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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bradley v Hugh Doherty & Michael Loughra... [2010] NIIT 00795_08IT (09 February 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/00795_08IT.html
Cite as: [2010] NIIT 00795_08IT, [2010] NIIT 795_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 795/08
CLAIMANT: Michael Alexander Bradley
RESPONDENT: Hugh Doherty & Michael Loughran t/a Riverside Oils
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed but that his conduct contributed 100% to that dismissal and therefore no compensation is awarded.
The claimant is entitled to £715.00 being £429.00 in respect of holiday pay and £286 in respect of unpaid wages.
Constitution of Tribunal:
Chairman: Ms F Oliver
Member: Mr E Grant
Appearances:
The claimant was represented by Mr Alan Stewart B.L., instructed by James Ballantine & Son, Solicitors.
The respondent was represented by Mr N Richards B.L., instructed by John J Mc Nally & Co., Solicitors.
Claim
1. The claimant’s claim was that he was unfairly dismissed for misconduct and that the dismissal was automatically unfair for failure to follow the statutory dismissal procedures. The respondent admitted failure to follow the statutory dismissal procedures but claimed that the dismissal was otherwise fair, that the claimant contributed 100% to his dismissal and further contended that a Polkey deduction was applicable in this case as dismissal would have followed anyway even if procedures had been followed.
Issues
2. The issues for the tribunal were as follows:
(i) As the respondent admitted that the claimant was unfairly dismissed by virtue of non-compliance with the dismissal procedures, the main issue for the tribunal was whether the circumstances were such that a finding of contributory fault was merited. If such a finding was merited the next issue for the tribunal was the amount of any deduction.
(ii) Whether a deduction on the grounds of Polkey was applicable.
(iii) The amount of any compensation payable.
(iv) Was the claimant entitled to notice pay, holiday pay and payment in respect of unpaid wages.
Sources of Evidence
3. The tribunal heard evidence from Daniel Loughran and from Mr Hugh Doherty a director of the respondent company and from Mr Tony Corrigan and the claimant. The tribunal also had two bundles of documentation, one from the claimant and one from the respondent.
Findings of Fact
4. The respondent business is a small business with two partners. The staff is comprised of three lorry drivers and one office/depot manager. Mr Daniel Loughran, the son of one of the partners helps out with general management of the company.
5. The business is an oil distributing business delivering oil to other small businesses and residential property in the Antrim area.
6. On a day to day basis, the business would receive requests for the delivery of oil and the depot manager would allocate the deliveries to each driver. The lorry driver would arrive in the depot each morning at approximately 8 a.m. and he would be given a list of deliveries for the day. He would then go out on his deliveries.
7. On top of these deliveries the lorry driver might also make ad hoc deliveries if he receives a request from the public for a delivery on his rounds. This is normally by either cash on delivery or by prior authorisation from the office.
8. In other words, if the delivery is not going to be paid for in cash, the driver should phone the office to obtain prior approval and if approval is given, he can deliver the oil and issue a docket which would then be paid at the office at a later time.
9. Each driver is assigned to a lorry and by and large this is the lorry they will use for all deliveries. There are some occasions when a driver will drive another lorry but this does not happen very often.
10. A driver starts the day with a certain volume of litres and at the end of the day the invoices he has delivered should tally with the oil dispensed.
11. An end of shift report should be generated by the driver at the end of each day and the depot manager should check that the end of shift report equals the amount of oil dispensed. The end of shift report shows a breakdown by product, total litres delivered and a rolling total for that lorry.
12. The number of litres delivered during a shift is cleared each time an end of shift ticket is generated although a figure for the rolling total always remains.
13. The respondent accepted that this end of shift report was not always generated at the end of each day. The respondent also indicated that the checks in the office were not sufficient to ensure that invoices were being issued for all oil delivered. The inadequacy of the office checks only came to light as a result of this investigation.
14. The claimant was employed as a lorry driver. The claimant was employed from
22 February 2007 until 8 April 2008 when he was summarily dismissed on
suspicion of theft of oil from the respondent. The effective date of termination is
therefore 8 April 2008.
15. Towards the end of March 2008, one of the partners in the business, Mr Hugh Doherty received a tip off from one of his customers that his oil was being sold for cash without dockets.
16. Mr Doherty informed Mr Loughran of the problem and Mr Loughran began an investigation. He and Mr Hyndman, the depot manager, and Ms Kelly Hegarty, an employee from an associated business, analysed the delivery dockets, the end of shift tickets, the rolling totals and the tracker times on all the lorries and came to the conclusion that the claimant had been involved in the selling of oil which was not being invoiced to the respondent.
17. The investigation was a paper exercise where all the evidence pointed to oil being unaccounted for in accordance with what Mr Doherty had been told and it also pointed to the claimant being the culprit. The respondents considered the possibility that their metering equipment might be faulty and they checked the position with the manufacturer. The manufacturer confirmed that only oil actually delivered would show up in the totaliser figure.
18. The investigation concluded in the early hours of 8 April and it was then decided that Mr Loughran would set aside some time to follow the claimant in his lorry to see if he would be caught delivering oil without permission.
19. It was agreed that the surveillance would start first thing in the morning and that Mr Doherty himself would go to the premises in the morning to give out details of the deliveries for the day.
20. On 8 April 2008, the claimant arrived at the depot and was given his deliveries for the day. Mr Doherty told the claimant that he should go straight to his first delivery as he was needed there by a quarter to nine. He was told that it was important as it was a rented house and the estate agent and engineer would be waiting for the delivery.
21. Rather than going straight to his first delivery, the claimant pulled into a quiet cul de sac where he was observed delivering 2000 litres of oil into two oil drums in the back of a Ford Transit van.
22. Once the oil had been delivered, Mr Loughran phoned the police and waited for their arrival. He saw the claimant get back into the lorry and get ready to drive away. As the police had not arrived as quickly as expected, Mr. Loughran drove his vehicle round to block the lorry and van in. When the claimant realised he was blocked in, he got out of the lorry and walked towards the car. Once he saw who was in the car, he ran over to the transit van, knocked the door and told the occupant to make sure he squared up the delivery at the office.
23. There were very few words exchanged between Mr Loughran and the claimant at this time. When Mr Loughran asked the claimant what he had been doing, he said he had been making a delivery. He did not offer any other explanation.
24. When the police arrived, Mr Loughran gave them the details of what had happened and the police proceeded to arrest the claimant and the driver of the transit van, a Mr Denvir Armstrong.
25. After investigations, the matter was referred to the Public Prosecution Service. The PPS has decided not to prosecute the claimant.
26. It was clear from the respondent’s evidence that they felt quite justified in dismissing the claimant immediately he was caught on 8 April 2008. It is unclear how the fact of dismissal was imparted to the claimant but in any event it is clear that the claimant knew by 30 April 2008 that he had been dismissed.
The Law
27. The right not be unfairly dismissed is outlined at Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the ERO”). Misconduct falls under one of the potentially fair reasons for dismissal set out at Article 130. Under Article 130A an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures, outlined below, have not been followed due to the employer’s failure.
28. Under the Employment (Northern Ireland) Order 2003, and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, an employer must follow a minimum procedure when disciplining or dismissing an employee. In a case where summary dismissal is warranted, that is in a case of gross misconduct, the modified procedure applies. The modified procedure requires that, having summarily dismissed the employee, the employer must write to the employee to set out the reasons for dismissal and must advise the employee of his right to appeal. If the right to appeal is exercised there must be a meeting and the outcome of that appeal must be communicated to the employee. If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and award a minimum of four weeks’ pay if the basic award transpires to be lower than that figure. The tribunal must also increase any award which it makes to the employee by 10%, and if it considers it just and equitable in the circumstances, by a larger percentage up to a maximum of 50%. The percentage increase must be made unless there are exceptional circumstances which would make the increase of 10% minimum unjust or inequitable (Article 17).
29. Under Article 146 of ERO, the tribunal must make an award of four weeks’ pay for unfair dismissal based on the failure to follow the statutory procedure unless the tribunal considers that such an award would result in injustice to the employer.
30. Under Article 156(2) of ERO, the tribunal has the power to reduce the basic award to any extent for contributory fault on the part of the claimant, i.e. conduct of the claimant before the dismissal. The compensatory award can be reduced to any extent for the same reason under Article 157(6).
31. If the tribunal is minded to reduce the award for contributory fault, both the basic award and the compensatory award must be reduced by the same percentage (McFall v Curran [1981] NICA IRLR 455). As regards contributory fault the question for the tribunal is whether the claimant’s conduct contributed to his dismissal.
32. The case of Polkey v Dayton Services LTD 1987 3 All ER 974 HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% if following the procedures correctly would have made no difference to the outcome.
33. The EAT in Alexander v Bridgen [2006] IRLR 422 summarised the interplay between the statutory procedures and fair or unfair dismissal as follows:
(1) if the statutory procedures were followed and there was a breach of other procedures but the individual would have been sacked anyway, that is the chance of dismissal was more than 50%, the dismissal is fair;
(2) if the statutory procedures were followed but there was a breach of other procedures and if the chance of dismissal was below 50% the dismissal is unfair, but a Polkey deduction can be made;
(3) if no statutory procedures were followed there is automatic unfair dismissal and four weeks pay is the minimum which must be paid and can be increased by 10 to 50% unless the award of four weeks pay would result in injustice to the employer.
34. The case of Ingram v Bristol Street Parts 2007 UKEAT/0601/06 confirms that there is no need for the tribunal to set out compensation in detail and determine the percentage uplift, if there is a 100% reduction for contributory fault. The blameworthy conduct of Ms Ingram was the sole factor in her dismissal and it was therefore justified that she received no compensation at all. In the Ingram case the respondent had not in fact breached the basic statutory procedure therefore there was no automatic unfair dismissal. Mr Justice Elias, however, commented that there is nothing to stop a full 100% reduction of compensation even where there was a breach of procedure. In that case the basic award had already been extinguished by the payment of statutory redundancy.
Conclusions
35. We did not consider the claimant to be a reliable witness and we were not convinced by his evidence. In particular we noted that the claimant did not offer an immediate explanation to Mr Loughran when he was stopped on 8 April 2008. We also considered that the claimant’s failure to provide a full explanation to the respondent at a later date was also telling.
36. We did not accept the claimant’s explanation regarding his failure to go straight to the first customer on the morning of 8 April 2008. He had been told by his employer that it was important that he go straight there and his failure to do so was suspicious.
37. We believe that the attempts to implicate Alan Hyndman were without substance and were merely a smokescreen to divert attention from the real culprit.
38. We believe that it was too much of a coincidence that the first delivery that was made was to the only customer who did not require approval or cash on delivery. We also note that the respondent did not accept that this customer had special arrangements in any event,
39. We found Mr Doherty to be an open and honest witness. His evidence included statements which were not all self serving, unlike the claimant whose evidence was all self serving.
40. We found Mr Corrigan to be an evasive witness and we did not place any reliance on his evidence.
41. The tribunal finds as follows in relation to the dismissal process.
42. The tribunal finds that the respondent had reasonable grounds for suspecting that the claimant was guilty of theft, having gathered information in their investigation and having then in their eyes caught the claimant red handed. The tribunal also finds that theft of this nature constituted gross misconduct and warranted summary dismissal.
43. An investigation was carried out prior to dismissal and there were reasonable grounds for believing that the claimant was guilty of theft. However, the statutory procedure was not followed.
44. The tribunal accepts that the respondent had reasonable grounds for believing that the claimant had committed a theft of oil. There was enough evidence to give reasonable grounds for believing that the claimant had sold oil to a third party for his own gain and this was grounds for summary dismissal.
45. As the tribunal has found that summary dismissal was warranted in this case the modified statutory dismissal procedure applies. The statutory procedure allows for summary dismissal but the modified procedure then requires that an employee is given a right of appeal. This did not happen and this is a breach of the statutory procedures. If the respondent had followed this procedure it is possible that the claimant would have appealed. However, the tribunal does not believe that any appeal, if exercised, would have changed the result.
46. The failure to give a right of appeal means that the respondent falls foul of the minimum statutory dismissal procedure and the tribunal must find unfair dismissal.
47. However, the tribunal finds that the claimant contributed 100% to his own dismissal and this would reduce any award to nil were it not for Art 146 of the ERO. This states that the claimant is entitled to an award of four weeks’ pay unless it finds that this would cause injustice to the employer. The respondent clearly did not grant an appeal of its decision to dismiss and it was wholly to blame for that. It is certainly regrettable that the respondent did not grant an appeal. However, we find that an award in this case would result in injustice to the employer as the evidence points to the claimant having sold the respondent’s property for his own gain. It would not be just to allow the claimant to profit further from this action. In making this finding the tribunal does not condone the employer for its failure to follow procedures.
48. The basic award would have amounted to four weeks’ pay at the statutory maximum of £330 per week.
49. The tribunal does not need to look at the effect of Polkey on the compensatory award, if no such award has been made due to the 100% contributory fault. The tribunal’s view is that this is a case where a 100% Polkey deduction would have been warranted.
50. In summary, therefore, the tribunal finds that the respondent unfairly dismissed the claimant due to the failure to follow the basic statutory dismissal procedures. However, given that 100% contributory fault deduction has been found, Polkey need not come into play. The 100% reduction for contributory fault extinguishes the basic and compensatory awards. No award is made in respect of the enhanced basic award of four weeks as it would result in injustice to the employer in this case.
51. The claimant is not entitled to notice pay as the respondent was entitled to dismiss without notice.
52. The claimant is entitled to holiday pay of £429.00 being 7.5 days at £57.20 per day.
53. The claimant is entitled to unpaid wages of one week of £286.00
Interest
54. This is a relevant decision for the purposes of the Industrial tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 9 November and 26 November 2009, Belfast.
Date decision recorded in register and issued to parties: