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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Joyce v SitexOrbis Ltd [2009] NIIT 5105_09IT (04 December 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/5105_09IT.html
Cite as: [2009] NIIT 5105_9IT, [2009] NIIT 5105_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 05105/09;
05106/09
CLAIMANTS: Joseph Joyce
Patrick McConville
RESPONDENT: SitexOrbis Limited
DECISION
The unanimous decision of the tribunal is that:-
(i) The claimants were unfairly dismissed by reason of the respondent’s failure to comply fully with the statutory dismissal procedures.
(ii) In the case of each claimant only the basic award is made. In all the circumstances of the case, the tribunal declines the claimants’ request for a compensatory award in addition to the basic award.
(iii) Mr Joseph Joyce is awarded £2,100.
(iv) Mr Patrick McConville is awarded £1,370.
Constitution of Tribunal:
Chairman: Mr Travers
Panel Members: Mr Killen
Mr Hanna
Appearances:
The claimants were represented by Mr Moore LL.B. of PM Associates, Employment Law and Personnel Consultancy.
The respondent was represented by Mr Sonaike, Barrister-at-Law, instructed by Messrs Bird and Lovibond, Solicitors
REASONS
Issues
1. The claimants each seek an award arising from their alleged unfair dismissal by the respondent.
2. At the outset of the hearing the tribunal was requested by the claimants’ representative to determine as a preliminary issue:-
· The claimants’ application that the respondent be ordered to respond to requests for additional information and discovery.
· The claimants’ request that the date for the final hearing be adjourned to allow time for the claimants to receive and to consider the additional information and discovery sought by them from the respondent.
Preliminary issue
3. On 12 August 2009, the claimants’ representative sent two documents to the respondent’s solicitor. One was headed “Notice for Discovery”, and the other was described as a, “Notice for Additional Information”. The Notices contained 23 and 6 requests respectively.
4. The claimants did not receive a satisfactory response to the Notices, and so on 27 August 2009 their representative wrote to the tribunal to request that a case management discussion be convened.
5. By letter dated 3 September 2009 the tribunal informed the claimants’ representative that the request for a case management discussion had been refused due to the proximity of the final hearing.
6. On 8 September 2009, the claimants’ representative wrote to the tribunal to request that the hearing listed for 14 September 2009 be,
“...postponed and any costs of the postponement affixed to the Respondents. The Claimants’ have yet to receive any replies or discoverable documents despite two requests for Additional Information and Discovery being sent to the Respondent’s solicitors. Not only does this put the Claimants at a disadvantage in terms of running their case but the Respondent has failed to adhere to the overriding objective of the tribunal. Furthermore it would be impossible to produce bundles agreed or otherwise due to the proximity of the hearing. We would respectively suggest that at the very least the Full Merits Hearing on Monday is converted to a Directions hearing to compel the Respondents to provide responses to the Additional Information Notice and to obtain the documents requested in our Notice of Discovery.”
This letter formed the backdrop to the application made on behalf of the claimants at the outset of the hearing on 14 September 2009.
7. Each of the Notices served by and relied upon by the claimants seek to invoke the exercise of the tribunal’s discretion pursuant to “Rule 4” of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 [“the Rules”].
In fact, Rule 4 of the 2005 Rules deals with “Responding to the claim” and is irrelevant to the question of whether or not a tribunal should order the provision of further information or discovery. It is Rule 10 of the 2005 Rules which is applicable to the claimants’ application.
8. The nature of the claimants’ application was at all times clear to the respondent from the substance of the Notices. No prejudice has been caused to the respondent by the claimants’ apparent reliance on Rule 4 rather than Rule 10. In the circumstances the tribunal has considered the claimants’ application on its merits.
9. Rule 10(1) provides that:
“Subject to the following rules, the chairman may at any time either on the application of a party or on his own initiative make an order in relation to any matter which appears to him to be appropriate. Such orders may be any of those listed in paragraph (2) or such other orders as he thinks fit. Subject to the following rules, orders may be issued as a result of a chairman considering the papers before him in the absence of the parties, or at a hearing”.
10. In considering the claimants’ applications for further information and documentary disclosure, the tribunal has kept in mind the overriding objective set out at Regulation 3 of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.
Regulation 3 provides that:-
“(1) The overriding objective of these Regulations and the rules set out in Schedules 1, 2, 3, 4, 5 and 6 is to enable tribunals and chairmen to deal with cases justly.
(2) Dealing with a case justly includes, so far as practicable –
(a) ensuring that the parties are on an equal footing;
(b) dealing with the case in ways which are proportionate to the complexity or importance of the issues;
(c) ensuring that is dealt with expeditiously and fairly; and
(d) saving expense”.
Consistent with the terms of the overriding objective, any request for further information or documentary disclosure should be both relevant to the issues in the case, and also proportionate to the complexity and importance of those issues.
11. The tribunal considered individually each of the requests made on the claimants’ Notices. Submissions were heard from the parties’ representatives during the course of this consideration. The tribunal is grateful to the claimants’ representative, Mr Moore, for the realistic approach he demonstrated during this process. Many of the requests were either abandoned following submissions to and discussion with the tribunal, or the tribunal was told that the issue had already been addressed. Mr Sonaike, who acted for the respondent, assisted the tribunal in expediting the provision of information where such provision was deemed necessary.
12. Following this process, no issues remained outstanding on the Notice for Additional Information, and only 3 of the 23 items on the Notice for Discovery remained requested and outstanding. These were the items numbered 2, 11 and 12 on the Notice for Discovery.
13. It was agreed that the outstanding items would be obtained, if in existence, and provided to the claimants’ representative for his consideration in time for the lunchtime adjournment.
14. In the circumstances, the tribunal decided that it would be neither necessary nor proportionate to adjourn the hearing to another day. Consequently the hearing proceeded.
15. The claimants’ representative pressed no subsequent complaint that the agreed disclosure had not been addressed adequately.
Facts
16. The following factual conclusions have been reached on the basis of the evidence heard by the tribunal, and documents submitted to the tribunal by the parties. Both claimants gave evidence and were cross-examined. The respondent called three witnesses. The tribunal was provided on the day of the hearing with two bundles of documents, one from the claimants and the other from the respondent. Each party was advised to draw specifically to the tribunal’s attention any document in the bundle which they wished the tribunal to consider.
17. The claimant Joseph Joyce was born on 20/10/65 and commenced employment with the respondent in or around June 2002. The claimant Patrick McConville was born on 25/09/83 and commenced employment with the respondent on 11/11/03. Each claimant’s employment terminated on 16/01/09 when they were dismissed by the respondent on the grounds of gross misconduct.
18. The respondent is a company which provides security services. In January 2009 the respondent was employed under a contract with the Belfast Community Housing Association [“BCHA”] to provide security for vacant dwelling houses. Security was provided by means of metal shutters fitted to the windows of the properties, together with an alarm system which alerted the respondent if any person tried to enter a property.
19. The claimants were employed as “fitter/operatives”. Their duties included fitting shutters to properties and also attending at properties when an alarm was set off and securing the property if necessary. The claimant Mr Joseph Joyce was a team leader.
20. On 9 January 2009 the claimants were working together. They operated as a mobile team and they travelled to jobs in their company van as directed. On 9 January they were notified of an alarm which had gone off at a BCHA property [“the Property”].
21. Upon attending the Property the claimants say that they found the domestic oil tank to be leaking oil. It is said that they considered this to represent a risk to health and safety and so they emptied the tank. The claimants say that they found empty oil canisters scattered around the garden of the Property and they collected the oil into these canisters. They then placed the canisters into the back of their work van before driving off to their next job.
22. The removal of the oil by the claimants initially came to light as a result of a telephone call made to the BCHA by the resident of a neighbouring property [“the neighbour”]. The neighbour reported that he had seen two men drive up to the Property in one of the respondent’s vans. The men emerged from the van and proceeded to empty the contents of the oil tank into canisters. The men then removed the oil tank and the burner from the Property. The canisters, oil tank, and burner were all placed in the back of the respondent’s van before the men drove off. The claimants’ acknowledge that they did remove the oil from the tank and took it away, but they deny that they removed either the oil tank or the burner.
23. The neighbour noted down the registration number of the van and then called the BCHA which in turn contacted the respondent. The respondent’s operations manager then sought to contact the claimants. He attended Mr Joyce’s house. Mr Joyce was not at home but the operations manager was redirected to the leisure centre where he found Mr Joyce.
24. Mr Joyce readily acknowledged that the claimants had taken the oil. He said that the respondent’s van was now at Mr McConville’s house. It was said that Mr McConville wished to borrow the van for the weekend in order to dispose of some rubbish from his house. Subsequently that evening the van was brought to the house of the respondent’s operations director so that he could inspect its contents. When the operations director inspected the van he found that it contained canisters of oil as described by Mr Joyce. It also contained some empty oil canisters. There was no sign of either the oil tank or the burner.
25. Disciplinary proceedings ensued against the claimants and the outcome was that they were both dismissed. The decision to dismiss was confirmed following an internal appeal against the dismissal. The reason given for the dismissal and the rejection of the appeal was the removal of items of a client’s property without permission from the client.
26. At the tribunal hearing the respondent sought to justify the dismissal on the basis of the removal of the heating oil alone, conduct which had been admitted by the claimants. No finding was sought in respect of the oil tank or burner and accordingly it is not necessary to record the tribunal’s findings in this regard. It is understood that the matter remains under investigation by the police.
27. The tribunal finds that, as a company providing security for empty properties, it is absolutely vital from a commercial perspective that the respondent is able to offer clients an assurance that nothing will be removed from any property by the respondent’s employees without the client’s consent. In circumstances where it is not possible to obtain consent prior to removing the item from the client’s premises, it is vital that the client is informed of the removal and the reasons for it at the earliest possible moment in time. A failure to observe this procedure could well lead to the client losing confidence and terminating its contract with the respondent.
28. Both claimants accept that they were well aware of the critical importance of the respondent’s policy in respect of removal of items from properties which they were securing. The claimant’s each accept that they had been told to remove nothing from a property without obtaining consent, “not even the dirt from the ground” as the respondent’s general manager put it. The tribunal finds that the claimants were both very well aware of the rule that nothing should be taken from a client’s site without securing authorisation for doing so.
29. The explanation offered by the claimants was that they removed the oil for health and safety reasons. They were concerned that the leaking oil presented a fire hazard. They removed the oil canisters from the garden of the property, even ones which they did not need to fill with oil, because of concerns that the canisters not only represented an obstacle in the garden but also because of the risk that children might set them alight. It was said that even the fumes in an empty canister could present a fire risk. The claimants relied extensively on extracts from the respondent’s health and safety policy to justify their actions.
30. The tribunal rejects the claimants’ suggestion that concern about health and safety was the motivation for removing oil from the Property. In reaching this conclusion, the tribunal finds it to be significant that the claimants failed to take all reasonable steps to inform the respondent promptly about what they had done and/or what they were proposing to do in respect of the oil.
31. The claimants said that, on the afternoon of Friday 9 January 2009, Mr Joyce had sought to contact the respondent’s operation manager to inform him of the problem with the oil and the proposed course of action.
It was claimed that Mr Joyce had made one call to the operation manager’s mobile phone but that the manager’s phone was engaged and Mr Joyce could not get through to him. Mr Joyce did not leave a message for the operation manager on the answer phone.
Following his unsuccessful attempt to speak to the manager on the mobile phone, Mr Joyce claimed that he then called the respondent’s office. Again, the line was engaged.
He made no further attempts to contact the respondent and simply went on to the next job with Mr McConville, before finishing work for the weekend later that evening.
32. On the claimants’ own account, neither of them would have informed the respondent about the removal of the oil from the Property until Monday morning but for the operation manager’s own successful efforts to contact them.
33. On the claimants’ account, they intended to leave the oil stored in the back of the van over the week-end. The van would have been parked beside Mr Joyce’s house.
34. The tribunal finds that the claimants knowingly breached the respondent’s rules on removing items without authorisation from a client’s property. On a previous occasion Mr Joyce had contacted the respondent to seek authorisation for the removal of certain items from another property for safekeeping. No adequate reason was offered to the tribunal as to why he had not done so on this occasion.
35. On the evidence the tribunal heard, it is not satisfied that the claimants made any or any adequate attempt to contact the respondent on 9 January to inform it of the removal of the oil from the Property. On the balance of probabilities, the tribunal is not satisfied that Mr Joyce made either of the phone calls he claimed to have made to the operations manager and also to the respondent’s office.
36. No adequate explanation has been offered by the claimants as to why, if indeed the first attempts to contact the respondent on 9 January were frustrated by an engaged telephone line, neither of them sought to persist further in their efforts to inform the respondent about a matter which they knew was of great importance. They were aware that by removing oil from the Property without prior authorisation, they found themselves in breach of a very important rule at work. Yet the claimants casually departed work for the weekend without making any repeated attempts to contact the respondent whether by telephone or otherwise.
