to have given the price for a single door". The claimant initially replied that he had no recollection of a Mr Turner. Mr McBride then told the claimant that he was following a line of enquiries into an allegation that the claimant had been asked by Mr Turner for the price of a single door that the claimant had measured and then provided a quotation. The quotation was agreed with Mr Turner and that the claimant was to collect a deposit for the order. When asked did he know anything about it the claimant replied no and then asked, "Did I lift the deposit off him?" The meeting closed at about 3.45pm. Mr McBride told the tribunal that he did not believe the claimant when he said that he had no recollection of Mr Turner or his dealings with him. The tribunal did not accept the claimant's evidence that he did not recall Mr Turner at the investigatory meeting. We were satisfied that the nature of the investigation was clear to the claimant. Following the meeting it was decided to institute disciplinary proceedings against the claimant.

15) After the meeting ended, the claimant sat in his van in the yard waiting for the hooter to go to signal the end of the working day at 4.30pm. Just prior to 4.30pm, Mr Nelson came out and gave him a letter dated 22 June 2006 signed by Rosemary Keenan advising that a disciplinary meeting had been arranged for 26 June at 10am. It went on; "we are investigating an allegation of misconduct against you namely,

1. You have carried out work which is considered to be in competition to the work undertaken by the company.

2. Have used the company vehicle for unauthorised work.

3. You have been carrying out unauthorised work for personal use during company hours.

The letter referred the claimant to the terms of the disciplinary procedure contained in the company's employment handbook which was enclosed with the letter and stated that if the allegation outlined against him was found to be true "a possible outcome is dismissal on the grounds of gross misconduct." Also enclosed were copies of the two statements of Mr Green and the list of questions and answers referred to above. The claimant was not provided with a copy of the cheque or the agreement between the respondent and Mr Turner. The claimant was advised of his right to be accompanied at the meeting by a fellow employee or a trade union representative. The tribunal did not accept the claimant's contention that this letter had been prepared prior to the investigatory meeting although it is of the view that the respondent was clear that disciplinary proceedings would be instituted if the claimant's responses at the investigatory meeting were to be found unsatisfactory.

16) A disciplinary meeting took place on 16 June 2006 and was conducted by Mr Raymond Nelson with Ms Keenan in attendance. The claimant was accompanied by his trade union representative, Maurice Cunningham. The claimant confirmed at the opening of the meeting that he had received the letter dated the 22^nd June 2006 with enclosures and that he had had time to consider his response. As Mr Nelson was about to read out the allegation against the claimant, he was interrupted by Mr Cunningham who enquired why the allegation had not been put to the claimant at the first interview on 22 June 2006. At this point Mr Nelson left the meeting and returned accompanied by Mr McBride, who explained that the meeting of 22 June 2006 was an investigatory meeting following which it was discovered that there was a strong case for disciplinary action to be taken. Mr McBride then left the meeting and the disciplinary meeting resumed. The claimant told Mr Nelson that he did not remember Mr Turner until Mr Nelson had handed him the letter on 22 June 2006 and told him to read it. He said he had been sent out by the respondent to fix the handle. The customer had asked how much it would cost for a garage door. He had measured for a standard door and phoned the customer back for a price of £585.00 which he had obtained from Andrew Hunter. He said that when he was asked about the fascia he had told Mr Turner that "I don't deal with that but I will get the man who does to contact you". He said that after he obtained the price from Andrew Hunter he did not go back to the customer because it went out of his head. He had told the customer that there would be a £100 deposit which was the amount that Fairco would normally request and that he had nothing else to say. The claimant told Mr Nelson that he had forgotten to mention to Mr Green that Mr Turner required a front door. Mr Cunningham argued on behalf of the claimant that as no work had been carried out by the claimant and as at no time did the customer ever think that he was getting anything else other than a "Fairco-McIhagga door," no disciplinary offence had been committed.

17) The disciplinary meeting was adjourned to enable Mr Nelson to make enquiries with Andrew Hunter who made a statement dated 26 June 2006 which stated. "I hereby confirm that I am involved in the estimating process for Fairco-McIlhagga and that I have not processed a quotation for UPVC products for Mr and Mrs Turner, 100 Ballyclare Road, Ballyclare nor have I provided a quotation for a single door for Mr Ingram". Ms Keenan wrote out to the claimant on 26 June advising him that the disciplinary hearing had been reconvened and attached Mr Hunter's statement to that letter. At the hearing the claimant said that he went up immediately to inform Ms Keenan and Mr Nelson that he had not obtained a price from Mr Hunter and at the reconvened meeting took place on 29 June, the claimant said that he had told Andrew that he had sizes for him but that he did not give them to him. He further stated at the disciplinary hearing that Mr Hunter had priced a back door for him in December 2003 and this was the price given to Mr Turner. The disciplinary meeting concluded.

18) Mr Nelson consulted with Rosemary Keenan and decided to uphold the allegation of undertaking work in competition with the company, namely measuring a door job on Friday 26 May 2006 at the premises of Mr Turner and that the appropriate penalty was the summary dismissal of the claimant. The claimant was notified of this by letter dated 30 June 2006 and that he was to be dismissed with immediate effect. The letter stated the claimant's right to appeal under the respondent's disciplinary procedure against the decision to dismiss him. The Tribunal accepted Mr Nelson's evidence that he considered that no other sanction was available to the company as "all trust and confidence in the claimant was gone" and on this basis that he felt there was no alternative but to dismiss the claimant. In response to a question from the claimant's solicitors as to whether he considered mitigating factors such as the claimant's length of service, Mr Nelson replied that he did consider this but that considered that as the duty of trust and confidence had been breached, he had no option but to dismiss the claimant.

19) The claimant lodged notice of his intention to appeal against the decision to dismiss him on 4 July 2006, the grounds for his appeal were that:- the decision to dismiss did not reflect the objectives of the procedure i.e. to correct his behaviour and bring about improvement of the employee's performance; the investigation was carried out by someone senior to the disciplinary officer; that the offence did not amount to gross misconduct and that the charge against him was not proven as there was no work undertaken.

20) The appeal hearing took place on 26 July 2006 and was heard by Mr Gordon Bell chairman of the Board of Directors. Ms Keenan was again present on behalf of the company and the claimant was accompanied by his trade union representative Mr John Corry. During the appeal hearing the claimant told Mr Bell that he mentioned to Andrew Hunter that he had sizes for him and that Mr Hunter asked him to go up and speak to him in his office. The claimant stated that he did not do so because Mr Nelson was "on his back all the time" and by way of example referred to a previous warning issued to him by Mr Nelson in December 2005 for wasting time before leaving in the mornings. He raised procedural deficiencies with the investigation in that he had received no prior indication of the purpose of the meeting and that he believed that Mr McBride had already made the decision to dismiss the claimant having led the investigations and passed it down the ranks for action to be taken.

21) The claimant accepted that he had measured the door and told Mr Bell that he had given a quotation to Mr Turner which was prepared using a price from a quotation prepared for him by Mr Hunter in 2003. The tribunal was provided with a copy letter which had been sent by another firm of solicitors on 16 October 2003 giving notice to quit to the claimant's tenant at 25 Carrs Glen Park, which makes reference to damage to a back door in the sum of £523.87. The claimant told the tribunal that he added a bit to the price to take inflation into account.

22) He accepted that he did not communicate Mr Turner's request for a quotation to anyone in the company and said that this was because he had "too much going on working in his own house". He maintained that there was no wrongdoing on his part. His trade union representative asked that the claimant's length of service and personal record be taken into account and queried how the claimant could be carrying out work in competition when the cheque which was post dated was made payable to Fairco - McIlhagga. The claimant then stated that he had picked up from listening to customers prices that they had paid for the door. He confirmed that he had told Mr Turner that a deposit would be required and this would normally be £100. The claimant then said that he had forgotten about it and did not go out to collect the cheque. He told Mr Bell that he had not actually remembered Mr Turner until he had driven out to Mr Turner's house in Ballyclare after he had read the letter and documentation received by him on 22 June 2006. Before making his decision on the appeal, Mr Bell spoke with Andrew Hunter who confirmed that he had spoken with the claimant who had said he had sizes for him but the claimant had not mentioned that this was in connection with Mr Turner.

23) On 31 July 2006 Mr Bell wrote out to the claimant advising him that he was satisfied that there was sufficient grounds to sustain the allegations against him and that the dismissal was appropriate in the circumstances.

24) The claimant lodged his complaint of unfair dismissal and for unpaid overtime which was received at the Office of Industrial Tribunals and the Fair Employment Tribunal on 14 September 2006. Between this date and the date of the Tribunal hearing the respondents inspected the telephone records relating to the claimant's work mobile phone number. It was accepted by the representatives of both the claimant and the respondent that these documents came to the attention of the personnel officer after the decision to dismiss the claimant was made and therefore were not relevant to the issue of the fairness or otherwise of the dismissal. However it was accepted that they were relevant to the issue of remedy in the event that the tribunal found that the dismissal of the claimant was unfair and therefore were admissible on that basis. Between 1 September 2005 and 3 July 2006 the records show that the claimant made 102 telephone calls to a competitor of the respondent, the Smart Window Company in Bangor.

25) On 2 July 2007 Mr McBride called into Smart Windows and spoke to a Mr Keith Whitehouse, who is a former employer of the respondent and now the manager of the Smart Window Company. Mr Whitehouse informed Mr McBride that the claimant is a regular customer and has purchased windows and doors for years. The claimant did not dispute that he was a longstanding and regular customer, but he told the tribunal that this was for items either for his own properties or for work carried out by him for family members. He told the tribunal that he knows Mr Whitehouse is his friend and that they would have socialised together regularly, especially before the claimant's marriage. He suggested that the majority of the calls would have been of a personal nature and not in relation to goods. The claimant did not know whether he had an account with Smart Windows or not. The tribunal noted that invoices issued to the claimant by Smart Windows contained the reference "ACC. NO: INGRO1.

26) It was submitted on behalf of the claimant that the claimant's dismissal was unfair because the respondent's findings that the claimant was guilty of gross misconduct were unsustainable in the face of the evidence; that the procedures adopted were unfair; and that the sanction was manifestly excessive.

4. The Law

Article 130(1) of the Employment Rights Northern Ireland Order 1996 provides "in determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show:-

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

(b) that it 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.

(2) A reason falls within this paragraph if it –

b. relates to the conduct of the employee.

Article 130 (4) provides: - where the employee has fulfilled the requirement for paragraph one, 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 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.

Article 130A (2) inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:-

"Subject to paragraph(1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure".

The statutory dispute resolution procedures prescribed by the 2003 Order and set out in Schedule 1, part 1 of the 2003 Order apply in this case. Where an employer fails to comply with the 3 step statutory dismissal procedure, a dismissal is rendered automatically unfair.

The tribunal considered the following case law:- Foley v Post Office; HSBC Bank Plc (formerly Midland Bank Plc) -v- Madden 2000 IRLR 827 CA; Iceland Frozen Foods -v- Jones 1983 ICR17; British Homes Stores -v- Burchell 1978 IRLR 379 EAT; W Weddel and Company Limited -v- Tepper 1980 IRLR96; Polkey -v- A E Dayton Services Limited 1987 IRLR 503; Ulsterbus Limited v Henderson 1989 IRLR 251 NICA; Trusthouse Forte (Catering) Limited v Adonis 1984 IRLR 382; LJ Sewell and J Francis v Ford Motor Co 1973 IRLR 25; W Devis & Sons Ltd v RA Atkins 1977 IRLR 314; CEX Limited v Mark Lewis 2007 UKEAT/0013/07; Software 2000 Ltd v Andrews 2007 IRLR 568 EAT.

The tribunal had regard to the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures. Failure by an employer to observe any provision in the Code does not of itself make the dismissal unfair, but may be taken into account by a tribunal when deciding whether the employer acted reasonably in dismissing an employee. The Code sets out the "Core principles of reasonable behaviour" which are to use procedures primarily to help and encourage employees to improve rather than just as a way of imposing a punishment; inform employees of the complaint against them, and provide them with an opportunity to state their case before decisions are reached; allow employees to be accompanied at disciplinary meetings; make sure that disciplinary action is not taken until all the facts of the case have been established and that the action is reasonable in all the circumstances; never dismiss for a first disciplinary offence, unless it is a case of gross misconduct; give employees a written explanation for any disciplinary action taken and make sure that they know what improvement is expected; give the employees an opportunity to appeal; deal with issues as thoroughly and promptly as possible; and to act consistently.

5. Conclusions

The tribunal was satisfied that there was compliance with the statutory dismissal procedure and therefore went on to consider the fairness or otherwise of the claimant's dismissal pursuant to Article 130 and 130A of the 1996 Order as amended.

The tribunal was satisfied that the respondent had established that the reason for the claimant's dismissal was related to his conduct and was therefore for a potentially fair reason. The tribunal did not consider that the facts were capable of supporting a suggestion made by the claimant that he had been dismissed because the respondent wished to reduce the size of its workforce.

Therefore the tribunal had to determine whether the dismissal was fair or unfair within the meaning of Article 130(4). The tribunal concludes that the respondent had a genuinely held belief that the claimant was guilty of gross misconduct, namely carrying out work in competition with the respondent. It was not disputed by the respondent that the customer believed at all times that the door was being supplied by the respondent and that the deposit cheque was made out to the respondent. However it was accepted by the claimant during the disciplinary and appeal hearings that he had measured the door and provided a quotation to Mr Turner and that he had agreed a £100 deposit knowingly in breach of the respondent's procedures. The fact is that the claimant failed to provide a satisfactory explanation as to why he did not notify anyone in the company that Mr Turner was seeking the supply and fitting of the garage doors, fascia and soffits or why he had acted contrary to company policy and outside his own job description. During the disciplinary and appeals hearings, the claimant constantly changed his account about how he happened to quote a price of £580 with a £100 deposit to Mr Turner. Initially he said that the price had been given to him by Mr Hunter and that he had then forgotten to go back to the customer. On the claimant's own evidence he had spoken to Mr Hunter a couple of days prior to 1 June 2006. Then when he was given a copy of Mr Hunter's statement obtained by Mr Nelson after the first disciplinary meeting, the claimant changed his account by stating that he had mentioned that he had sizes for him and that he had based the price on the quotation given to him for a single door in 2003. The tribunal considers that the evidence given by the claimant that he had forgotten about Mr Turner until the chance encounter in Ballyclare undermines his case that the conversation with Mr Hunter a couple of days before about sizes related to Mr Turner. The tribunal questions why the claimant mentioned sizes when the claimant knew that the door was of a standard size. Another possibility advanced by the claimant was that the quotation was based on his own knowledge of the price of doors gleaned from customers over the years. It is clear to the tribunal that Mr Nelson did not accept the claimant's explanation in relation to his statement that either he or the company did not provide fascia and soffits. The tribunal concurs with the respondent that whether the claimant told Mr Turner "we don't do that / I don't do that"- both statements are untrue. Therefore the tribunal concludes that the respondent had reasonable grounds upon which to sustain the belief that the claimant was guilty of gross misconduct and that the respondent had formed that belief on those grounds after carrying out an investigation which was reasonable in all the circumstances of the case.

The tribunal is satisfied that the decision to dismiss the claimant did fall within the band of reasonable responses which a reasonable employer might have adopted, mindful that it is not for the tribunal simply to substitute its own view of what a reasonable course of action might have been. The tribunal disagrees that the respondent did not consider whether a lesser penalty was appropriate or fail to take into account mitigating factors. The tribunal finds that the respondent acted reasonably in concluding that the appropriate penalty for the claimant's gross misconduct in this case was dismissal, as it had lost trust and confidence in the claimant as an employee.

The tribunal has carefully considered the procedure adopted by the respondent leading to the claimant's dismissal and is satisfied that the respondent has complied with the principles of fairness contained in the LRA Code of Practice. The claimant alleges that he was not given the opportunity of being accompanied at the investigatory meeting on 22 June 2006 and that he was not given the statements of Mr Green and a copy of Mr Turner's cheque prior to that meeting. The meeting on 22 June 2006 was an investigatory meeting held solely to establish the facts of the case. It was stated at the outset by Mr McBride that it was not a disciplinary meeting. The LRA Code states that where an investigatory meeting is held solely to establish the facts of a case, it should be made clear to the employee involved that it is not a disciplinary meeting. The claimant's case is that the respondent acted unfairly because he was not advised that he could be accompanied at the investigatory meeting. The LRA Code of Practice does not specify that an employee has the right to be accompanied at an investigatory meeting. The right to be accompanied attaches to disciplinary hearings and the claimant was informed of this right prior to the disciplinary meetings and was in fact accompanied by his trade union representative. The respondent did furnish the claimant with copies of Mr Green's statement prior to the disciplinary hearing and the claimant was given the opportunity of responding to these at both the disciplinary and appeal hearings. The tribunal does not accept that the claimant was treated unfairly on the grounds that he was not given the opportunity to cross examine Mr Green and Mr Hunter, in circumstances where neither the claimant nor his trade union representative had requested their presence at either the disciplinary or appeal hearings.

The tribunal accepted that the respondent omitted to provide the claimant with copies of the cheque and the agreement subsequently entered into with Mr Turner. The tribunal considered that this could potentially amount to a breach of the rules of natural justice which could render the dismissal procedurally unfair. Therefore the tribunal had to determine whether it would have made any difference to the outcome of the disciplinary process had the respondent provided the claimant with this documentation. In the Software 2000 Ltd v Andrews case, the EAT held that in the Article 130(4) "exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel". There are five possible conclusions that a tribunal may reach, according to Mr Justice Elias. Firstly, the evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction. Secondly, the employer may show that if fair procedures had been complied with, the dismissal would have occurred in any event. The dismissal will then be fair in accordance with Article 130(A). Thirdly, the tribunal may decide there was a chance of dismissal but that it was less than 50%, in which case compensation should be reduced in accordance with the Polkey principles. Fourthly the tribunal may decide that employment may have continued, but only for a limited period. Finally the tribunal may decide that the employment would have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can effectively be ignored.

The tribunal in this case concluded that there was a 90% to 100% chance that the claimant would still have been dismissed, for the reasons set out in paragraph 3 above. The documentation in question would not have assisted the claimant in putting his case any further at the disciplinary and appeals hearing and the tribunal takes into account that the claimant's trade union representatives at both hearings did make the point that it was a Fairco-McIlhagga door and that the claimant had not received a deposit. Therefore it follows that the dismissal is fair in accordance with Article 130 (A).

Therefore the tribunal finds that the claimant's claim of unfair dismissal is not well founded and his claim is dismissed.

Chairman:

Date and place of hearing: 21-24 January 2008, Belfast.

Date decision recorded in register and issued to parties: