Industrial Tribunals Northern Ireland Decisions

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Cite as: [2009] NIIT 190_06IT, [2009] NIIT 190_6IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 190/06

191/06

CLAIMANTS: James Creggan

Martin Wallace

RESPONDENT: Down District Council

DECISION

The unanimous decision of the tribunal is that the claimants were not unfairly dismissed.

Constitution of Tribunal:

Vice President: Mrs P Smyth

Members: Ms Wright

Dr Mercer

Appearances:

The claimants were represented by Mr B Scullion, Solicitor, of McGrady Collins, Solicitors.

The respondent was represented by Mr R Sheils, Barrister-at-Law, instructed by Gary Daly & Company, Solicitors.

The issues

The issues to be determined are:-

(i) whether the claimants were guilty of gross misconduct;

whether a fair procedure was adopted;

whether the claimants were treated inconsistently in comparison with other employees; and

whether the decision to dismiss was within the band of reasonable responses.

The tribunal heard evidence from both claimants and from Andrew Wilson, John Kearney, Sam Davis, Robert Fitzsimons, and Kevin Doherty, on their behalf. The tribunal heard evidence from Frank Quinn, Patrick Watters, Macartan Bryce, Peter Cunningham, Isabelle Gordon, and Dr Carol Ackah, on behalf of the respondent.

The tribunal found the following facts proved on a balance of probabilities:-

3.1 Mr Creggan, was employed by the respondent as a general operative from 25 September 2000 until his dismissal for gross misconduct on 6 January 2006. At the date of his dismissal, he had a formal written warning on his disciplinary record for an unrelated manner.

3.2 Mr Wallace, was employed by the respondent as a general operative from 16 October 2000 until his dismissal for gross misconduct on 6 January 2006. At the date of his dismissal, he had a clear disciplinary record.

3.3 Although employed as a general operative, Mr Wallace carried out duties driving refuse lorries because he had a HGV licence. Mr Creggan did not carry out driving duties because he had a provisional HGV licence only.

3.4 The decision to dismiss the claimants related to an incident which occurred on 20 October 2005. On that date, Mr Wallace had been instructed to drive a refuse lorry in a rural area and Mr Creggan had been instructed to act as helper.

3.5 At some time before lunch the claimants’ supervisors, Mr Watters and Mr Quinn, came upon the vehicle on the Drumnaquoile Road. It is accepted that Mr Wallace was at the rear of the vehicle, and Mr Creggan was in the driver’s seat. It is also accepted that Mr Quinn sought an explanation from Mr Wallace and that he was told that Mr Wallace had a sore back and that was the reason Mr Creggan was driving the vehicle.

3.6 The supervisors drove on, and a short time later sought advice from the respondent’s Human Resources Department regarding the situation. Consequently, the claimants were instructed by radio to return to the depot.

3.7 Upon their return to the depot, the claimants were immediately interviewed by the Director of Technical Services, Mr Canice O’Rourke. Both claimants explained that the reason Mr Creggan was driving the vehicle was because he had heard a loud clicking and banging sound at the rear of the vehicle, and Mr Wallace had decided to get out of the driver’s cab to check the problem. Mr Wallace contended that he had instructed Mr Creggan to “move the vehicle forward” to enable the checks to be carried out. It is accepted that the previous day a wheel on the vehicle had been repaired, and Mr Wallace stated that he had been advised to ‘keep an eye’ on the vehicle.

3.8 The supervisors alleged that as they approached the refuse lorry, they saw a ‘high-visibility’ coat flapping on the passenger side of the vehicle, which they believed was being worn by Mr Wallace because this was the side of the vehicle from which he emerged. Both claimants denied that Mr Wallace had been hanging onto the side of the vehicle, and they asserted that the reason he emerged from the passenger side was because the cab was specially designed to enable a driver to walk across to the passenger side for safety reasons.

3.9 The respondent instructed Patrick McCluskey, Sports & Countryside Development Officer, to carry out an investigation into this matter. Interviews were held with both claimants and both supervisors. Written accounts of the meeting which took place between the claimants and Canice O’Rourke were also considered. A report was obtained from the garage manager regarding the condition of the vehicle, and in particular whether any clicking or banging sounds could be heard. A site inspection was held, to which neither claimant was invited. A personal inspection of the vehicle also took place. During the course of the investigation the claimants alleged that the supervisors were involved in a campaign of harassment against Mr Creggan. Mr McCluskey’s view was that these allegations had no bearing on the investigation and they were therefore ignored.

3.10 Mr McCluskey concluded that Mr Creggan had admitted driving the lorry ‘a few feet’ and that Mr Wallace admitted allowing him to do so. He took into account the fact that the explanation given at the scene to the supervisors, was that Mr Wallace ‘had a sore back’, and a different explanation was subsequently given that Mr Wallace suspected that the vehicle had a mechanical fault, and had asked Mr Creggan to drive the vehicle forward to enable him to check it.

3.11 Mr McCluskey did not accept the claimant’s contention that a reason for the discrepancy in the explanations was that the supervisors drove off before Mr Wallace had a chance to give a complete explanation. In reaching this conclusion, he took into account the fact that an examination of the vehicle by the garage manager on the day of the incident did not reveal any mechanical fault, nor was there any abnormal noise found when driving.

3.12 Mr McCluskey concluded that Mr Wallace had been hanging onto the side of the vehicle because he did not consider it credible that he would have changed seats with Mr Creggan, given the very short distance travelled by the lorry. Both claimants were found guilty of gross misconduct which could result in the issue of sanctions up to and including dismissal.

3.13 A disciplinary hearing then took place, and a report was prepared by Mr Macartan Bryce assisted by Isabelle Gordon. The allegation against Mr Creggan was that:-

“On 20 October 2005 he drove a refuse lorry (UCZ 9028), a responsibility for which he is neither qualified nor authorised to undertake.”

The allegation against Mr Wallace was that:-

“On 20 October 2005 he allowed a refuse lorry (UCZ 9028) to be driven by another person (Mr Creggan, the helper); a responsibility for which he is neither qualified nor authorised to undertake.”

and that:-

“On 20 October 2005 he was riding on the outside of the cab of that lorry in an unauthorised and dangerous way.”

All allegations were said to represent a serious breach of the Council’s Health & Safety Policy (Sections 4 and 5) and a breach of the relevant road traffic legislation.

3.14 Mr Bryce considered the documentary evidence and the investigation report. Mr Bryce also considered a statement from Mr Wallace that custom and practice existed regarding unqualified personnel driving vehicles within the Council. In view of this allegation, Mr Bryce carried out further interviews with Andrew Wilson, Paddy Watters, Frank Quinn, and Brendan McClean.

At the request of the claimants, Mr Bryce also invited Tony Mahon, Andrew McCluskey and Stephen Flanigan to attend an interview. These people refused to attend . Former members of staff were not interviewed in line with Council practice. In addition, Mr Creggan had named a person called ‘Steven Walker’. The respondent could not trace this person.

3.15 At the tribunal hearing, Mr Creggan gave evidence that he telephoned Isabelle Gordon in early December when he realised that the name ‘Steven Walker’ was incorrect, and that the correct name was Steven Wallace, Mr Wallace’s brother. He was told that no further interviews would be arranged. Ms Gordon gave evidence that she did not receive the telephone call until after the disciplinary report had been issued and the decision to dismiss had been taken. The tribunal prefers the evidence of Ms Gordon because it is more likely than not that Mr Creggan only realised his mistake when he read the disciplinary report, since no other reason was suggested which might have triggered the realisation that an incorrect name had been submitted.

3.16 Mr McCluskey concluded from the interviews with these persons that there was no evidence of the existence of custom and practice within the Council of unqualified personnel driving vehicles. He “was satisfied that historically and by way of a stand-alone incident there had been a management oversight in respect of adherence to new vehicle licensing requirements, with the effect that staff were inadvertently driving vehicles under-qualified. This had been immediately rectified by management at the time and did not constitute establishment of a custom and practice which of itself would have amounted to an illegal and criminal act. [He] was also satisfied from the evidence there was no systematic practice of personnel driving vehicles unqualified”.

3.17 Mr Bryce concluded that Mr Wallace allowed Mr Creggan to drive the refuse lorry for a reason(s) other then vehicular issues, because of the inconsistency in explanations which had been given, and because checks of the vehicle revealed no mechanical fault or unusual noise.

3.18 With regard to the issue of mitigation, Mr McCluskey rejected the allegation that a custom and practice existed of allowing personnel to drive without authorisation as set out at Paragraph 3.15 above. Furthermore, although Mr Wallace had a clear disciplinary record, Mr McCluskey concluded that he had exposed himself, Mr Creggan, the Council and members of the public to an unacceptable level of risk. In his view, this had led to a breakdown of trust and confidence with the respondent which could not be repaired via alternative corrective sanctions. Mr Wallace was therefore summarily dismissed. Mr Creggan was also summarily dismissed for similar reasons

3.19 Both claimants exercised their right of appeal to a panel chaired by an independent chairman selected by the Labour Relations Agency, who sat with a member of management and an independent trade union member.

3.20 Following the appeal, the panel upheld the decision to dismiss by a majority. The trade union member agreed that both claimants had been guilty of gross misconduct, but did not agree that the decision to dismiss was justified.

3.21 At the tribunal hearing, the claimants called evidence from Sam Davis, an employee of the respondent who had been disciplined and convicted in the criminal court of dishonestly removing property in a council vehicle, during working hours, and who had not been dismissed. Mr Davis was relied upon as an example of inconsistent treatment of employees who had been guilty of gross misconduct. The claimants did not, however, refer to Mr Davis in the course of the disciplinary or appeal process.

3.22 Ms Gordon, Human Resources Manager with the respondent explained that she was involved in the disciplinary process involving Mr Davis. Whilst it was clear that Mr Davis was guilty of gross misconduct, the letters relating to the investigation and disciplinary process did not refer to Mr Davis’ alleged conduct as ‘gross misconduct’ but merely referred to ‘serious allegations’. On that basis, Mrs Gordon’s advice to the disciplinary officer had been that it would be procedurally unfair to impose the penalty of dismissal.

3.23 The claimants also called Robert Fitzsimons to support the allegation that there existed a custom and practice of allowing unqualified personnel to drive vehicles with the council. The tribunal accepts Mr Fitzsimons’ evidence that he raised concerns with management that on occasions the caged van which he was instructed to drive was overweight and his licence did not permit him to drive it. Mr Fitzsimons’ concerns arose because his vehicle was weighed upon entry to the landfill site, and also on leaving after the rubbish had been deposited. After raising concerns on three or four occasions, and being reassured that his licence was sufficient he was no longer asked to drive a caged lorry, but only a van, although no reason was given to him for this change of instruction.

3.24 Dockets were also put in evidence to the tribunal confirming that a caged lorry entered the landfill site weighing 3,820 kg, and left the site weighing 3,460 kg. Although Mr Fitzsimons was not driving the vehicle on this occasion, or on another occasion when similar weights were recorded, this evidence suggested that the laden weight of the vehicle would not have permitted an employee with Mr Fitzsimons’ licence to drive it. The claimants did not refer to Mr Fitzsimons during the disciplinary or appeal process, and therefore this evidence was not considered by the panel.

3.25 The tribunal also heard evidence from Andrew Wilson, whose name had been given to Mr Bryce during the disciplinary process, and who had given a statement. The tribunal accepts Mr Wilson’s evidence that he had been instructed to drive a road sweeper and that he did so in good faith, having provided his licence to the respondent at the start of his employment. On one occasion, he received a radio communication, informing him that his licence did not entitle him to drive the vehicle and an instruction to return this vehicle to the depot. Mr Wilson refused to drive the vehicle back to the depot in the circumstances, and the respondent had to send another driver to drive the vehicle back to the yard. The tribunal heard evidence that management within the council had been unaware of changes to the road traffic legislation for a substantive period of time, and this had resulted in Mr Wilson being asked to drive a vehicle without an appropriate licence.

3.26 Both claimants maintained before the tribunal that the respondent’s motive in dismissing them was a longstanding dislike of Mr Creggan who had been a ‘thorn in the side’ of management in his trade union capacity. However, this allegation was not substantiated in evidence. It was put to Mr Quinn that a complaint had been made regarding the treatment of Mr Creggan’s daughter, however there is no evidence whatever that Mr Quinn, or indeed Mr Watters was responsible for the treatment which led to the complaint. The claimants put in evidence e-mails relating to concerns that staff had about the supervisors. However, no specific evidence was given to the tribunal that would justify any finding that the supervisors had a personal dislike of Mr Creggan. No complaint was ever made by Mr Creggan to the respondent about any alleged ill-treatment, and both Mr Quinn and Mr Watters maintained in evidence that they had a good working relationship with Mr Creggan. Witnesses called on behalf of the claimants stated baldly that Mr Quinn did not see ‘eye-to-eye’ with Mr Creggan, but no details were given to substantiate this assertion.

3.27 The respondent’s disciplinary procedure provides a list of offences which are categorised as amounting to gross misconduct. The procedure makes it clear that the list is not definitive, but is intended only as a guide. Examples of such offences are ‘serious breaches of safety regulations’ and ‘driving any Council vehicle without authorisation from his/her supervisor’. Although the procedure also states that any employee found guilty of gross misconduct ‘shall be summarily dismissed’ in practice this is not necessary the penalty imposed. The disciplinary procedure was sent to the claimants upon commencing employment but was not referred to at any time thereafter.

3.28 The tribunal accepts the claimants’ unchallenged evidence that neither was asked to attend induction training regarding the use of vehicles. Furthermore, although both claimants attended a meeting with the Health & Safety Officer, the tribunal is satisfied that in no sense could the meeting be considered to constitute sufficient training regarding the health and safety issues pertaining to drivers and helpers on vehicles. The tribunal accepts that at the meeting employees were simply told if they had any problems to come and talk to the Health & Safety Officer, and leaflets were handed out regarding the respondent’s Health & Safety Policy. In particular, the claimants’ attention was not drawn to the fact that driving any vehicle without authorisation, even a very short distance, would result in summary dismissal regardless of a clear disciplinary record.

3.29 Against this background, the tribunal notes the respondent’s evidence that throughout the disciplinary process, neither claimant appeared to fully appreciate the seriousness of the disciplinary charges.

The law

It is not disputed that the reason for the dismissal of the claimants was their conduct, which is a potentially fair reason set out in Article 130(1) of the Employment Rights (Northern Ireland) Order 1996. The tribunal then has to consider whether the dismissal was fair or unfair by reference to Paragraph 4 of Article 130. Paragraph 4 provides that the determination of the question whether the dismissal is fair or unfair depends on whether in the circumstances the employer acted reasonably or unreasonably in treating the conduct of the employee as a sufficient reason for dismissal, and the tribunal shall determine that question in accordance with equity and substantial merits of the case.

In British Home Stores v Burchell [1980] ICR 303, Arnold J stated that in the context of a misconduct case:-

“What the tribunal have to decide every time is, broadly expressed whether the employer 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 that 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 of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.

It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test, and the test all the way through, is reasonableness, and certainly as it seems to us, a conclusion on the balance of probabilities will in any surmissable circumstances be a reasonable conclusion.”

In Gerard Dobbin v Citybus Limited [2008] NICA 42, the Court of Appeal pointed out that when satisfied as to the employer’s beliefs and investigation, the tribunal must ask itself whether objectively the dismissal was “within the range of reasonable responses for this employer to have dismissed the employee. In some cases no range is necessary, for example, those in which the case for dismissal is obvious or those in which dismissal is clearly unreasonable. In the majority of cases there will be a range of reasonable responses”.

It is also clear from the authorities that dismissal might be considered an unfair sanction because the employer has in the past treated other employees guilty of similar misconduct more leniently. However, as the Court of Appeal pointed out in Paul v East Surrey District Health Authority [1995] IRLR 305, the allegedly similar situations must truly be similar. Beldam LJ referred to the judgment in Hadjionnou v Coral Casinos Ltd [1981] IRLR 352 where Waterhouse J said:-

“ … industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar, to afford an adequate basis for the argument … .”

The tribunal’s conclusion

The tribunal is mindful that its function in determining an unfair dismissal claim is not to re-consider the evidence and decide whether it agrees with the decision reached by the respondent. The tribunal may only upset the decision if a proper investigation was not followed, if the conclusion reached was not genuine or reasonable or if no reasonable employer could have taken the decision to dismiss in the circumstances.

The tribunal is satisfied that a proper investigation was carried out. Both claimants admitted that Mr Creggan drove the vehicle when he was not authorised to do. In view of the inconsistent explanations given for their conduct, and the fact that an examination of the vehicle did not disclose any mechanical fault, the respondent was justified in concluding that there was no acceptable reason for the claimants’ conduct. Furthermore, the respondent’s conclusion that the high-visibility jacket seen flapping on the side of the vehicle belonged to Mr Wallace, and that he was hanging onto the side of the vehicle cannot be said to be unreasonable. The tribunal does not consider that the failure to invite the claimants to a site inspection rendered the investigation unfair, because it is difficult to see how the site inspection could have affected the conclusion reached by the respondent in view of the admissions made by the claimants.

The respondent also took all reasonable steps to investigate the claimants’ claims that a custom and practice existed within the council of allowing unauthorised persons to drive vehicles. The respondent interviewed all current employees whom they were asked to interview, and who were willing to co-operate with the investigation. The respondent was entitled to conclude that the circumstances in which Andrew Wilson came to be driving a road sweeper when he was not authorised to do so, were quite different from the circumstances in this case. There was no intention on Mr Wilson’s part to drive whilst unauthorised, and the instruction to do so by a supervisor was the result of a lack of knowledge on his part regarding changes in legislation rather then any deliberate disregard for vehicle licensing restrictions. Although the tribunal was concerned that Robert Fitzsimons’ evidence suggested a less then strict approach to appropriate weights in vehicles, the tribunal notes that neither the disciplinary panel nor the appeal panel heard from Mr Fitzsimons. They therefore could not take his evidence into account.

As the tribunal stated at Paragraph 3.15, we are satisfied that the error in referring to Steven Wallace as Steven Walker only came to light after the disciplinary process had been concluded and the decision to dismiss taken. The tribunal does not consider that it was unreasonable to refuse to interview Steven Wallace at that stage. However, the tribunal notes that the claimants could have asked the appeal panel to hear his evidence if they had considered it to be significant.

The tribunal is satisfied that the claimants’ conduct amounted to gross misconduct in view of the potential consequences of a refuse lorry being driven by an unqualified driver, both in terms of risk to the public and to the employees themselves.

The tribunal is not satisfied that Sam Davis can be relied upon as a comparator for the purposes of establishing inconsistent treatment because the circumstances are in no way comparable. Whilst it is disturbing that Mr Davis was treated in the manner that he was, it has no bearing on this case.

The tribunal must therefore decide whether the decision to dismiss fell within the band of reasonable responses. The respondent conceded that throughout the disciplinary process neither claimant fully appreciated the seriousness of their actions. The tribunal considers it significant that neither claimant had any induction training regarding the appropriate use of vehicles, and in our view the Health & Safety Training was clearly deficient. When one also considers Mr Wallace’s clear record and Mr Creggan’s warning for an unrelated matter it is our view that the decision to summarily dismiss the claimants was harsh. However, as the Court of Appeal pointed out in Dobbin, the fact that this tribunal may have reached a different conclusion is not relevant. Two employers may reach different conclusions without either being said to be unreasonable. The very fact that an independent appeal panel could not agree on the final outcome in this case bears this out. The tribunal cannot conclude that no reasonable employer could have dismissed the claimants in all the circumstances of this case, bearing in mind the potential dangers of a refuse lorry being driven by an unqualified driver even over a short distance.

The claims are therefore dismissed.

Vice President:

Date and place of hearing: 23 - 27 February 2009, Belfast

Date decision recorded in register and issued to parties:

10.