37. The claimants’ failure to make persistent attempts to contact the respondent before work finished for the weekend is all the more surprising given the health and safety justification offered by the claimants for their removal of the oil from the Property. If Mr Joyce is correct and the fumes from largely empty oil canisters might represent a fire risk if ignited, so too might the fumes and/or contents of a largely emptied oil tank. Yet neither of the claimants demonstrated any sense of urgency about informing the respondent of the potential fire risk presented by the broken oil tank which, on the claimants’ case, remained at the Property after their departure.
38. The tribunal has been invited to consider the fairness of one aspect of the dismissal procedure applied by the respondent. It is said that there were deficiencies in the letter which was sent to the claimants to invite them to the initial disciplinary meeting on 16 January 2009. In this context it is necessary to record the following:-
· By separate letters which were written in identical terms and both dated 13th January 2009, the claimants were, “asked to attend a disciplinary hearing at the Belfast Depot on 16 January 09”.
· It was stated in the letters that, “The company would like to discuss issues relating to the performance of your contract of employment, in particular allegation of removing items from [the Property]. This is a disciplinary matter and you are entitled to have a work colleague or Union representative with you when you attend the meeting...”.
· The letters do not mention that dismissal will be a disciplinary sanction which is to be under consideration at the meeting.
Law
39. The tribunal has considered Part XI of The Employment Rights (NI) Order 1996 [“the E.R.O.”] which sets out the statutory provisions governing unfair dismissal.
40. An employee has a right not to be unfairly dismissed [Art.126].
41. In determining whether a dismissal is fair or unfair, it is for the employer to show the reason for the dismissal and that the reason is a permissible one under the E.R.O. The conduct of an employee is such a permissible reason [Art.130].
42. Where the employer has demonstrated that the reason for the dismissal is a permissible reason:-
“...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.” [Art.130(4)]
43. In his submissions on behalf of the claimants, Mr Moore referred the tribunal to three well-known cases –
British Homes Stores v Burchell [1978] ICR 303
Iceland Frozen Foods v Jones [1982] IRLR 439
Foley v Post Office [2000] IRLR 827
Mr Sonaike did not refer the tribunal to any specific authorities on behalf of the respondent.
44. The claimants were dismissed on the ground of misconduct by reason of removing the oil from the Property without prior authorisation. In British Home Stores v Burchell, Arnold J addressed the correct approach to cases of suspected misconduct:
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of 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 mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage 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.” [p304]
45. The cumulative effect of the decisions in Iceland Frozen Foods v Jones, and Post Office v Foley is that:-
· The tribunal must consider whether the respondent’s decision to dismiss the claimants fell within the band of reasonable responses to the claimants’ conduct which a reasonable employer could adopt.
· In considering this question, the tribunal must not approach the issue of reasonableness or unreasonableness of the dismissal by reference to what members of the tribunal might have done had they been the employer. The issue for the tribunal to determine is whether the respondent’s decision to dismiss fell within the band of reasonable responses to the claimants’ conduct which a reasonable employer could adopt.
46. Under the Employment (Northern Ireland) Order 2003 [“E.O.”] an employer is obliged to follow certain statutory dispute resolution procedures when it is considering taking disciplinary action against an employee.
Schedule 1 of the E.O. sets out the standard procedure to be followed by an employer.
Step 1 provides as follows:
“Step 1: statement of grounds for action and invitation to meeting
1(1) The employer must set out in writing the employee’s alleged conduct, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter”
47. The step 1 letters dated 13 January 2009 which were sent by the respondent to the claimants did not mention that dismissal was a disciplinary sanction which was under consideration. In this context, Mr Moore has invited the tribunal to consider the case of Zimmer Limited v Brezan [2008] UKEAT/0294/08.
48. In Zimmer, the Employment Appeal Tribunal [“EAT”] approved and applied comments made in an earlier EAT case, Alexander v Brigden Enterprises [2006] ICR 1277. At paragraph 34 and 38 of Alexander the EAT said as follows:-
“34. First, the purpose of these statutory procedures is to seek to prevent the matter going to an Employment Tribunal if possible by providing the opportunity for differences to be resolved internally at an earlier stage: see the observations in the Canary Wharf case. Hence the reason why these procedures apply at the stage when dismissals are still only proposed and before they have taken effect. However, to achieve that purpose the information to be provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss...
38. Taking these considerations into account, in our view, the proper analysis of the employer’s obligation is as follows. At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting. At that stage, in our view, the statement need do more than state the issue in broad terms. We agree with Mr Barnett that at step one the employee simply needs to be told that he is at risk of dismissal and why” [emphasis added].
49. In Zimmer the EAT accepted that, “...on the facts of a particular case it is open to a tribunal to consider that the Step 1 letter, and information provided with it, can be regarded, in the individual circumstances of the case before them, as sufficient to communicate the risk to the employee of dismissal, albeit the letter itself does not expressly say that.” [para.25]
50. Article 130A of the E.R.O. provides that a failure by an employer to comply with the statutory dismissal procedures shall make the dismissal automatically unfair. In such circumstances Article 154 provides that, save where the tribunal considers that it would result in injustice to the employer, a minimum of four weeks pay shall apply to the basic award.
51. Under Article 157(1) of the E.R.O.: “the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”
52. In Polkey v AE Dayton Services Ltd [1987] IRLR 503, the House of Lords considered the effect of procedural unfairness on the compensatory element of an award in respect of a procedurally unfair dismissal which is otherwise justified. At paragraph 28 Lord Bridge stated:
“If it is held that taking the appropriate steps which the employer failed to take before dismissing the employee would not have affected the outcome, this will often lead to the result that the employee though unfairly dismissed, will recover no compensation, or, in the case of redundancy, no compensation in excess of his redundancy payment.”
53. Article 156(2) empowers a tribunal to reduce a basic award for unfair dismissal where it considers it just and equitable to do so by reason of a claimant’s conduct.
Conclusion
54. The tribunal finds that the claimants were unfairly dismissed pursuant to Article 130A(1) of the E.R.O. The Step 1 letters sent to the claimants failed to meet the requirements of the standard dismissal and disciplinary procedure set out in schedule 1 of the E.O. Not only did the letters not explicitly refer to the possibility of dismissal, but they did not even incorporate reference to any disciplinary code or other applicable procedure from which the claimants could have ascertained that dismissal was a possibility.
55. The requirement formally to inform an employee that dismissal is a possibility is an important one. It may impact upon an employee’s approach and preparation for a disciplinary meeting, including the issue of which person, if any, the employee chooses to accompany them to the meeting. The mere fact that the dismissal may have been justified in any event does not absolve an employer from its duty to comply with the statutory procedures.
56. The respondent has a human resources services manager who dealt with the claimants’ appeals against dismissal. It is unfortunate that the Step 1 letters were not vetted thoroughly for compliance with the statutory procedures prior to the letters being sent to the claimants. The tribunal has considered whether or not it would be just and equitable to make a reduction in the basic award by reason of the claimants’ conduct. The tribunal does not consider it just and equitable to do so. In all the circumstances of the case the tribunal makes a full basic award to each claimant.
57. The basic award is calculated in accordance with the provisions of Part XI of the E.R.O.
Mr Joyce
Basic salary = £15,600 p.a.
Basic salary = £300 p.w.
Total years service (including age adjustment for years post 41) = 7
Basic award = £2,100
Mr McConville
Basic salary = £14,268 p.a.
Basic salary = £274 p.w.
Total years service = 5
Basic award = £1,370
58. No compensatory award is made. The tribunal is satisfied that had the statutory disciplinary procedure been complied with the outcome would have been the same.
59. The significance and vital importance of the instruction that nothing should be removed from a property without prior authorisation (or, by implication, without notifying and explaining the removal at the earliest possible moment), was well known and acknowledged by the claimants. It was a policy that Mr Joyce had complied with on at least one previous occasion. Regrettably for all parties, it was a policy that was effectively ignored by the claimants on 9 January 2009.
60. The potentially serious and adverse commercial consequences for the respondent’s reputation and relationship with its client was manifest in the anxious contact made by BCHA to the respondent. The tribunal finds that, in all the circumstances of the case, the respondent’s decision to dismiss the claimants fell within the band of reasonable responses to the claimants’ conduct which a reasonable employer could adopt. Consequently the tribunal makes no compensatory award.
61. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 14 September 2009, Belfast.
Date decision recorded in register and issued to parties: