Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 899_03IT, [2008] NIIT 899_3IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 899/03

CLAIMANT: William Spiers Black

RESPONDENT: Shorts Bros Plc (Bombardier Aerospace)

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The matter of compensation is postponed until a reconvened hearing, as was directed by

Mr Brian Greene at a Case Management Discussion on 12 June 2007.

Constitution of Tribunal:

Chairman: Mr Cross

Panel Members: Mr Martin

Dr Eakin

Appearances:

The claimant represented himself.

The respondent was represented by Mr P Bloch of the Engineering Employers Federation.

The Evidence

The tribunal heard the evidence of the claimant and Mr W Cahoon on behalf of the claimant and on behalf of the respondent, Mr Watty and Mr Molloy.

Findings of fact

The claimant was employed by the respondent as a Production Manager firstly in Belfast and then subsequently in Montreal. He was employed by the respondent from June 1976 to his dismissal on 31 December 2002.

During the claimant's 2002 Christmas leave in Belfast, the respondent commenced a detailed investigation into the activities of the claimant and other senior managers, regarding suspected fraud in the claimant's department. During this investigation, which involved a search of the claimant's office in Montreal, the searching party discovered, what appeared to them to be a hand grenade, in the claimant's desk drawer.

This discovery occurred at 22.45 hours on Boxing Day night, when the offices were empty, save for the search team. The team decided to treat the grenade "as real", and alerted security who in turn alerted the police and the bomb squad. The search team was concerned that the offices that they were searching were adjacent to an airport, although there was a security fence between the office building and the runway. The bomb squad decided to remove the grenade and the offices were cleared for the returning workforce in the morning.

On Monday evening, 30 December 2002, a meeting took place in the Bar at the Culloden Hotel in Cultra which was attended by Mr Molloy, Vice President Human Resources of the respondent in Belfast, Mr Ryan, the senior officer of the respondent in Belfast and Mr Watty, Vice President of Strategy Belfast, who was the claimant's line manager. At this meeting Mr Watty was directed to dismiss the claimant from the respondent's service. A short statement was prepared, which Mr Watty was told to read to the claimant. He was told to say nothing else and not to answer any questions. The statement which Mr Watty read to the claimant the next day was as follows:-

"As a result of evidence in our possession with respect to activities associated with the Working Party in Montreal including payment irregularities, I have to inform you that effective immediately your contract of employment with the company is terminated. As these are part of a criminal investigation in both Canada and the United Kingdom we cannot disclose any more details. I wish to inform you that you have 7 days in which to appeal. As a consequence of the situation, the company have withdrawn the travel authority for your family's return to Canada. Finally someone from HR will be contacting you within the next 7 days to close out any outstanding issues."

On the next day 31 December, Mr Watty telephoned the claimant on the mobile phone that had been issued to the claimant by the respondent, before he went on Christmas leave. This was the first time that the claimant had been issued with a mobile phone. Mr Watty asked the claimant to come into the office to see him on an urgent matter. Mr Watty did not specify to the claimant that this was a disciplinary meeting, or offer him the opportunity to bring a colleague with him to the meeting. At the meeting, which was held in the presence of Mr Balfour, Mr Watty read the statement to the claimant. When the claimant asked for elaboration the statement was read again and the meeting concluded.

The claimant appealed against this dismissal and the appeal was heard on
27 February 2003, by the two men who had directed Mr Watty to dismiss the claimant and a Mr Elliott, the Vice President Engineering, of the respondent. At the outset of this appeal meeting, the claimant was informed, that the reason given to him for his dismissal, at the meeting on 31 December, was not the true reason for his dismissal. In fact the payment irregularities that had been referred to at that meeting were still under investigation, as the appeal was being heard and no conclusion was yet reached. The respondent, through Mr Ryan, told the claimant; "financial irregularities are still under investigation (judicial) and we don't want to go there. Just want to stick with the other reason." Although by that time the claimant knew about the discovery of the grenade, as he had received a letter from the respondent which told him about the discovery of the grenade and that the respondent viewed this as a breach of his contract of employment, which prohibited the taking of firearms onto company premises, the claimant was in a state of uncertainty as to exactly why he was dismissed and what he was appealing against. The letter referred to above, which was in the view of the respondent, altering the reason for the dismissal to the possession of the grenade in the claimant's office, went on to refer to the investigation regarding irregularities. Indeed the appeal process was further muddied by reference to "other matters of a financial nature, which remain unresolved concerning personal expenses and outstanding monies, which have been identified as part of an ongoing internal investigation".

At the appeal hearing the claimant was accompanied by a work colleague from the Belfast plant, Mr Neill. Mr Neill's notes of the appeal accord with the evidence of Mr Molloy, that the grounds for dismissal were changed at the appeal, from financial irregularities, to having a firearm in his office. By the date of the appeal hearing the parties both knew that the grenade was a fake, unarmed and of a type used in the film industry. The claimant informed the appeal that the so called grenade was in fact a paperweight that he had had on his desk for many years both in Belfast and Montreal. He said that senior members of the respondent company had played with the paperweight whilst it sat on his desk and indeed it had been taken to Montreal with his other office furniture, on his assignment there. The reason why it was in the drawer and not out on the desk, was that whilst he was on leave, the claimant was in the habit of clearing his desk and putting things like the paperweight out of view of cleaners, who might otherwise be tempted to take it.

The appeal upheld the decision to dismiss the claimant on the ground of gross misconduct as the possession of the device on company premises and its consequences were "very detrimental to the good conduct of the Company's business."

The tribunal saw two emails. One from a Mr Kell, who had been a work colleague, working for Canada Air, involved in a joint venture with the respondent, who said that he had seen the grenade used as a paperweight in the respondent's office on various occasions. The other email was from a Ms Carpenter, who was an employee of the respondent who shared the office of the claimant and worked for him. She was also familiar with the grenade and never felt threatened by it. The tribunal appreciate that these are not sworn statements but having regard to the fact that they emanate from Canada and the cost of bringing witnesses across the Atlantic, the tribunal is prepared to accept them at face value.

The Law

The employee has a right not to be unfairly dismissed by his employer. This is enshrined in Article126 of the Employment Rights (NI) Order 1996 ("the Order"). Under Article 130 of the Order it is for the employer to prove that the dismissal is for one of the reasons listed in 130(2), in this case the conduct of the employee. If the employer satisfies the tribunal on the reason for the dismissal, then under Article 130(4) it is for the tribunal to decide, whether, in the circumstances, the employer acted fairly and reasonably, in treating the reason as a sufficient reason for dismissing the employee. In reaching this decision the tribunal must have regard to "the circumstances (including the size and administrative resources of the employer's undertaking)". The tribunal's decision must be determined "in accordance with equity and the substantial merits of the case".

Decision

The unanimous decision of the tribunal is that the claimant was unfairly dismissed. When he was asked to attend his dismissal meeting with Mr Watty on 31 December 2002, he was given no indication that this was to be a disciplinary meeting. He was not given the opportunity to bring a work colleague with him to the meeting. He was given no chance to state his case or ask any questions as to the reason for his dismissal. He was in fact given an incorrect reason for his dismissal. The tribunal found it difficult to envisage a more unfair dismissal than that suffered by the claimant in this case. The reason for the dismissal which was given to him at that meeting was the ongoing fraud investigation in Canada and Northern Ireland. This investigation had not been concluded and the claimant had been given no opportunity to answer any allegations that were laid against him, as at the time of his dismissal they were not finalised. If ever there was a situation that called out for a suspension until the investigation was concluded this was it. Almost every rule of natural justice was broken. To cap the whole sorry saga, it transpired at the so called appeal, that the true reason for the dismissal, was not the reason given to the claimant at that meeting on 31 December.

Moving to the appeal meeting, this was flawed from the outset in that the two senior employees of the respondent, who had directed Mr Watty to read the notice of dismissal to the claimant on 31 December, were two of the three man appeal panel. The tribunal find it incredible, that in a company as large as that of the respondent, that a senior employee, with no previous involvement in the matter, could not be found to hear the appeal. The only conclusion that the tribunal can come to, is that the respondent knew that its dismissal of the claimant would, in the eyes of any fair minded person, be considered totally unfair and that the respondent was determined to rid itself of the claimant without further ado.

At the appeal hearing, the respondent through Mr Ryan, admitted that the fraud investigation, which had been the reason for the claimant's dismissal, was not even then, at the appeal hearing, concluded. The respondent thus changed the reason for the dismissal to the possession of the hand grenade paperweight. The tribunal are of the opinion, that this matter of the paperweight, the discovery of which was known to Mr Ryan and Mr Molloy at the time of their discussion in the Bar at Culloden Hotel on 30 December, was not the true reason for the dismissal. If it had been, why was it not mentioned at the dismissal meeting on 31 December? The whole issue of the paperweight is very strange. Its providence could have easily been established if either the claimant had been contacted on the mobile, which had been issued to him, or if any other employee, familiar with the claimant's office had been contacted. This would have blown the security of the search of the offices, so presumably for that reason was not done. The tribunal is left with the confused picture of an appeal, where the claimant is told at the outset that the reason for his dismissal, given to him at his dismissal, is no longer the true reason, but a different reason, known to the respondent at the dismissal but not then referred to, is substituted. The tribunal hold that this appeal was not fairly handled, leaving aside the serious flaw in the constitution of the panel.

The tribunal considered the reason for the dismissal for the purpose of Article 130(2) of the Order. The tribunal concluded that it was because of the conduct of the claimant, in having the grenade device in his desk. The respondent having satisfied the tribunal on the real reason for its action in dismissing the claimant, the tribunal turn to Article 130(4), to consider whether the dismissal could be considered to be fair. The tribunal conclude that the dismissal was indeed unfair for the following reasons. So far as the size and administrative resources of the respondent are concerned, the tribunal hold, that for a company of the size of the respondent, with its large human resources team, it is difficult to understand how the management created such an unfair process to deal with the claimant. So far as the equity and the substantial merits of the case are concerned, the tribunal heard nothing to deflect it from its finding that at all stages of this process the claimant was treated unfairly.

The tribunal, having held that the dismissal was unfair, considered the impact of the House of Lords decision in the case of Polkey v A E Dayton Services [1987] IRLR 503, on this dismissal. That case had to be considered in cases of unfair dismissal, prior to the changes in the law brought about by the provisions of the Employment (Northern Ireland) Order 2003, where procedural steps concerning the investigation of the reason for the dismissal and the disciplinary process, that should have been taken are not taken. A tribunal must consider whether even allowing for the procedural shortcomings the dismissal was never the less reasonable and fair. Lord Mackay in Polkey said, with regard to "the employer's action in treating the reason for the dismissal as a sufficient reason", in the present case the possession of the grenade paperweight;

"it is that action and that action only that the tribunal is required to characterise as reasonable or unreasonable. That leaves no scope for the tribunal considering whether, if the employer had acted differently, he might have dismissed the employee. It is what the employer did that is to be judged, not what he might have done. On the other hand, in judging what the employer did was reasonable it is right to consider what a reasonable employer would have had in mind at the time he decided to dismiss….." Lord Mackay in that case went on to say with regard to codes of practice in redundancy situations; but his words would fit other codes of practice or contractual disciplinary procedures, "failure to observe the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the employment tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee".

The respondent put forward, as its justification for failing to proceed under the rules of natural justice, or indeed under its own disciplinary code; the extreme crises which arose as a result of the finding of the grenade paperweight in the desk drawer of the claimant. The resulting embarrassment and disruption caused to the respondent at an airport site, in the aftermath of 9/11, was such that the respondent felt justified in the immediate dismissal of the claimant. The tribunal, having referred again to the Polkey decision cannot agree with the respondent's view of the case. The dismissal was stated to be on other grounds far removed from the problems caused by the discovery of the grenade paperweight, it was only when the respondent, at the appeal stage discovered that the investigation into the alleged fraud had not even then been concluded, that it decided to raise as the reason for the dismissal, the discovery of the paperweight. The tribunal hold, that the respondent, faced with the fact that the initial reason for the dismissal had been shown to have been spurious, decided to rely on the emotive reason of the discovery of the paperweight and the consequent police and bomb squad activity, as the only way out of the situation that it found itself in. It therefore held the flawed appeal on that ground only and compounded the already unfair situation by confirming the dismissal of the claimant. For these reasons the tribunal hold that the dismissal of the claimant was unfair. The actions of the respondent were not, in the opinion of the tribunal, those of a reasonable employer. Consequently the unfair dismissal situation cannot be rescued for the respondent by the decision in the Polkey case.

The tribunal will reconvene to deal with the issue of compensation.

Chairman:

Date and place of hearing: 6-7 May 2008

Date decision recorded in register and issued to parties: