Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/540_08.html
Cite as: [2009] NIIT 540_8IT, [2009] NIIT 540_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 00540/08 & 00539/08

CLAIMANTS: Anthony Coll

Colin Hefferon

RESPONDENT: Royal Mail Group PLC

DECISION

The unanimous decision of the tribunal is that neither claimant was unfairly dismissed and their claims to this Tribunal are therefore dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Dr C Ackah

Mr R Gunn

Appearances:

The claimants were represented by Mr Mulqueen, Barrister-at-Law instructed by O’Hare & Company Solicitors.

The respondent was represented by Mr D Dunlop, Barrister-at-Law instructed by Napier & Sons Solicitors.

The Claim

The claimants’ claimed that they were unfairly dismissed. The issues were narrowed during the hearing by agreement to the following:

As it was agreed that the reason for the dismissal related to the conduct of the claimants the issue for the tribunal was whether the dismissal of the claimants was fair at all and whether it was fair particularly in the context of the non-dismissal of Mr W who was a fellow employee charged with the same offence arising out of the same incident.

The claimants conceded through their counsel the following:

That the disciplinary charges they faced fell within the ambit of gross misconduct under their contract.

That the conclusion of misconduct reached was based on the evidence before the respondent.

That the respondent was entitled to reach a conclusion of misconduct on the evidence before it.

3. The claimants denied however that they were guilty of misconduct and the Chairman explained that the tribunal’s task was not to determine that issue but rather to determine whether the employer’s action in dismissing them fell within the band of reasonable responses for a reasonable employer to make.

Thus, as the sufficiency of the investigation was not under attack, nor was the finding that the misconduct could amount to gross misconduct and was capable of leading to summary dismissal, the focus of the tribunal was on the penalty imposed on the two claimants in comparison to the treatment of their colleague Mr W who was not dismissed. In other words the focus of the tribunal is on the consistency of the treatment meted to the claimants when compared to that meted out to Mr W.

Sources of Evidence

The tribunal heard evidence from Mr Buckley the manager in the respondent organisation who took the final decision to confirm the dismissal after he considered appeals from claimants. The tribunal also considered the documentation to which it was referred and the two large bundles of documents.

Findings of Fact

The tribunal found the following facts relevant to the issues before it and sets out, where necessary, the separate findings in relation to each of the two claimants as their cases were not in all respects the same.

Both claims centre on an incident which occurred on 28 October 2007 relating to the early morning shift for sorting mail.

The two claimants and Mr W were charged with offences which were categorised as gross misconduct and amounted to a charge that they each fraudulently claimed 2½ hours’ overtime for attendance at a “Scheduled Attendance” overtime shift. The shift for which they were rostered was from 3.45 am to 6.15 am and attracted a much higher hourly rate of pay.

The two claimants and Mr W were all employed by the respondent as operational postal grade employees, that is, they were postmen whose work involved sorting mail at the main Belfast sorting office and going out to deliver the mail.

10. As the offences amounted to gross misconduct the fact that the actual monetary sums involved were small, was not material to the issue of penalty in the tribunal’s view.

11. Dishonesty was regarded very seriously by the respondent because of the fact that they had to be able to trust their postmen with the mail as they often were on their own with the mail which could contain items of value.

12. The Royal Mail Conduct Code was stated to be ‘corrective’ rather than purely punitive, that is, the aim was to get employees to correct behaviour that fell short of the standard required rather than to simply punish employees for transgressions. For Mr Buckley therefore, it was of crucial importance as to whether or not an employee faced with misconduct appeared to see the error of his ways.

Mr Coll

13. Mr Coll was a postman of 19 years’ experience when he was summarily dismissed on 5 February 2008 for gross misconduct.

14. Mr Coll signed a Scheduled Attendance Sheet which recorded a shift which began at 3.45 am and ended at 6.45 am. Mr Coll was therefore due to be paid for a 2½ hour shift.

15. Mr Coll had actually arrived at work at 4.50 am when he said that he aimed to arrive at 4.15 am which he said was the time he was due to start the shift. He disputed that he had agreed with Mr Kennedy, the organiser of cover for the shift, that he should start at 3.45 am, that is, half an hour before the normal start time for that shift. On his own account therefore he was 35 minutes late for the shift and none of the times mentioned by him correspond with the 3.45 am start time attested to by his signature on the schedule attendance sheet which was used to calculate the pay due.

16. When confronted with the differing accounts from Mr Kennedy, his manager Mr Culbert and Mr Coll’s colleague Mr W, of the time he was due to start, Mr Coll stuck to this story that he had done nothing wrong as he was not due to start at 3.45 am but rather was due to start at 4.15 am albeit that he arrived at 4.50 am.

17. Mr Coll had a record of misconduct offences, the most recent and serious of which was a penalty of ‘suspended dismissal’ which was imposed on 5 December 2007 and was due to expire in December 2009. The suspended dismissal was therefore just over two months old at the time of the disciplinary process relevant to this case. The suspended dismissal is listed as the most serious penalty short of dismissal in the respondent’s Disciplinary Code although it states: “exceptionally in the case of suspended dismissal another penalty may be attached”.

18. Mr Buckley gave evidence that it was possible to combine a suspended dismissal with a transfer if someone was already on a suspended dismissal. However, in his experience of approximately 400 appeals over his 19 years in management, he had only imposed a second suspended dismissal with a transfer on one occasion when the employee in question was within a few days of the expiry of the initial suspended dismissal period. Mr Buckley confirmed the decision to dismiss Mr Coll in light primarily of the fact that a suspended dismissal was still live in relation to him.

Mr Hefferon

Mr Hefferon was a postman of 19 years’ experience when he was summarily dismissed on 5 February 2008 for gross misconduct having been charged with the same offence as Mr Coll namely claiming 2½ hours’ overtime attendance when he did not work that period. Mr Hefferon signed the scheduled attendance sheet which recorded a shift which began at 3.45 am and ended at 6.15 am and he was therefore due to be paid for a 2½ shift.

Mr Hefferon had actually arrived at work just after 4.30 am. On his account he said that he was due to arrive at work at 4.15 am and he disputed that he had agreed with Mr Kennedy the organiser of cover for the shift to start at 3.45 am, that is, half an hour before the normal start time for that shift.

On his own account therefore, he was 15 minutes late for the shift. The start time which he asserted did not correspond with the 3.45 am start time attested to by his signature on the claim form. If Mr Hefferon was late for his shift start time it was incumbent on him to write in the correct start time so that he would not be paid for hours that he was not in attendance. When Mr Hefferon was confronted with the differing accounts from Mr Kennedy, Mr Culbert and Mr W, of the time he was due to start, he stuck to his story that he had done nothing wrong as he said he was not due to start at 3.45 am but at 4.15 am. Mr Hefferon had a clear conduct record, was a good worker and was popular and there were absolutely no queries in relation to his conduct before.

22. In view of Mr Hefferon’s clear conduct record and length of service Mr Buckley agonised over the decision as to whether or not to dismiss him. Mr Buckley concluded that given that Mr Hefferon maintained that he had done nothing wrong it was not possible to say that he was clearly going to modify his behaviour in the future and Mr Buckley took the decision to confirm the dismissal for gross misconduct.

23. As Mr W was not dismissed his details were looked at by Mr Buckley in the context of deciding whether or not to confirm the dismissal of the two claimants.

24. Mr Buckley understood that Mr W had a long unblemished service record.

25. Mr W’s position contrasted with that of the two claimants in that when he was confronted with an allegation that he fraudulently tried to claim overtime for hours that he did not work he admitted that he was rostered to work from 3.45 am to 6.15 am but that he did not attend at work until 4.30am because he understood that the practice was that if you got the work done you would get paid for the time you were rostered whether or not you actually attended during those times. He did not dispute that he was due to start at 3.45 am and it was clear to Mr Buckley that Mr W acknowledged that what he had done was wrong and that he would not do it again.

The Law

26. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) 1996 (the ERO). At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130 (2). One of the potentially fair reasons for the dismissal relates to the conduct of the employee and both parties were in agreement that this was the reason for dismissal. The tribunal should then go on to consider whether the dismissal was fair or unfair in accordance with Article 130 (4) and for this purpose the tribunal looks at the equity and substantial merits of the case.

27. The tribunal needs to be satisfied that the employer acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to the respondent at the time. The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing. The tribunal’s task is to assess whether the employers actions in relation to penalty in this case fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. The appellate courts have made it clear that the tribunal should not seek to substitute its own view for that of the employer nor should it seek to retry the disciplinary hearing. This is clearly stated by the decision of the Northern Ireland Court of Appeal in the recent case of Dobbin –v- Citybus Limited (Ref HIG 7258 delivered 22/9/08).

28. The parties specifically referred the Tribunal to Harvey on Industrial Relations and Employment Law at Paragraph 1035-1043 which relates to consistency of treatment between employees charged with comparable offences.

29. The claimants’ counsel submitted that the principle enunciated in the case of Post Office –v- Fennell 1981 IRLR 221 meant that the claimants and Mr W should all have been treated the same. The principle is stated as follows by Brandon LJ:

“.. Employees who misbehave in much the same way should have meted out to them much the same punishment…”.

30. However, Harvey notes 4 points of caution and cites in detail the decision of the Court of Appeal in the case of Paul –v- East Surrey District Health Authority 1995 IRLR 305 which approved the comments made in the EAT decision of Hadjioannou –v- Coral Casinos Limited 1991 IRLR 352 which post-dated the Fennell decision. In Hadjioannou the EAT warned Tribunals against adopting a ‘tariff’ approach and stated that it was of the highest importance that flexibility should be retained when an employer had to deal with industrial misconduct. The following extract is of direct relevance to this case:

“An employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, …”.

31. At paragraph 1042 of Harvey it states:

“if an employer consciously distinguishes between two cases the dismissal can be successfully challenged only if there is no rational basis for the distinction made”.

32. The statutory disciplinary and dismissal procedures are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations and Employment (NI) Order 2003. Essentially there are three steps in the standard disciplinary and dismissal procedure. Step one involves the employer writing to the employee setting out the alleged disciplinary failing of the employee and inviting him to a disciplinary meeting to discuss the matter. Step 2 involves holding a meeting and notifying the employee of the decision and the right of appeal. Step 3 involves inviting the employee to an appeal meeting if the employee avails of the key process and notifying the employee of the appeal decision. All actions under the procedures must be conducted without unreasonable delay, the timing of and place of the meeting must be reasonable and the formal meetings must be carried out in a way which allows both employer and employee to explain their cases. Appeals should be decided by more senior managers than the original decision-maker as far as is reasonably practicable and the employee has the right to be accompanied by a colleague or a trade union official at all meetings.

Conclusions

33. Applying the law to the facts found the tribunal finds as follows:

There was no contention by either side that the statutory disciplinary and grievance procedures had not been followed. The tribunal finds that both sides adhered to the statutory procedures in this case.

Mr Coll

35. Mr Coll was on a suspended dismissal which had only been imposed just over two months previously and it was eminently reasonable for the employer to regard a further act of gross misconduct as sufficient reason for it to dismiss. Harvey makes it clear at paragraph 1035 that, in cases of gross misconduct, length of service, whilst it can be a factor, will not save an employee from dismissal.

36. Whilst Mr Coll had been charged with the same offence as Mr W arising out of the same incident, his circumstances could not be said to be comparable in terms of the mitigating factors and the fact that he was subject to a suspended dismissal penalty. Whilst it was a possibility for a second suspended dismissal to have been imposed, it was well within the band of reasonable responses for the respondent to decide not to do that particularly as it was rare to do so, in Mr Buckley’s experience, particularly given that the suspended dismissal had been imposed so short a period before the time in question.

37. The tribunal therefore has no hesitation in dismissing Mr Coll’s claim on the basis that his dismissal was well within the band of reasonable responses for a reasonable employer in the circumstances.

Mr Hefferon

38. In contrast with Mr Coll, the tribunal has considerable sympathy with Mr Hefferon. He was a man of long service with a clear conduct record and in the tribunal’s view, a different employer might have taken a different decision with Mr Hefferon than the respondent did in this case. However, it is not for the Tribunal to substitute its view for the employer but our task is to assess whether or not the employer in this case acted within the band of reasonable responses that a reasonable employer might adopt.

39. Mr Buckley clearly agonised over whether not to dismiss Mr Hefferon in view of his long unblemished record and indeed gave evidence that at the appeal hearing he left Mr Hefferon and his trade union official on their own for a few minutes hoping that Mr Hefferon would finally admit that he had done something wrong and thus enable Mr Buckley to impose a lesser sanction than dismissal. When Mr Hefferon stuck to his guns, Mr Buckley felt that anything short of dismissal would not be in accordance with the corrective aim of the Code as Mr Buckley could not say that Mr Hefferon would in the future change his conduct.

40. The difference between Mr Hefferon and Mr W was that Mr Hefferon did not admit that he had agreed to start work at 3.45 am and maintained that to the end despite the evidence adduced during the disciplinary process from Mr Kennedy, Mr Culbert and Mr W. Mr Hefferon in contrast to Mr W would not admit that he had done anything wrong. As Mr Buckley wrote in his decision and conclusion following an appeal hearing: “Had Mr Hefferon made an admission similar to Mr W then I would have been persuaded to reduce the penalty from dismissal to suspended dismissal. Mr Hefferon disregarded the opportunity to be open and honest at appeal and as such I believe that the penalty of dismissal was appropriate.”

41. There was much debate in the hearing and in submissions as regards whether Mr W had been honest or partially honest in contrast to the claimants. It was clear that all three men had been dishonest in relation to their claims for hours worked on this particular shift. The crux of the matter for the respondent was how Mr Hefferon would be in the future. Mr W admitted that he agreed to start at 3.45 am, he started at 4.30 am and got paid from 3.45 am. He expressed remorse and to that extent Mr W was honest in his reaction to the allegation when it was put to him. In summary therefore he was dishonest in the offence but he was not regarded by the respondent as dishonest in his reaction to the allegation as he expressed remorse.

42. The tribunal’s task is not to assess the strength or weakness in Mr W’s case. Our job is to decide whether the respondent, in the form of Mr Buckley, made a rational distinction between Mr W’s situation and Mr Hefferon’s when deciding to dismiss Mr Hefferon.

43. Again the tribunal had great sympathy with Mr Hefferon’s position and we are clear that he was not in the same category as Mr Coll. Another employer might have reached a different conclusion and might have put more weight on Mr Hefferon’s length of service and clear record. Our job however is not to substitute our view for the respondents. We are assessing whether or not the respondent had a rational basis for distinguishing between Mr Hefferon and Mr W and we conclude that it did have a rational basis for distinguishing between them and that the penalty of dismissal in this case was within the band of reasonable responses of a reasonable employer.

44. Mr Hefferon’s claim is therefore dismissed.

45. In summary the tribunal rejects the contention that simply because the three men were accused of fraudulent conduct arising out of the same incident that they must therefore all be treated the same. It was incumbent on the employer to treat each employee and his circumstances and mitigating factors separately in deciding on the penalty to be imposed. This is the flexibility referred to in the Paul case. When an allegation of inconsistent treatment of employees is made the employer need only show the tribunal that it had a rational basis for distinguishing between the employees when reaching its decision on penalty. In our view the employer clearly showed a rational basis (and indeed a good reason) for distinguishing between Mr Hefferon and Mr W. As Mr W admitted that what he had done was wrong and committed himself to not doing it in future whereas Mr Hefferon at no point admitted that what he had done was wrong and therefore the employer could not be sure that there would not be a repetition of the behaviour. Mr Coll’s position differed further from Mr W’s in that Mr Coll had a relatively fresh suspended dismissal hanging over him.

46. Both of the claimants’ claims are therefore dismissed.

Chairman:

Date and place of hearing: 28 & 29 April 2009, Belfast.

Date decision recorded in register and issued to parties:

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