Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 5314/03

CLAIMANT: Adrian Paul McMonagle

RESPONDENTS: 1. Seagate Technology

2. Stephen Gallagher

3. Michael Harper

DECISION

The unanimous decision of the tribunal is that the claimant's claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Chairman: Mr I Wimpress

Panel Members Mr Sidebottom

Mr Crawford

Appearances:

The claimant did not attend the hearing and was unrepresented.

The respondents were represented by Mr Peter Bloch of the Engineering Employers' Federation.

1. The claimant brought claims for unfair dismissal and disability discrimination. The claim of disability discrimination was dismissed following a Pre Hearing Review which determined that he was not disabled at the relevant time. The purpose of this hearing is to hear the surviving unfair dismissal claim. As it is clear that the appropriate respondent to the unfair dismissal claim is Seagate Technology as it employed the claimant at all material times, the claims against the second and third respondents are dismissed.
2. The claimant did not attend the hearing. The tribunal was satisfied that the claimant had been notified of the hearing and determined that the appropriate course was to proceed with the hearing bearing in mind that the dismissal was admitted and the onus of proof was therefore placed on the first named respondent to justify the dismissal.

Sources of Evidence

3. The tribunal received a bundle of papers from the respondent and heard evidence from Mr Michael Harper, Mr Peter Cavanagh and Mr Kevin Caldwell. The tribunal also received helpful oral submissions from Mr Bloch.

The Claim and the Defence

4. In his claim form dated 17 September 2003, the claimant alleged that he was unfairly dismissed from his employment. In paragraph 14, the claimant stated that he was dismissed from his job as a production operator on 20 June 2003. According to the claimant, on 17 June 2003 at 2.40 pm he received a phone call from his partner who told him that his manager from work had phoned looking for him and enquiring why he had not turned in for work. The claimant's partner replied that he was not back (at work) until tomorrow. The manager replied "No, the shift started today." The claimant phoned his manager, Peter Cavanagh, immediately and told him that he had made a mistake. According to the claimant, Mr Cavanagh laughed and told him that he wasn't the first to make that mistake. The claimant asked Mr Cavanagh to put him down as 12 hours holidays because 7 hours of the shift had passed. Mr Cavanagh replied that he wasn't allowed to do that any more and asked the claimant to come in and speak to him. The claimant underwent a disciplinary procedure and was dismissed on 20 June 2003. The claimant alleged that colleagues who made the same mistake were allowed 12 hours off as holidays or told to work an extra 12 hours at the end of the shift. The claimant alleged that he was treated differently because of his health problems. The claimant described his health problems as a disability but, as previously determined, he did not suffer from a disability at the relevant time.
5. In the response, the respondents accepted that the claimant was dismissed and stated that he was not unfairly dismissed, the reason for his dismissal being attendance, time-keeping and failure to follow proper procedures.

The Facts

6. The claimant was employed by the first named respondent as a production operator from 20 September 1994 up until his dismissal on 20 June 2003. The claimant worked on a twelve hour shift pattern which comprised of four days on a 12 hour day shift (7.00 am to 7.00 pm), followed by four days off and four days on a 12 hour night shift followed by four days off.
7. On 27 July 2002, the claimant was given a recorded verbal warning by the respondent for misconduct in the form of poor attendance. This was in respect of four occasions of absence amounting to one thousand, five hundred and fifteen hours between 14 August 2001 and 1 July 2002 and two occasions of lateness on 13 May 2002 and 15 June 2002. The warning remained live for six months until its expiry on 27 January 2003.
8. The claimant's absences were also the subject of an Absence Investigation Meeting on 23 October 2002.
9. On 31 October 2002, a disciplinary meeting took place in relation to the claimant's absence from work on 22 October 2002. It was put to the claimant that he had failed to follow the first named respondent's Absence Notification Procedure which required employees to make contact with the respondent within the first half hour of absence. The claimant's explanation was that he had a heavy cold, had switched rooms and did not hear his alarm go off. The claimant's girlfriend phoned in, without his knowledge, to say that he would not be in. When he woke at 11.30 am, he decided to go to work. During the meeting it was drawn to the claimant's attention that he had been late in arriving at work on three occasions since the verbal warning. As a result of the disciplinary meeting the claimant was given a first written warning in respect of poor attendance and failure to follow the respondent's Absence Notification Procedure. Again the warning remained live for six months.
10. A further Absence Review meeting took place on 17 January 2003 in respect of the claimant's ongoing absence from work from 9 December 2002.
11. A further disciplinary meeting was convened on 1 February 2003 to address the claimant's unauthorised absence from work, his continued absenteeism and failure to follow sickness-reporting procedures. Mr Peter Rabett (Shift Manager) and Mr Harper (Human Resources) conducted the meeting. The allegation of unauthorised absence from work was based on the claimant's failure to return to work on 24 January 2003 despite Dr McCrea assessing him as medically fit and his own agreement to do so. The continued poor attendance was based on the claimant's current absence and his previous bad record. The claimant's absence from work during the Christmas period in each of the four preceding years was highlighted at the meeting. The claimant raised queries in relation to Dr McCrea's evidence and that of the Unit Manager, Mr Stephen Gallagher, in respect of the claimant's agreement to return to work on 24 January 2003. Mr Harper made enquiries about these matters with Dr McCrea and Mr Gallagher and received answers which supported the disciplinary proceedings. The meeting reconvened on 11 February 2003 and the claimant was advised that the respondent had decided to issue a Final General Written Warning on the basis of a combination of misconducts. Mr Rabett advised the claimant that any further type of misconduct might lead to dismissal. The warning remained live for twelve months.
12. The claimant appealed against the Final General Written Warning and an appeal hearing was convened on 27 February 2003. On 3 March 2003, the claimant was informed that the decision to issue a Final General Written Warning was upheld.
13. On 14 March 2003, the claimant was late for work. At 9.45 am he phoned in to say that he had slept in and he arrived on site at 10.05 am. Mr Cavanagh interviewed the claimant about this matter and reminded him that he was on a Final General Written Warning and that the company could not afford any further lateness or absence. No further action was taken by Mr Cavanagh.
14. On Tuesday 17 June 2003, the claimant failed to attend work. Mr Cavanagh rang the claimant's home at 2.45 pm. He spoke to the claimant's girlfriend who informed him that the claimant was not at home and offered to get the claimant to phone Mr Cavanagh when he returned. The claimant phoned Mr Cavanagh at 2.50 pm and stated that he didn't know that he was meant to be at work and asked if he could put it down as holidays. Mr Cavanagh declined to do so. Mr Cavanagh refuted the allegation that he told the claimant that he wasn't allowed to do that anymore. The claimant then came in to work and an investigatory interview was conducted by Mr Cavanagh. Mr Cavanagh asked the claimant for an explanation as to why he had failed to come to work or inform Mr Cavanagh that he would be off. This constituted a failure to comply with the respondent's absence notification and certification procedure. The claimant responded that he believed that he was off until Wednesday morning and that he was off today. The claimant further stated that he would not have known that he was supposed to be working only for Mr Cavanagh phoning.
15. A disciplinary meeting was convened at 10.00 am on 20 June 2003 in relation to the claimant's failure to attend work on 17 June 2003 and not making contact regarding same. The hearing was conducted by Patrick Miskelly (Manufacturing Director) and Michael Harper (Human Resources Officer). The claimant sought to defend himself by alleging that other employees had done the same as him but without any action being taken against them. In particular he referred to Danny Kelly, Aaron Shongo and Gary Cassidy. Mr Harper advised that the Danny Kelly incident was refuted by the Technical Manager, Zack Taylor and that Aaron Shongo was spoken to by his manager 18 months ago and did not have any disciplinary record for these types of issues. Mr Harper further advised that each case was looked at on its own merits. Mr Harper did not look into the Gary Cassidy case as he had passed away a few years previously. The claimant also referred to Mr Cavanagh treating employees inconsistently and in particular to action not being taken against an employee who was caught sleeping twice. Mr Cavanagh refuted this allegation. The claimant went on to suggest that his manager should have exercised discretion in relation to his on case. Mr Miskelly pointed out that discretion had been shown in relation to the14 March 2003 incident. The panel retired to consider its decision at 10.40. The hearing reconvened at 12.45 and Mr Miskelly advised the claimant that he was being dismissed and explained the appeal procedure to him. There appears to have been an altercation between the claimant and Mr Harper as the claimant was leaving the room and thereafter Mr Rabett escorted the claimant off the site.
16. The claimant appealed by letter dated 23 June 2003 and a disciplinary appeal hearing was convened on 9 July 2003. The hearing was conducted by Mr Kevin Caldwell, the Human Resources Director. Mr Caldwell advised the claimant that the purpose of the hearing was to hear his appeal against his dismissal for "no show, no contact." The claimant was invited to outline his reasons for appealing. The claimant stated that it was a genuine mistake; that he had forgotten that he was due to return to work that day; that he had totally miscalculated and that he did not feel that it warranted termination. He again drew attention to three other employees who had made similar mistakes but had not been disciplined. Mr Caldwell indicated that he would look at the circumstances of each of the cases that the claimant had mentioned. Mr Caldwell also asked the claimant about previous incidents of lateness and the claimant accepted that he had been late one morning when either his alarm clock didn't go off or he turned it off and went back to sleep. This would appear to refer to the incident on 14 March 2003. The claimant also sought to make the case that he had not been given a fair hearing on the basis that during an informal discussion in February 2003 Mr Miskelly had stated "we don't need you here". This allegation was not pursed by Mr Caldwell who considered that it had no bearing on the hearing, although some discussion ensued as to the claimant's relationship problems with Mr Cavanagh and other managers. The claimant expressed the view that his manager should have allowed him to take 12 hours holidays because it was a genuine mistake and suggested that Seagate were waiting for him to slip up. Mr Caldwell pointed out that if that was the case, there would have been opportunity to have acted before in view of the claimant's record. The claimant accepted that he had committed an offence but felt that his manager should have been more lenient because his performance had improved and he was making more of an effort. The claimant also put forward a number of mitigating circumstances. In concluding the hearing Mr Caldwell indicated that he would consider the points that the claimant had made and get back to him in five days. After the meeting, Mr Caldwell ascertained from the managers of the three named comparators that they had not been charged with similar offences to the claimant and therefore was satisfied that there was no substance to the claimant's complaint that he was treated differently. Mr Caldwell also considered the other points made by the claimant but none found favour with him and in particular he did not accept that the claimant had forgotten his shift pattern. On 11 July 2003, Mr Caldwell wrote to the claimant and advised that after careful consideration the original decision had been upheld.

The Law

17. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:

"130. — (1) 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 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.

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

(b) relates to the conduct of the employee,

(4) Where the employer has fulfilled the requirements of paragraph (1), 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 in 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."

18. As this was a conduct dismissal we bear in mind the approach commended in British Homes Stores -v- Burchell [1980] ICR 303, in relation to the showing of a reason for dismissal in a misconduct case where Arnold J stated:-

"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. 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 thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances."

19. Useful guidance as to the application of Article 130 is to be found in the case of Iceland Frozen Foods v Jones [1982] IRLR 439 where the Employment Appeal Tribunal in applying the then equivalent English provision stated as follows:

"(1) the starting point should always be the words of [Article 130(4)] themselves;

(2) in applying the section 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 to be fair;

(3) in judging the reasonableness of the employer's conduct an Industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) 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;

(5) 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. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair."

As we are satisfied that this was a conduct dismissal, we must therefore apply the three limbs of the Burchell test followed by the Iceland Frozen Foods test, namely whether the decision to dismiss was within the band of reasonable responses.

Conclusions

20. At the time of the claimant's dismissal, he was on a Final General Written Warning and management had made it clear to him what the consequences would be if there were to be any further failure to adhere to the absence procedures. The claimant was subsequently let off with an informal verbal warning by Mr Cavanagh when he slept in on 14 March 2003. When he offended again on 17 June 2003, he was not so fortunate and the first named respondent invoked its disciplinary procedure. We are entirely satisfied that having carried out a reasonable investigation of the matter, the first named respondent genuinely believed and had reasonable grounds for believing that the claimant was guilty of misconduct in respect of his non-attendance and failure to follow company procedures on 17 June 2003. There is nothing to suggest that the disciplinary hearing and subsequent appeal were anything other than scrupulously fair. All of the matters raised by the claimant were thoroughly examined but were found to be of no substance. We are therefore satisfied that the first named respondent has proved that the dismissal of the claimant was justified on the basis of his misconduct and that the disciplinary procedures were carried out in a thorough and fair manner. In view of the claimant's previous history of poor attendance and failure to follow the absence notification procedures, we are satisfied that the decision to dismiss the claimant for misconduct was within the band of reasonable responses. The claim is therefore dismissed.

Chairman:

Date and place of hearing: 4 February 2008, Strabane.

Date decision recorded in register and issued to parties: