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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Daly v Curtis Developments Limited [2010] NIIT 01204_10IT (27 September 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01204_10IT.html
Cite as: [2010] NIIT 01204_10IT, [2010] NIIT 1204_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1204/10
CLAIMANT: Aaron Thomas Daly
RESPONDENT: Curtis Developments Limited
DECISION
The unanimous decision of the tribunal is that the claimant was fairly dismissed and it dismisses the claimant’s claim of unfair dismissal.
Constitution of Tribunal:
Chairman: Ms M Bell
Members: Mr J Boyd
Mr P Kearns
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.
1. The claimant complained in his claim that he was unfairly dismissed by reason of misconduct after he prepared a customer’s van for a PSV test on 25 February 2010, but it failed the PSV test on 2 March 2010 due to the incorrect alignment of its headlight beams, which the claimant claimed he explained to the respondent in a meeting on 5 March 2010 could have been due to other reasons including that the van was used for four days after preparation, that anything could have happened to the van in those four days, the driver could have reset tyre pressures, hit a kerb or used the headlight lowering switch in the van. The claimant stated that he gave the same reasons again by way of explanation at a disciplinary meeting on 10 March 2010 following which he was dismissed for gross misconduct due to having been put on a final written warning in December 2009. The dismissal decision was upheld following an appeal hearing on 16 March 2010 at which the claimant stated he told the respondent he thought the decision was unfair as he had used the equipment supplied by the company and had set the lights at the correct height on 25 February 2010 and repeated the possible reasons for the failure given by him on 5 and 10 March 2010.
2. The respondent resisted the claimant’s claims and asserted that it had fairly dismissed the claimant for misconduct, the claimant having been given a final written warning on 16 December 2009 which was to remain live on his file for twelve months, that the claimant at an investigative meeting on 5 March 2010 conceded that when he tested the headlamp alignment of the van that he did not park the vehicle on a flat surface which was essential, that he stated he had made his best guess possible and said he knew the headlights were not set properly. That at a disciplinary hearing on 8 March 2010 the claimant did not deny having failed to properly align the lights but argued that he was under pressure to get the job done. That the respondent decided that the claimant had been negligent in carrying out his job and a decision was made to dismiss in view of his final written warning for similar conduct. That at an appeal hearing on 16 March 2010 the claimant put forward the case that the vehicle had left with its lights properly aligned and that the problem could have occurred at any time in the four days up to the test, which the panel rejected after consideration in light of the claimant concessions at investigative and disciplinary hearings.
3. It was confirmed at hearing that the correct title of the respondent is Curtis Developments Limited and the title of the proceedings is accordingly now amended from ‘Aaron Thomas Daly v Curtis Cars’ to ‘Aaron Thomas Daly v Curtis Developments Limited’.
Issues
4. In determining the question whether the claimant was unfairly dismissed by the respondent the following issues were before the tribunal:-
(i) Has the respondent shown the reason for dismissal?
(ii) Was it for a reason relating to the conduct of the claimant?
(iii) Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal? That is:
· Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief?
· Did the respondent carry out as much investigation into the matter as was reasonable in all the circumstances?
· Was the misconduct in question a sufficient reason for dismissing the employee?
Evidence
5. The tribunal considered the claim, response, agreed bundle of documentation, heard oral evidence from Mr Chad Jones, a senior manager of the respondent based mainly in its Newtownabbey branch, Mr James Tannahill, the respondent’s Managing Director, Ms Jacqueline Stewart, employed by the respondent in HR, and the claimant.
Findings of Fact
6. The respondent is a car dealership with branches in Coleraine, Ballymena and Newtownabbey. The claimant after completing his apprenticeship with the respondent was employed by the respondent in 2001 as a technician in its Coleraine branch.
7. In December 2009 the claimant was required to carry out a used car preparation check before a customer took delivery of a vehicle. The claimant failed in the course of the used car check to tighten wheel nuts which resulted in damage to the vehicle and the respondent had to replace the vehicle for the customer with a newer vehicle. This incident resulted in the claimant being given a final written warning on 16 December 2009,
‘in respect of gross negligence of a customer’s property, resulting in vehicle damage.
You are warned that if there is not an immediate and sustained improvement in your conduct, you will be dismissed as detailed in the company’s disciplinary procedure.
It is hoped however that there will be no need for such action on the company’s part.
If your conduct remains satisfactory over the next 12 months, this warning will be deleted from your records.’
8. On Thursday, 25 February 2010 the claimant was given the task of carrying out a pre PSV check on a customer’s van the purpose of which was to undertake work necessary to ensure that the vehicle passed its PSV test. The van was returned by the respondent to its customer on 26 February 2010.
9. On Tuesday, 2 March 2010 the van failed the PSV test, the main reason being that its headlight beams were not correctly aligned. The customer was upset at the vehicle’s failure and the van was returned to the respondent. The respondent apologised to its customer and arranged to remedy the problem, to pay for a re-test and to collect and return the vehicle to the customer.
10. Mr Tannahill was in the respondent’s workshop when the van was returned and later asked Mr Jones to investigate the incident.
11. On 5 March 2010 Mr Jones and Mr Michael Robinson, the respondent’s after sales manager in its Newtownabbey branch, held an investigatory meeting with the claimant and Ms Stewart was present to take minutes. The minutes of the meeting were confirmed by Mr Jones and Ms Stewart at hearing as an accurate record of what was said at the meeting. The minutes record that the claimant ‘said that the van was not fully in the workshop so was not on a flat surface, but the customer was waiting on the van. Aaron was bringing the van into the workshop, but there was a car on the ramp so he couldn’t get the van in far enough. Chad said it was Aaron’s responsibility to do the job right. Aaron said that there was nothing he could do. He was making the best guess under the circumstances. Chad said Aaron should have asked someone to move the vehicle on the ramp. Aaron Daly said that Aaron Donnan had moved the vehicle higher up the ramp. Aaron thought that the lights would be OK and was making the best guess possible … Aaron said he knew that the headlights were not set properly, but doesn’t feel it should be landing at his feet.
Aaron said he didn’t want the vehicle going out wrong so he did his best. Chad said Aaron should have reported that he could not do the job properly and all the responsibility would be removed.’
12. Following its investigation the respondent decided it was appropriate to hold a disciplinary meeting and invited the claimant by letter dated 5 March 2010 to attend a formal disciplinary meeting on 8 March 2010 ‘to discuss your negligence whilst carrying out an MOT preparation on a customer’s vehicle. The headlights were not properly set by you, resulting in the vehicle failing the MOT test.’
13. The claimant attended, unaccompanied, the disciplinary meeting on 8 March 2010 with Mr Jones, Mr Robinson and Ms Stewart who was present to take minutes. Mr Jones and Ms Stewart gave evidence at hearing that the minutes of the meeting are an accurate record of what was said at the meeting. The minutes record
‘… Chad said we were surprised at Aaron’s attitude and why he had made his best guess. Chad said Aaron should carry out the job properly and professionally and as a result of not doing this we have a very unhappy customer.
Aaron said that he was told the customer was waiting and what was he to do. Chad said that Aaron did not ensure that the vehicle would go through MOT.
Aaron said he feels it is petty to bring him to a disciplinary hearing. Chad asked was it acceptable to leave your vehicle in and that it fails MOT.
Aaron feels it is harassment and he is pulled up for everything. He can’t do anything right.
Chad asked Aaron what the company should do.
Aaron asked was it over the £18.50 fee.
Chad said it was over customer satisfaction. Aaron asked would anybody else be in the same situation if they had done this. Chad said yes. Aaron didn’t think so. Aaron said it was only headlights, not brakes or defective tyre, etc. Aaron said it would have inconvenienced the customer by making him wait. Aaron said he feels he is being trapped in a corner.
Chad asked if Aaron had anything else to say. Aaron said he had no proper space to do the headlights correctly…’
14. The respondent arranged to bring the claimant back to a meeting on 10 March 2010 to give him a decision.
14. A disciplinary results meeting took place on 10 March 2010 with the claimant, Mr Jones, Mr Robinson and Ms Stewart present to take minutes. At hearing Mr Jones and Ms Stewart gave evidence that the minutes were an accurate record of what was said at the meeting. The minutes record that
‘Chad asked if Aaron had anything more to say regarding the incident. Aaron said the vehicle left on Friday morning and MOT was not till the Tuesday so anything could’ve affected it between Friday and Tuesday such as altered tyre pressures, changed a switch, put a load on.
Aaron said it couldn’t be proved that he set them wrong.
Chad said the only way to do the thing right is to use the beam setter and not guess the settings.
Aaron said the van could’ve been driven by other people.
Chad said Aaron told us the lights were not set properly during the investigation and disciplinary meeting…
The van which Aaron serviced had not been brought in to the right space and it was at an angle. Aaron said it can’t be done in Peugeot as it would fail. He did it in Toyota and it still failed. We can only act on the facts and Aaron said he was in the wrong. Chad said on top of his final written warning it takes it to gross misconduct and therefore results in dismissal…’
16. The respondent confirmed its decision to dismiss the claimant due ‘gross misconduct, negligence while carrying out an MOT test on a customer’s vehicle’ by letter dated 10 March 2010 and notified the claimant of his right to appeal.
17. The claimant appealed the respondent’s dismissal decision and an appeal meeting took place on 16 March 2010 held by Mr Tannahill, Mr Adam Davidson the respondent’s sales manager in Peugeot Coleraine and Ms Stewart who was present to take minutes. The claimant attended the appeal hearing unaccompanied. Mr Tannahill and Ms Stewart gave evidence at hearing that the minutes were an accurate account of what was said at the appeal hearing. The minutes record
‘… Aaron said the van left on Friday. Aaron wasn’t aware the vehicle test was not until the next Tuesday. Anything could have happened between the Friday and Tuesday, e.g., tyre pressures changed, vehicle hit kerb.
... Aaron said he set the lights to what he thought was right. There is no designated area and he used what was available at the time. Aaron said the vehicle was not on a flat surface… Aaron feels that the vehicle left the garage correctly on Friday. This is why he feels unfairly dismissed…’
18. By letter dated 17 March 2010 the respondent confirmed to the claimant after consideration its decision to uphold the decision to dismiss him, that the claimant’s point of appeal had been that the
‘decision was unfair as the vehicle left the garage on Friday, as far as you were concerned, ready for the PSV test. The PSV did not take place until 4 days later when it failed due to headlight alignment. You believe that you are not responsible for what happened between the vehicle leaving Curtis Cars and it being presented for PSV’.
The respondent set outs its reasons as
‘You allege that the vehicle was prepared for the PSV test and left the garage on the Friday in a condition which you believe you would have passed the test. However, at the investigatory meeting on the 8th March, you stated that you made your ‘‘best guess’’ when aligning the headlights as you did not position the vehicle on a level surface.
Having spoken to Chad and Michael you admitted that you knew that the lights had not been set correctly before the vehicle left the garage.
To summarise therefore:-
. We believe that you were aware that the lights were not correctly set before his vehicle left the garage.
As you already had a final written warning on your record for gross negligence, which we classed as gross misconduct, for leaving a wheel loose on a customer’s car in December 2009, this further incident leaves us with no alternative but to terminate your employment.’
19. The claimant at hearing disputed that he had made any admission that he had carried out the test whilst the van was not on a flat surface and that whilst he may have said it was not on a flat surface, that he did not go near the vehicle until he had asked his colleague to move the other vehicle up on the ramp to allow him more space to carry out the test properly. The claimant also denied that he had stated that he made his best guess; he stated that he would not make a guess on a safety related matter and disputed having said that the lights were not properly set. The claimant gave evidence that when the vehicle left on the Friday it was ready for the PSV test, but also that he had offered to the respondent to pay for the re-test of the vehicle and complained that he was never given any opportunity by the respondent to apologise to the customer in person. The tribunal is faced with a conflict in the evidence on behalf of the respondent that fault was admitted by the claimant in the investigatory and disciplinary meetings to it, whereas this is denied by the claimant. The tribunal find the respondent’s witnesses credible in their evidence regarding the accuracy of the minutes as to what was said at meetings with the claimant, but consider the claimant’s denial of having made any admission of liability and claim that the lights were properly set, at odds with his evidence that he offered to pay for the re-test and complaint that he was not given any opportunity to apologise in person to the customer. The tribunal prefer the evidence of the respondent regarding what was said at the meetings it had with the claimant and are satisfied on a balance of probabilities that the respondent’s minutes of the investigatory, disciplinary, disciplinary results and appeal meetings are correct.
The Law
20. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.
21. Article 130(1) provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or, if more than one, the principle reason) for the dismissal, and
(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
22. Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.
23. Under Article 130(4) where the employer has fulfilled the requirements of Paragraph (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 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.
24. It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods v Jones [1983] ICR17, such that;
25. The starting point should always be the words of Article 130(4).
26. In applying the Article 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.
27. 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 from that of the employer.
28. 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.
29. 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.
30. In the context of a misconduct case Arnold J in British Home Stores-v-Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at 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 circumstances be a reasonable conclusion”.
Application of the law to the facts found
31. It is not the tribunal’s role to retry the allegation of misconduct against the claimant, nor to consider whether we personally think that dismissal was fair, or to substitute our decision as to what was the correct course for that of the respondent, but to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.
32. The burden of proof is on the respondent to establish the reason for the dismissal and that it was for a reason relating to the conduct of the claimant. The tribunal, if satisfied as to the reason must next decide whether the respondent acted reasonably in treating the conduct as a sufficient reason for the dismissal, that is, whether the dismissal was procedurally fair and within a range of reasonable responses, taking into account all the circumstances including the size and administrative resources of the employer’s undertaking, and the equity and substantial merits of the case. In deciding this the tribunal must consider whether the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief, whether the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances when he formed that belief on those grounds, and whether the misconduct in question was a sufficient reason for dismissing the employee.
33. On consideration of all the evidence before it the tribunal find that the respondent has established that the genuine reason for the claimant’s dismissal was misconduct which is a potentially fair reason for dismissal.
34. Given the respondent’s evidence, which the tribunal finds credible the tribunal is satisfied that the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and had reasonable grounds upon which to sustain that belief. The tribunal is persuaded that the respondent believed that the claimant had made admissions that the test was not carried out properly by him during the investigatory and disciplinary meetings, and consider that the claimant having made such admissions is supported by his offer to pay for a retest and complaint of no opportunity to apologise to the customer in person.
35. The tribunal finds that the respondent at the stage at which it formed the belief that the claimant was guilty of the alleged misconduct, had carried out as much investigation into the matter as was reasonable in all the circumstances and that the investigation carried out by the respondent, the disciplinary and appeal hearings were all procedurally fair.
36. In determining whether the misconduct in question was a sufficient reason for dismissing the employee, taking into account the claimant already having a current final written warning in respect of negligence in relation to a customer’s property, the tribunal are satisfied that applying the objective standards of the hypothetical reasonable employer that the respondents decision to dismiss was a sufficient reason for the claimant’s dismissal, in all the circumstances falls within a band of reasonable responses and finds the claimant’s dismissal by the respondent fair.
Conclusion
37. It is the tribunal’s unanimous finding that the respondent has shown that the reason for dismissal was misconduct, that the claimant’s dismissal was procedurally fair, that the respondent’s decision to dismiss the claimant fell within a band of reasonable responses which a reasonable employer might have adopted and as such that the respondent acted reasonably in all the circumstances in accordance with Article 130 (4) of the 1996 Order and that the dismissal of the claimant by the respondent is fair under Article 130 of the 1996 Order. The claimant’s claim of unfair dismissal against the respondent is accordingly dismissed.
Chairman:
Date and place of hearing: 23 August 2010, Belfast.
Date decision recorded in register and issued to parties: