Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/94_09IT.html
Cite as: [2009] NIIT 94_09IT, [2009] NIIT 94_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 00094/09

CLAIMANT: Brendan Byrne

RESPONDENT: Norbrook Laboratories Ltd

DECISION

The unanimous decision of this Tribunal is that the claimant was not unfairly dismissed and his claim is hereby dismissed.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Members: Mr J Patterson

Mr P Killen

Appearances:

The claimant was represented by Mr Roger Dowd, Barrister at Law, instructed by The Elliott-Trainor Partnership.

The respondent was represented by Mr J Algazy, Barrister-at-Law, instructed by Berkeley White, Solicitors.

1. Issues

The Issues for this Tribunal are as follows:-

(i) Did the respondent act within a range of reasonable responses in treating the claimant’s behaviour as falling within the category of gross misconduct and such as in all the circumstances of the case to warrant dismissal?

(ii) Were the proper procedures followed in the dismissal process?

(iii) Was dismissal fair in all the circumstances of the case?

(iv) If not should an order for reinstatement be made?

(v) If the claimant was unfairly dismissed what compensation if any is payable to him?

2. Sources of Evidence

The Tribunal heard evidence by way of oral testimony from Ms Derbhla Morrow, Mr Sean Canavan, Ms Rachel McConnell, Ms Ruth Cartmill and Mr Martin Logan for the respondent and from the claimant and Mrs Virginia Byrne.

The Tribunal was furnished with two bundles of documents by the respondent and considered those documents as referred to by the parties during the course of the hearing together with the submissions of both parties.

3. Contentions of the parties and findings of fact

(1) Norbrook Laboratories Limited is a pharmaceutical company and a large employer operating from two sites in Newry, one in Carnbane and the other on the Armagh Road.

(1)

(2) The claimant was employed by the respondent as a line foreman in packaging on the Carnbane site. His immediate line manager was Derbhla Morrow, the assistant packaging manager who in turn was managed by Sean Canavan, the group packaging manager.

(2)

(3) The claimant commenced employment with the respondent on the 22 January 2001 at age 50. He was promoted after a few years from his post as a packaging operative to that of assistant line leader and later again to the post of line leader, a post he occupied at all times material to these proceedings.

(3)

(4) The claimant was a very good employee who achieved consistently positive appraisals. He was regarded as a hard and dedicated worker about whom there were no complaints and he was popular with those he managed. He met Mr Canavan from time to time socially in connection with the football club of which they were both members and he regarded Mr Canavan as a friend.

(4)

(5) Mrs Virginia Byrne, the claimant’s wife also worked for the respondent as a packaging operative. In May 2008 both Mrs Byrne and her line leader Ms Mary Killen were reprimanded by Mr Canavan for drinking tea in the ladies toilets during working time. Mrs Byrne at all times admits that she was in the wrong and accepts that the reprimand was deserved. The claimant has no issue with the manner in which this was handled or with the outcome.

(5)

(6) On the morning of the 10 September 2008, Ms Morrow was approached by the line leader in charge of one of the operating ,line six who requested replacements for three of her operatives who were absent on that morning. This was not an unusual occurrence and Ms Morrow approached Mr Canavan who in turn advised her to remove a girl from line five and a boy from line eight.

(6)

(7) The claimant was approached to release operatives in the past and did so but it transpired that he preferred to have this undertaken by management as staff were more likely to comply with such a request from management without question.

(7)

(8) Ms Morrow approached the claimant as line leader in charge of line 8, on the morning of September 10 asking him to release one operative and it is common case that he refused to do so and in so refusing that he used foul language. However there are differing accounts of what occurred and what words were exchanged between the claimant and Ms Morrow.

(8)

(9) It is the respondent's case that events unfolded as follows:-

(9)

Ms Morrow approached the claimant explaining her need for somebody to be moved from his line and asking him to identify a male operative to be moved. The claimant refused explaining that he could not afford to lose somebody because he was too busy. He said ”I don’t know what Sean expects me to do”. Ms Morrow replied ”you have to send somebody down. Sean knows that somebody is being moved from your line” to which the claimant replied ”No, I will not be sending anybody down. Tell Sean to come and do it himself”. At this point Ms Morrow reminded the claimant that “Sean is the boss” to which the claimant replied “I don’t f…ing care. I couldn’t f...ing care less”. He then threw his hands in the air, turned his back on Ms Morrow and walked back down the line.

(10) It is the claimant’s case that events unfolded as follows:-

(10)

The claimant was returning from the labelling room carrying heavy rolls of labels when approached by Ms Morrow asking him to release somebody from his line. He refused to do so saying that he couldn’t afford to send somebody from his line because he had a big run on and needed all his workers. Ms Morrow replied ”you will do as you are told, that is orders from Sean Canavan”. At this point the claimant turned to walk away, to put the rolls of labels down and start work. Ms Morrow said ”don’t you walk away from me, I am going to report you to Sean Canavan” to which the claimant replied ”f… you and f… Sean Canavan”. The claimant denies throwing his hands in the air.

(11) In deciding which account to rely upon the tribunal accept the evidence of Ms Morrow for the following reasons:

(11)

There is medical evidence describing the claimant as a poor historian and the Tribunal find this to be the case. The claimant’s evidence differs from the account he subsequently gave at his interview with Sean Canavan during which he said that he would prefer if Sean or “one of the white coats” [Sean, Derbhla or Tommy Rodgers] did it. The claimant’s evidence throughout is inconsistent on a number of points and the claimant has departed from his evidence on more than one occasion during the course of the hearing. The tribunal find that the claimant’s recollection of events including important events is poor. By way of example he was unable to recall the timing of his knee surgery and in particular couldn’t recall whether it was before or after Christmas 2008 when in fact it was carried out in May 2009.

(12) Notwithstanding the differing accounts of the incident it is common case that the claimant refused to carry out a lawful instruction and that he used foul language. The tribunal find that the use of foul language was common place on the factory floor and was used by Ms Morrow and Mr Canavan despite their evidence to the contrary. The tribunal find Mrs Byrne to be a credible witness and accept her evidence in preference to that of Ms Morrow and Mr Canavan on this point.

(12)

(13) Ms Morrow was shocked “gobsmacked” following her exchange with the claimant and she reported the matter to Mr Canavan in a meeting lasting 2 to 3 minutes. Mr Canavan asked Ms Morrow to inform Ms Rachel McConnell of human resources of the incident which she did by way of email. Mr Canavan went to find the claimant. The claimant was not at his line. Mr Canavan moved an operative from the line himself and left a message for the claimant to call to his office on his return.

(13)

(14) The claimant was not surprised to hear that Mr Canavan wanted to speak to him and he reported to Mr Canavan’s office some 15 minutes later. The claimant described himself at this time as being disgusted with his behaviour. He attributes his behaviour to the fact that he was suffering from extreme pain in his knee for which he was taking painkillers whilst awaiting surgery. He was not sleeping well and was generally grumpy. He did not mention this to Mr Canavan or to anybody in the respondent company at this time and did not offer it as an explanation for his conduct.

(14)

(15) Despite the fact the claimant describes himself consistently as being disgusted with himself following the incident with Ms Morrow he made no effort to apologise for his behaviour. The tribunal do not accept the claimant's evidence that his failure to apologise was due to the fact that he had no opportunity to apologise. He has accepted in his evidence that he could have sought out Ms Morrow. The Tribunal find based upon the claimant’s own evidence that he believed that he had nothing to apologise for and find this to be the reason why he did not apologise.

(16) When the claimant reported to Sean Canavan, he found Mr Canavan to be very agitated and the claimant admits to being agitated himself.

(16)

(17) An altercation ensued between the claimant and Mr Canavan during which the claimant was standing and Mr Canavan was seated. Mr Canavan asked the claimant for an explanation as to why he spoke to Ms Morrow as he did. The claimant replied in aggressive terms and indicated to Mr Canavan that if he required to move somebody from his line in the future he could do it himself. Mr Canavan told the claimant that he was being referred to human resources [HR]. The claimant replied that he was happy to go to HR and that he had a number of matters to bring to their attention regarding incidences on the factory floor that had been dealt with inconsistently or not at all. The claimant referred in particular to the incident involving his wife and described at paragraph 3(5) above. He did so notwithstanding his evidence that he had no complaint with the manner in which his wife had been dealt with.

(17)

(18) The Tribunal find the claimant's attitude at this meeting with Mr Canavan to be inconsistent with his description of being disgusted with himself and find it to be consistent with his stated belief that he had nothing to apologise for.

(19) Mr Canavan describes himself as feeling overpowered during his meeting with the claimant. The Tribunal find however in reliance on Mr Canavan’s own evidence that he was not intimidated by the claimant. He was nonetheless angered by the situation that had developed and took exception to the claimant's threats to report management to HR as described at paragraph 17 above and to his statement that if operatives were to be moved from his line in the future that Mr Canavan could do it himself. Mr Canavan regarded this as an indication that the claimant showed no remorse and that it was his intention to refuse to carry out instructions from management in the future.

(20) Following the meeting with Mr Canavan the claimant returned to his work. In an email to Rachel McConnell, the human resources co-ordinator Mr Canavan requested that an investigation into the incident be carried out in the following terms:-

(20)

"Rachel can you please arrange for an investigation to be carried out this afternoon with Brendan Byrne for not carrying out a simple order at the request of his line manager. He refused to carry out a task which was instructed to him by Dearbhla Morrow and then again by myself after I had spoken to him".

(21) An investigation panel was set up in accordance with the company's disciplinary procedure.

The Disciplinary Procedure

(22) It may be useful at this point to recite the company disciplinary procedure in so far as it provides for an investigation to be carried out:-

2.1 Investigation

Investigation is a neutral fact finding process. It may be initiated in response to a report or a suspicion that behaviour capable of resulting in disciplinary action has been committed. When a suspected disciplinary matter arises the Employee's supervisor, or manager, or a member of the Human Resources Department will be appointed as soon as possible to establish the facts promptly before recollections fade and, where appropriate to obtain statements or interview any available witnesses. A written record will be kept for later reference. A member of the Human Resources Department will be in attendance to take notes of the investigation. Having investigated all the facts the appointed person will decide whether to drop the matter, arrange informal coaching or arrange for the matter to be dealt with under the disciplinary procedure. The Human Resources Department will be kept informed of any potential disciplinary matters or decisions made by the appointed person. An investigation into the facts will not extend into a disciplinary hearing. If it becomes clear during the course of the investigation that formal disciplinary action is needed then the interview will be terminated and a formal hearing convened at which the employee will have the right to be accompanied.

Ms Rachel McConnell and Mr Tommy Rodgers the assistant packaging manager were appointed to carry out the investigation.

The Investigation

(23) The following interviews were conducted by Mr Rodgers and Ms McConnell for the purposes of the investigation:-

The claimant was interviewed on 10 September 2008 from 3.45pm to 3.55pm.

Ms Morrow was interviewed on the 11 September 2008 from 1.30pm to 1.50pm.

Mr Canavan was interviewed on the 11 September 2008 from 5.00pm until 5.20 pm.

(24) At the commencement of the claimant’s interview the claimant was addressed by Ms Mc Connell in the following terms:-

"Brendan, the reason as to why you are here today is regarding an alleged incident that occurred this morning where it is alleged that you deliberately refused to carry out lawful requests by two members of management."

During the course of the interview allegations were raised that the claimant was rude and abrupt to Dearbhla or that he used abusive language toward Dearbhla. The claimant admitted to both refusing to carrying out lawful instructions and to the use of foul language.

(25) By letter dated the 11 September 2008, the claimant was informed that "following on from the investigation regarding an alleged incident that occurred on the 10th September 2008, were (sic) it is alleged that you deliberately refused to carry out lawful requests by two members of management", the Company's formal disciplinary procedure was being invoked and could result in dismissal or other disciplinary action should it be decided "that your actions constituted serious or gross misconduct".

(25)

(26) The Tribunal find that this letter was issued to the claimant prior to the completion of the interviews with Ms Morrow and Mr Canavan. The Tribunal base this finding on the evidence of timings generally and on the evidence of Martin Logan to the effect that he is reasonably sure that he was approached by HR to conduct the disciplinary hearing prior to the completion of the investigation.

(26)

(27) The Tribunal find this to be in breach of the rules as set down in the company handbook at paragraph 6.2.1 in that the decision was taken that the matter was to be dealt with under the formal disciplinary procedure before all the facts had been investigated i.e. before Sean Canavan or Derbhla Morrow were interviewed.

(27)However in circumstances where the allegations were admitted by the claimant the Tribunal find that on the balance of probabilities this breach did not have had any effect on the outcome.

(28) The Tribunal find that the investigation did not extend into the disciplinary hearing and so was not in contravention of the provisions of paragraph 6.2.1 in this regard as alleged by the claimant. The Tribunal base this finding on the evidence of Ms Cartmill as to her interpretation of the relevant provision of paragraph 6.2.1 which provides:-

(28)

"An investigation into the facts will not extend into a disciplinary hearing. If it becomes clear during the course of an investigation that formal disciplinary action is needed then the interview will be terminated and a formal hearing convened..."

It is Ms Cartmill's evidence that the reference to the interview being terminated is a reference to the interview with the claimant and not a reference to all interviews forming part of the investigation. The Tribunal accept this interpretation as being consistent with the reference to " ..the interview" as opposed to the "interviews" and to the position taken by the respondent that the claimant had admitted to the charge of deliberately refusing to carry out lawful instructions by two members of management allowing them to conclude under the provisions of 6.2.1 that formal disciplinary action was needed.

The Disciplinary Hearing

(29) The claimant was informed in the letter of the 11 September that he was required to attend a disciplinary hearing at 10.00am the following morning to answer the allegation "that he deliberately refused to carry out lawful requests by two members of management", that the notes of the investigation would be made available to him prior to the hearing, of his right to be accompanied and that the disciplinary hearing was to be conducted by Ruth Cartmill of Human Resources and Martin Logan, Site Operations Manager at the Armagh Road site.

(30) The claimant had in the past worked for Mr Logan for a period of 18 months to 2 years. It was Mr Logan's opinion that the claimant had been promoted beyond his ability and that his success at work had been due in the main to being in the right place at the right time. The Tribunal find this view to be personal to Mr Logan and is inconsistent with all reports and appraisals completed in respect of the claimant throughout his career at the respondent company.

(31) The claimant walked with Mr Tommy Rogers to the disciplinary hearing and it is his evidence that he apologised to Mr Rodgers for his behaviour and discussed his knee complaint. He attended for the disciplinary hearing shortly before 10.00am on the morning of the 12^th. He was handed notes of the investigation by Ruth Cartmill and was reminded of his right to be accompanied. He confirmed that he did not wish to be accompanied.

(31)

(32) There is a dispute between the parties as to whether Ms Cartmill gave the claimant all notes generated by the investigation or just the notes recording his own interview. The claimant alleges that he was only given the notes of his own interview. It is Ruth Cartmill's evidence and the respondents case that the claimant was given all notes.

(32)

(33) The notes of the claimant's own interview are signed by the claimant on all pages. The other interview notes bear no signatures.

(33)

(34) The tribunal are satisfied that the claimant signed his own notes as a record that they were a true reflection of his interview rather than as an acknowledgement of receipt. The tribunal have taken into account the fact that all pages were signed a fact they believe to be consistent with the signature being an acknowledgement of content rather than of receipt.

(35) The tribunal finds that the claimant was given only a copy of the notes of his own interview and was not given a copy of any other investigatory notes or paperwork. The Tribunal base their finding on the record of the disciplinary hearing as recorded by Ms Cartmill. Ms Cartmill specifically questioned the claimant in the following terms:-

(35)

"Brendan you have recieved the notes of your investigation and you have signed them “are you happy with the content of these notes?"

The Tribunal find it material that no reference was made by Ms Cartmill to notes other than those that had been signed by the claimant. The claimant was not asked whether he had been given all notes. Furthermore although the tribunal find the claimant to be inconsistent in his evidence on many issues, he consistently and adamantly denied receiving all notes and the Tribunal find this to be the case.

(36) Not withstanding the fact that the Claimant was not provided with all notes the Tribunal find, based upon his own evidence that the claimant was not taken by surprise by any allegations put to him during the course of the disciplinary procedures. As a consequence the Tribunal find that although the fact that he was not furnished with all relevant paperwork was in breach of the respondent's own procedures and the Labour Relations Agency code of practice, we also find based upon the claimant’s evidence that it contained no surprises and so on the balance of probabilities that it made no difference to the outcome.

(37) The claimant was not given or referred to a copy of the company handbook setting out the company disciplinary policy, procedures and sanctions at any time material to the investigation or disciplinary hearing. Notwithstanding the fact that the claimant was provided with a copy of the company handbook at the commencement of his employment, the Tribunal find that the claimant was not familiar with the procedures as provided for in the handbook having had no reason to consult it during the course of his employment. The Tribunal find this to be contrary to best practice but not a fatal flaw in this case because the claimant admitted the allegations and furthermore having been informed of his right to be accompanied chose not to be and having been informed of his right to appeal chose not to lodge an appeal.

(38) In the course of the investigation Mr Logan questioned the claimant referring to two allegations:- "firstly, deliberate refusal to carry out a reasonable and lawful request from management and acting in a threatening and aggressive manner". The claimant was informed by Mr Logan that “both are gross misconduct”. This occurred notwithstanding the fact that only one allegation, that of refusing to carry out lawful instructions from management was mentioned in the request by Mr Canavan for an investigation panel to be set up, only one was investigated, only one was mentioned to the claimant in the invitation letter of the 11 September, only one was mentioned in the introduction to the investigatory interview and the alleged misconduct could have fallen within the definition of either serious or gross misconduct in accordance with the following provisions of the company handbook:-

(39) Serious misconduct is described within the handbook as including:-

(39)

"Unruly behaviour not of a violent or threatening nature, insubordination or disobedience, but not to the extent where such disobedience leads to the inability of the instructing person to carry out their duties or puts the Company, its products or Employees at risk".

Gross misconduct is described within the handbook as including:-

"Unruly behaviour of a serious behaviour;

Acting in a threatening and aggressive manner which may include physical or verbal assault.

Serious insubordination.

All deliberate refusals to carry out lawful reasonable requests from Management".

(40) The allegation (of acting in a threatening and aggressive manner) was introduced by Mr Logan for the first time towards the conclusion of the disciplinary hearing. The Tribunal find that on the balance of probabilities that this was a reference by Mr Logan to both the claimant's altercation with Ms Morrow where it was put to him that "Other peoples perception of what was going on was that you were being aggressive" and to the claimants interview with Sean Canavan where it was put to him that he was "acting in a threatening and aggressive manner". Derbhla Morrow in her interview during the course of the investigation referred to the claimant in terms of being loud, rude and insulting. Sean Canavan in his interview recalls that Derbhla Morrow described the claimant as abusive and further considered his behaviour to be inappropriate. During the course of the claimant's own interview it was put to him by Rachel McConnell that he used abusive language towards Ms Morrow and although this was not accepted by him, he did admit to the use of foul language. However at no point prior to the disciplinary hearing was the allegation of acting in a threatening and aggressive put to the claimant.

(41) The Tribunal find that the introduction of the allegation of threatening and aggressive behaviour without prior notice or mention was contrary to both the company and the statutory requirements and the respondent presented no compelling evidence of other people’s perceptions of the claimant's behaviour in relation to the incident. It is noteworthy that "threatening and aggressive" fit squarely with the language of the handbook as it refers to gross misconduct and find that on the balance of probabilities that Mr Logan had this in mind when using those words.

(42) It is common case that the timings recorded on the notes recording the disciplinary hearing are incorrect to the extent that they consistently record that events occurred two hours after they in fact occurred. It is of concern to the tribunal that such important documents are consistently incorrect in this regard particularly so given the serious nature of the matters under consideration and the size of and the resources available to the respondent.

(43) It is the respondents case that the incorrect timing were recited due to a typographical error and that the hearing commenced at 10.05am, adjourned at 10.25am following the claimant’s interview, reconvened at 10.50am and ended following the dismissal of the claimant at 10.55am. The Tribunal do not accept that the incorrect timings were recited due to typographical error given the consistency and repetition of the error. This reflects very poorly on the respondent and its human resources department. However the Tribunal are unable to find any explanation for the inaccuracy.

(44) The claimant alleges that the hearing commenced in or around 10.05am, adjourned for an absolute maximum of ten minutes following which the claimant was recalled and dismissed. He was accompanied off the premises by Ruth Cartmill leaving between 10.20am and 10.30am. The tribunal accept the claimant's evidence in this regard for the following reasons:-

(44)

(i) Virginia Byrne gave evidence which the tribunal accepts, that she was told by Sean Canavan between 10.40am and 10.45am that the claimant had been dismissed. She immediately contacted the claimant by telephone from Sean Canavan’s office. At this time the claimant was already at his home, some ten minutes drive from the factory.

(ii) Sean Canavan allowed Mrs Byrne to finish work to be with the claimant and the respondent’s records indicate that she was left work at 11.00am.

(iii) The Tribunal accept as compelling evidence the fact the respondent’s records indicate that the claimant was dismissed with effect from 10.30am on the 11 September 2008.

The Sanction

(45) The Company handbook at paragraph 8.5 outlines the factors to be taken into account when imposing sanctions and in so far as is relevant to this case provides:-

"When deciding whether a disciplinary penalty is appropriate and what form it should take the Manager will bear in mind the need to act reasonably in all the circumstances. Factors which might be relevant include, the extent to which standards have been breached, precedent, the employees general record, position, length of service and special circumstances which might make it appropriate to adjust the severity of the penalty".

The Tribunal in considering this provision interpret the factors stated as an example of a non-exhaustive list of the type of factors that might be taken into account so as to act reasonably.

(46) The Tribunal find from the evidence that it was open to Mr Logan to take the following mitigating factors into account:-

(i) The fact (which is not in contention) that the claimant was acting out of character on the morning of the incident.

(ii) During the course of the disciplinary hearing the claimant attributes his behaviour to the fact that he was in extreme pain due to a knee injury to the extent that he was on three painkillers a day, was waiting for an operation and his wife was finding it difficult to live with him. No enquiries or concerns were raised whatsoever in relation to this when it was raised by the claimant and it was not taken into account in imposing the sanction.

(iii) The fact (which is not in contention) that Ms Morrow indicated at all times that she would not have any difficulty working with the claimant.

(iv) The fact that the claimant sought to assure Martin Logan and Ruth Cartmill during the course of the disciplinary hearing that "it will never happen again”. In relation to this consideration, Mr Logan reminded the claimant that he did not deal directly with Ms Morrow subsequent to the incident at a time when he needed a fitter. Mr Logan regarded this as an indication of future reluctance on the part of the claimant to work with Ms Morrow and took the view that this was inconsistent with a normal working relationship.

(47) The decision was taken by Martin Logan to dismiss the claimant following deliberations lasting no more than ten minutes. In considering the sanction to be imposed Mr Logan's clear evidence is that he considered the offence which was admitted at all times by the claimant to amount to gross misconduct. He took into account the claimant’s length of service and good record but felt that the breach of standards was so high that dismissal was reasonable. No other mitigating factors and no lesser sanctions were taken into account. His decision was influenced by the claimant's failure to apologise for his behaviour and his belief that the claimant had escalated the situation in his interview with Mr Canavan. Mr Logan formed the view that the working relationship between the parties had been damaged. He was concerned that there would be a repetition of the incident despite the claimant's assurance to the contrary. He considered dismissal to be the appropriate sanction given the extent to which standards had been breached. He was of the opinion that the provisions of paragraph 8.5 were complied with on the basis of the information before him.

(48) The Tribunal heard evidence of other employees of the respondent being treated more leniently than the claimant. However in the absence of evidence of any employee being treated differently in the same or similar circumstances as the claimant the Tribunal find that there was no inconsistent treatment in this case.

(49) The Tribunal heard evidence of a grudge between the Claimant and Ms Morrow but do not find that evidence either compelling or substantiated.

(50) The claimant was dismissed by letter dated the 15 September 2008 in the following terms:-

(50)

”The panel believes, upon consideration of the facts before it, that your deliberate refusal to carry out a lawful and reasonable request from two members of management and your behaviour in acting in a threatening and aggressive manner constitutes gross misconduct. The foregoing has led the panel to conclude that you being dismissed is merited."

(51) Having found that the allegation of behaving in a threatening and aggressive manner was introduced for the first time by Martin Logan towards the end of the disciplinary hearing and was never the subject matter of an investigation the Tribunal find based on established law that had this been the only allegation under consideration the dismissal of the claimant would have been unfair.

(51)

(52) The Tribunal find from the evidence of Mr Logan that despite a number of failings in the investigatory and disciplinary procedures, that he would have decided to dismiss in any event based upon "the level of refusal" in circumstances where the claimant did not refute the allegation of refusal to carry out lawful instructions from management using foul language, did not apologise, escalated the situation in his interview with Mr Canavan and failed to persuade Mr Logan that the offence was a "one off". Mr Logan had formed a view that working relationships between the parties had been damaged and was steadfast in his view that the claimant was guilty of gross misconduct. On this alone and without any consideration of the second allegation of behaving in a threatening and aggressive manner it is the finding of this Tribunal that Mr Logan would have decided to dismiss.

(52)

(53) The claimant was informed in his letter of dismissal of his right to appeal the decision to dismiss in the following terms:-

(53)

"You have a right to appeal this decision. Any appeal must be in writing stating your grounds for appeal and should be sent to the Human Resources Department within five working days from this written notification of the outcome of your disciplinary hearing".

No appeal was lodged.

4. The Law

(1) The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) 1996 (the Order).

(2) At Article 130(1) of the Order it is stipulated that it is for the employer to show the reason (or if more than one the principal reason) for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).

(2)

(3) Based upon the evidence and the terms of the letter of dismissal the Tribunal find that the claimant was dismissed for gross misconduct in that he deliberately refused to carry out lawful instructions by two members of management and behaved in a threatening and aggressive manner. No argument has been advanced by either party to suggest that the fact that ultimately there were two allegations of gross misconduct, they should be treated as two separate reasons for dismissal within the meaning of Article 130(1) of the Order and so the Tribunal have not addressed the question of what the principal reason for dismissal was but have considered on the facts of the case that both refer to the same series of incidents and are so intertwined as to be regarded as one reason for dismissal.

(3)

(4) Article 130(2) of the Order provides that a reason relating to the conduct of an employee is a fair reason for dismissal. The Tribunal find that the claimant was dismissed for reason relating to his conduct which is a fair within the meaning of Article 130(2) of the Order. Having decided upon the reason for the dismissal, the Tribunal must now go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4) of the Order. Article 130(4) states that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administration of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

(b) shall be determined in accordance with the equity and substantial merits of the case.

(5) The Tribunal found the following case law of assistance in considering their decision:-

British Home Stores v Burchell [1980] ICR 303.

Iceland Frozen Foods Ltd v Jones [1983] ICR 303.[50].

Gerard Dobbin v Citybus Limited [2008]NICA 42 which approves the decisions in British Home Stores and Iceland Frozen Foods.

London Ambulance Service NHS Trust and Small [2009]EWCA Civ 220.

Hadjioannou (appellant) v Coral Cainos Ltd (respondents)

Louies (appellant) v Coventry Hood and Seating Co Tld [1990] IRLR 324

Sainsbury's Supermarkets Ltd (appellants) v Hitt (respondent)

The Tribunal also considered Harvey D1 Unfair Dismissal Part 7 [para 951 onwards].

(6) In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance–

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the [Employment Protection (Consolidation) Act 1978] is as follows:

(1) the starting point should always be the words of section 57(3) themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

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

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

(7) To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated –

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question …entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances 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 surmisable circumstance be a reasonable conclusion.”

(8) 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”.

(9) Following on from this case law the Tribunal find that the investigation carried out by the respondent into the allegation of deliberately refusing to carry out lawful instructions by two members of management was reasonable in circumstances where the claimant admitted that offence. The Tribunal have already found that the offence of acting in a threatening and aggressive manner was not investigated. The Tribunal also find that following the disciplinary hearing the respondent at the time of dismissal genuinely believed on reasonable grounds that the claimant was guilty of gross misconduct in that he admitted to deliberately refusing to carry out lawful reasonable requests from management.

(10) 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 must therefore decide in this case whether the decision to dismiss fell within a band of reasonable responses.

(11) Having considered and evaluated all the evidence and applicable case law as cited above the tribunal cannot conclude that no reasonable employer could have dismissed the claimant in all the circumstances of this case (including the size and administrative resources of the respondent), bearing in mind his admission of deliberately refusing to carry out lawful instructions from two managers in the manner in which he did, his behaviour in Mr Canavan's office some 15 minutes after the event and his failure to apologise.

The Statutory Procedures

(12) Article 130A of the Order provides as follows:—

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.

5. Conclusions

(1) The standard disciplinary procedure applies in this case. Consequently there are three steps which must be followed together with certain general requirements set out at part III of the Regulations. The three steps can be summarized as follows:-

The first is that the employer must set out in writing the employee’s alleged conduct or characteristics which led him to contemplate dismissal or disciplinary action against the employee.

The second stage consists of a meeting between the employer and the employee, which must take place before any disciplinary action is taken (unless the employer considers it appropriate to suspend the employee). That meeting must not take place until the employer has informed the employee of the basis for the disciplinary action, the employee has had a reasonable opportunity to consider his response and the employee must take all reasonable steps to attend the meeting. After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

The third step relates to an appeal and, as the claimant did not appeal the decision of the disciplinary panel, is not applicable here.

(2) In so far as the conduct complained of was that of the deliberately failing to carry out lawful instructions by management the Tribunal find that the Statutory procedures were complied with in that the three steps were followed, there was no delay, the location and timing of the meeting was reasonable and the meeting was conducted in a manner which enabled both parties to explain their cases. However it is the claimant’s contention that the procedures were not followed with regard to the allegation of acting in a threatening and aggressive manner and the Tribunal find this to be the case.

(3) The allegation of acting in a threatening and aggressive manner was introduced by Mr Logan for the first time towards the end of the disciplinary hearing and a charge in these terms was not put to the claimant and was not investigated. The claimant admitted to the use of foul language in refusing instruction which is different from “acting in a threatening and aggressive manner” and does by itself not fall into the category of gross misconduct. However as a Tribunal we are mindful of our obligation not to substitute our own views for those of the disciplinary panel and so find that Mr Logan’s decision to treat the claimant's refusal to carry out lawful requests from management as falling within the category of gross misconduct was within a band of reasonable responses based upon the information that he had before him at that time and that even without consideration of the offence of "acting in a threatening and aggressive manner" Mr Logan on the evidence before him would have decided to dismiss in any event. The Tribunal base this finding on Mr Logan’s own evidence that he considered the extent to which standards had been breached by the deliberate refusal was so serious as to merit dismissal. He was fortified in this view by the lack of an apology and his concern that it was not a "one off.”

(4) It is Martin Logan’s evidence that given the extent to which he regarded the standards to have been breached by the claimant that the only sanction was dismissal, the Tribunal find that the provisions of Article 130A(2) are applicable.

(5) The Tribunal have much sympathy for the claimant and consider his treatment by the respondent to be very harsh. However in reaching our unanimous decision we are mindful of the established case law as recited above reminding us of our own obligation not to substitute our own opinions as to what is reasonable but to consider whether the dismissal fell within a range of reasonable responses. As a Tribunal we find that dismissal fell within a range of reasonable responses in that there was a deliberate refusal by the claimant to carry out lawful instructions by two members of management in circumstances where a view was taken that the claimant did not show remorse for his behaviour and failed to satisfy the respondent that there would not be a repetition of the incident. The Tribunal is mindful of the fact that the respondent had also formed a view that working relationships had broken down and even though the Tribunal may not share that view we cannot say that it was an unreasonable view in all the circumstances of this case.

(6) Having decided that the claimant was not unfairly dismissed the Tribunal have not considered the matters of compensation or reinstatement or the evidence adduced in relation to them.

Chairman:

Date and place of hearing: 22-24 June 2009 7-9 September 2009, Belfast.

Date decision recorded in register and issued to parties: