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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGuile v North Antrim Community Transpo... [2010] NIIT 07580_09IT (17 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/07580_09IT.html
Cite as: [2010] NIIT 07580_09IT, [2010] NIIT 7580_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7580/09
CLAIMANT: Deirdre Elizabeth McGuile
RESPONDENT: North Antrim Community Transport Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and the respondent is ordered to pay her £25,853.02 compensation.
Constitution of Tribunal:
Chairman: Ms P Sheils
Members: Mr E Miller
Dr C Ackah
Appearances
Mrs McGuile appeared and was represented by Mr Philip Henry of Counsel instructed by Thomas Taggart and Sons Solicitors.
The respondent appeared and was represented by Mr Nigel Flynn, Acting Manager of North Antrim Community Transport Limited.
1. The Claim and the Response
(1) Mrs McGuile lodged a claim form on 8 December 2009 alleging that she had been unfairly dismissed and that she had not received appropriate notice pay.
(2) The respondent presented a response on 13 January 2010 accepting that they
had dismissed Mrs Mc Guile by reason of redundancy.
2. Sources of Evidence
(1) Witnesses
The Tribunal heard from the claimant, Mrs McGuile.
The Tribunal also heard from Mr Nigel Flynn, who was the respondent’s representative and only witness.
(2) Documents
The tribunal was furnished with a hearing bundle of substantial length and various extraneous documents which were submitted at the hearing.
3. Submissions
(1) The Tribunal received lengthy written submissions from both parties including a replying submission from Mrs McGuile’s representative.
(2) The Tribunal noted the respondent included new evidence in their submissions.
The Tribunal disregarded this new evidence.
4. Facts
The tribunal found the following facts as agreed or proven on the balance of probabilities:
(1) Mrs McGuile, whose date of birth is 30 August 1960, was employed in May 2003 by the North Antrim Community Transport Limited, NACT, herein referred to as the respondent. The respondent is a community based social enterprise providing transport services to people in County Antrim who otherwise would have difficulty accessing public transport.
(2) Mrs McGuile worked for the respondent on a voluntary and casual basis for some time prior to becoming a permanent part-time bus driver in May 2003. Mrs McGuile worked 25 hours per week in a team of seven drivers. Three other drivers also worked 25 hours per week and one driver, Patsy O’Brien, worked as part of the team but his post was independently funded. The other drivers worked fewer hours again.
(3) The respondent organisation was managed by a board of volunteers. Before April 2009 the previous office manager had gone on a period of long term sick leave and not returned. This manager ultimately resigned.
(4) In or about April 2009 Mr Nigel Flynn was appointed as acting manager. Mr Flynn is a self employed person who agreed to work for the respondent on a contract basis for three days per week. He billed them by the hour and by the day. He was not an employee of the respondent.
(5) Mr Flynn’s role was to “trouble shoot” and manage for the respondent who faced a number of financial and other difficulties. Mr Flynn had responsibility for conducting a review of the respondent’s policies and procedures, to bring these up to date. Mr Flynn also had day to day managerial responsibility for staff including work appraisals. Mr Flynn carried out appraisal interviews with the staff in May 2009.
(6) The respondent relied heavily on public funding. In or about early 2009 the Department of Regional Development (DRD) advised the respondent of a new strategic approach to community transport in Northern Ireland. In view of this new approach the respondent anticipated that this would involve a redirection and refocus of their work from previously group hire to a new “Dial a Lift” service, known as DAL.
(7) Initially this new DAL service was to become operative in October 2009. However in July 2009 DRD announced that this initiative was to be postponed until 2010. In addition the respondent was directed by DRD to implement a 7% cut in budgetary expenditure.
(8) A number of events occurred in relation to Mrs McGuile from the date of Mr Flynn’s appointment in April 2009 until September 2009. These will be detailed further but they culminated in Mrs McGuile’s dismissal by Mr Flynn at a meeting between herself and Mr Flynn on 18 September 2009 and in her subsequently receiving a letter dated 23 September 2009 advising her that the respondent had decided not to offer her a new contract but to consider that letter as notice of the end of her employment with them.
(9) On receipt of the letter dated 23 September Mrs McGuile immediately contacted her solicitor who wrote to the respondent on 28 September 2009. This letter stated variously that Mrs McGuile was shocked to have her employment terminated and presumed that this was on the ground of redundancy; it noted the absence of any redundancy payment or any proper notice payment; it noted the lack of procedure around the redundancy and challenged the substantive basis for Mrs McGuile’s selection for redundancy and noted the respondent’s failure to comply with any relevant procedures. The letter also requested the respondent to consider the letter as a grievance under the statutory procedures
(10) The solicitor’s letter also referred to the meeting between Mrs McGuile and Mr Flynn that had occurred on 18 September 2009. The letter stated that Mr Flynn had offered Mrs McGuile two options: the first of these was that she would be dismissed as and from that date on the basis that she was on a final warning or, that she could wait until her contract came up for renewal and accept that it would not be renewed.
(11) The letter also noted that no proper investigatory or disciplinary processes had been engaged in relation to Mrs McGuile’s alleged disciplinary record which was the basis for her dismissal.
(12) The respondent replied to this letter. The Tribunal saw a draft letter but saw neither the original letter itself nor a proper copy from the respondent. The file draft, produced by the respondent, indicated that the respondent had dismissed Mrs McGuile on the grounds of redundancy and accepted that they were liable for a redundancy payment in relation to her.
(13) The draft letter went on to state that discussions and consultations regarding redundancy and processes to be applied had taken place on at least two occasions during regular staff meetings; that three stages of disciplinary action had been implemented against Mrs McGuile, as per the respondent’s procedural policy, resulting in three written records of serious incidents and inappropriate behaviour by Mrs McGuile:-
· Absence from duty with company property (i.e. a bus) without permissions/or without adequate explanation.
· Damage to third-party property and failure to report same to her line manager.
· Failure to report or action a fixed penalty parking ticket acquired while driving for the company.
(14) The letter added “we believe these to be substantial and to merit disciplinary action given the nature of this business. We absolutely refute your suggestion that these are “spurious grounds”. The letter went on to add “we believe these to be fair reason for her dismissal”.
(15) The letter went on to state “regarding selection for redundancy, we have based our decision on a number of issues which include disciplinary record, sickness records and performance of duty, a selection matrix has been prepared to facilitate this decision and staff have been made aware of this process during prior consultations”.
(16) The respondent’s letter went on to offer Mrs McGuile a grievance hearing and the respondent then wrote to Mrs McGuile separately offering her same. The grievance meeting was held on 13 October 2009 after which the respondent confirmed their decision to dismiss Mrs McGuile.
5. The Dismissal - The Meetings on 17 and 18 September 2009.
The claimant’s account.
(17) Mr Flynn and Mrs McGuile were at odds about the details of these meetings and particularly, in Mr Flynn’s case, in identifying the one at which he dismissed Mrs McGuile.
(18) Mrs McGuile stated that events leading to the meetings on the 17 and 18 September 2009 began some weeks earlier when she had been given a parking ticket while using one of the respondent’ buses. It was a bus that was leased to the respondent and was technically owned by Translink. In the respondent’s organisation drivers who acquired such tickets were liable to pay for these themselves.
(19) When she got the parking ticket Mrs McGuile was very annoyed with herself and discussed the matter freely when she returned to the office. When she mentioned it specifically to Mrs Boyd she reminded Mrs McGuile that she had to pay for it herself. Mrs McGuile acknowledged this and resolved to do so.
(20) However Mrs McGuile forgot to pay the parking ticket. She had remembered about it in the week commencing September 14 and decided to pay it by the end of that week when she got her wages.
(21) In the meantime, on the 17 September, Mr Flynn received a telephone call from Translink advising him that there was an outstanding parking ticket in relation to one of their buses. Mr Flynn was very annoyed and communicated this to Mrs Boyd. Mrs McGuile was not in the office at the time and Mrs Boyd rang her to tell her that Mr Flynn had become aware of the outstanding parking ticket and that he was very angry. At this point the claimant offered to go into the office to speak to Mr Flynn herself and did so.
(22) On her arrival into his office Mrs McGuile stated that Mr Flynn had greeted her with the words, “you plonker”. Mr Flynn told Mrs McGuile that she had failed both to pay the parking ticket and to report her having got it in the first place. Mrs McGuile told Mr Flynn that she had told everyone in the office at the time she got the parking ticket and specifically told Mrs Boyd who reminded Mrs McGuile that it was her responsibility to pay it. She also told Mr Flynn that she had simply forgotten to pay the parking ticket and that she intended to do so that week. Mr Flynn then showed Mrs McGuile how to pay for the ticket on line.
(23) However Mrs McGuile also stated that Mr Flynn said that he would have to “speak to someone about this” and although Mr Flynn did not say to whom he wished to speak Mrs McGuile took it that he meant someone on the board.
(24) Mrs McGuile stated that Mr Flynn did not advise her that this meeting was a disciplinary meeting or that he would be placing a disciplinary note on her file.
(25) The following day, the 18 September 2009, Mrs Boyd told Mrs McGuile that Mr Flynn had detailed her to ask Mrs McGuile not to go home until Mr Flynn had returned to the office as he wished to speak to her. On his return to the office Mr Flynn called Mrs McGuile into his office and said that he had bad news for her, that she had lost her job.
(26) It was at this point that Mrs McGuile stated that Mr Flynn gave her the two options as set out above and recommended that she take the second option, so that she could go on to benefits sooner. Mrs McGuile stated that Mr Flynn outlined how he had secured the resignation of the former manager in a similar manner where his position as regards benefits had been thus preserved.
(27) Mrs McGuile was very upset at this meeting but she stated that she was very clear that Mr Flynn had not told her that she had been made redundant nor did he discuss with her that she had been selected for redundancy by virtue of a redundancy selection matrix. Further Mrs McGuile stated that she had not been given a disciplinary note
The respondent’s account
(28) Mr Flynn’s account of the details of these meetings was at best confused. Mr Flynn’s version was that at the meeting of the 17 September he had spoken to Mrs McGuile in relation to the non payment of the parking ticket, that they discussed her failure to report the matter to him, that he told Mrs McGuile that he considered the issue to be a disciplinary matter that would warrant a third and final warning. The evidence of this included a file note dated 17 September 2009, summing up these points.
(29) However at the hearing Mr Flynn stated that the date on the file note may have been a typographical error and that the meeting at which he dismissed Mrs McGuile was probably 18 September 2009.
(30) Mr Flynn accepted that when he received the telephone call from Translink on the 17 September 2009 that he had “investigated” the matter by dint of asking in the office if anyone knew who the bus driver had been and he had been informed immediately by Mrs Boyd that it had been Mrs McGuile. Mr Flynn also accepted that Mrs Boyd had known this information because Mrs McGuile had told her about it when it had occurred.
(31) Mr Flynn stated that immediately after the meeting on the 17 September 2009 and before his second meeting with Mrs McGuile he sent Mrs Boyd an email, at 11.35 am on 18 September 2009. The Tribunal saw this email. It requested Mrs Boyd to complete a redundancy matrix in relation to sick absence of the drivers. Mrs Boyd was requested to have the information ready for the following Wednesday and to keep the information confidential.
(32) The email also asked Mrs Boyd to print out a copy of “Deirdre’s stage three disciplinary note to give to her this afternoon.”
(33) However when challenged on the point that Mr Flynn had allegedly gone ahead on 18 September 2009 and had acted on information he did not yet have, that is to say the completed redundancy matrix, Mr Flynn stated that he had also had a conversation with Mrs Boyd, prior to his sending her the email, which gave him “a rough idea” of the information he sought.
(34) The Tribunal did not accept Mr Flynn’s account that he had spoken to Mrs Boyd and had obtained a “rough idea” of Mrs McGuile’s circumstances either sufficient to dismiss her or at all. The Tribunal noted that Mrs Boyd was not called to give evidence on this point which may have been of assistance to the Tribunal in reaching a conclusion to the contrary.
(35) In addition, Mr Flynn’s evidence in relation to the use of the word “plonker” was also confused and inconsistent. In his first account of this encounter, in the response form, Mr Flynn stated that it had been Mrs McGuile who had used the word “plonker” to describe herself. However, at the hearing Mr Flynn denied that the word “plonker” had been used at all, by either of them, that Mrs McGuile had called herself stupid, that he may have agreed with her, but that it would not have been in any derogatory sense.
(36) The Tribunal accepted Mrs McGuile’s accounts of these two meetings. In reaching this conclusion, the Tribunal took account of the fact that Mrs McGuile’s accounts of events were clear and consistent while Mr Flynn’s were confused and inconsistent.
(37) Accordingly the Tribunal found that Mr Flynn had spoken to Mrs McGuile on the 17 September 2009 in relation to the non-payment of the parking ticket but had not advised her that she was attending a disciplinary meeting, that he subsequently spoken to Mrs McGuile on the 18 September 2009, had told her that she had lost her job and offered her two options, dismissal there and then, or to wait and not have her contract renewed.
(38) The Tribunal also accepted that Mr Flynn made no reference to any redundancy situation or to Mrs McGuile’s having been selected for redundancy at all or by virtue of a redundancy matrix at either of these meetings. The Tribunal also noted that in dismissing Mrs McGuile the respondent gave Mrs McGuile one weeks notice, whereas if she had been made redundant she would have been entitled to six weeks notice.
(39) The Tribunal also considered the respondent’s case that they had perceived the need for redundancies and that the procedures and processes in relation to the consultation for and selection of Mrs McGuile for redundancy were fair and, in the alternative, that if the procedures were found to have been unfair that Mrs McGuile would have been made redundant in any event.
6. Redundancy Consultations and Procedures
(40) Mr Flynn stated that there had been discussions and consultations with staff regarding redundancy and the processes to be applied on at least two occasions. However the Tribunal saw notes in relation to only three staff meetings. These occurred in February, March and April 2009, so that two of them occurred before Mr Flynn took up his role. There was no mention of possible redundancies at the meeting in February 2009. It was agreed that at the meeting in March 2009 the drivers had been told that there was no money and that the organisation had three options, to close, to lay off some staff or make sacrifices and work together to sort the organisation out. However between this meeting and the meeting in April 2009 the drivers, including Mrs McGuile, had renewed their contracts and Mrs McGuile stated that there was no feeling of threat about redundancies.
(41) At the meeting in April drivers were introduced to Mr Flynn as “caretaker manager” and his role was explained. Mr Flynn had then spoken to the meeting and had stated that finances were a huge problem but because the Department of Rural Development were behind them the organisation could continue and it did not have to close.
(42) Mr Flynn went on to add that there would be a difficult period of up to six weeks with many changes and that he would hold one-to-one interviews followed by appraisals for each of the drivers. Mr Flynn also added that as some of the bus runs were very obviously not making money they might be dropped and that he would be looking at pricing and run times to identify inefficiencies. He also stated that he had been given authority by the board to change things and do what was necessary to return the organisation to what it had been five years previously. There was no mention made of possible redundancies.
(43) There was an additional staff meeting in September 2009. Mrs McGuile arrived late for it by ten minutes. Mr Flynn asserted that he had made reference to possible redundancies at this meeting. Mrs McGuile stated that redundancies had not been mentioned during the part of the meeting for which she had been present and that there had been no discussion after the meeting amongst herself and her colleagues to that effect.
(44) The Tribunal noted that there was no minute presented to it in relation to this meeting. The Tribunal considered that if this meeting had formed any part of a proper redundancy consultation process that this meeting would have been properly recorded and documented.
(45) The respondent added that the possibility of redundancies had been raised with staff on an individual basis during the appraisal interviews. However Mrs McGuile stated that there had been no mention made to her of redundancy either as an option or as a possibility during her appraisal.
(46) The Tribunal saw the appraisal documentation of all the staff appraisals and noted that there was no reference to redundancy in any of it. Again the Tribunal considered that if Mr Flynn had used the opportunity of the appraisal interviews to discuss redundancy with individual staff members that he would have properly recorded and documented this.
(47) As this was the only evidence on which the respondent sought to rely to establish that there had been “discussions and consultations about redundancies with staff” the Tribunal concluded that it was insufficient to establish that proper redundancy discussions and consultations had taken place.
7. The Redundancy Matrix
(48) Mr Flynn stated that he had begun to draw up a redundancy matrix immediately after the Board meeting on the 16 September 2009 and that he had produced the matrix on 17 September. The minutes of this meeting indicated under “Staffing” that all driver contracts were due for renewal by 1 October 2009, that Mr Flynn had had two meetings with drivers, explaining that cuts were imminent, and that had he proposed three options to the Board. These were (1) zero hour contracts, (2) all drivers to be interviewed for their positions and (3) lose 1-3 drivers using the Matrix system, amount of sickness, attendance, disciplinary record and performance based on last appraisals.
(49) However there was no indication in these minutes or other evidence produced to the Tribunal which, if any, of the options had been agreed by the Board. Further while Mr Flynn stated that he had been directed by the Board to draw up the redundancy matrix there was no record of that direction or of any further discussion at the Board meeting about redundancy in relation to proper redundancy consultations or procedures for the implementation of any such redundancy, or at all.
(50) The Tribunal noted that this hearing was attended at all times by at least two members of the Board, although not always the same two members. On occasions at least one member of the Board who had attended that meeting was present at the hearing and could have verified whether the Board had reached a decision to make redundancies and that the Board had directed Mr Flynn to compile a redundancy matrix.
(51) The Tribunal noted that the Board members listened and followed the challenging cross examination of Mr Flynn and still chose not to assist the Tribunal in its obligation to ascertain the truth. In these circumstances the Tribunal decided to draw an adverse inference from this and concluded that no evidence existed to support Mr Flynn’s contentions in these respects.
(52) The Tribunal concluded that although there had been some discussion at the Board meeting on 16 September around a number of possible options to be considered for reducing staff and other costs, there was no supporting evidence offered to the Tribunal to indicate that any one option had been chosen. The Tribunal also concluded that, in the absence of further discussion by the Board, that the other options were not viable or had been discounted and on the basis that there was no other evidence of any financial nature put to the Tribunal there was no evidence to suggest that a redundancy situation actually existed.
(53) Further the Tribunal discounted Mr Flynn’s evidence that he had produced the matrix on the 17 September 2009 at his meeting with Mrs McGuile. This contradicted the respondent’ own evidence, namely the email to Mrs Boyd, dated 18 September, requesting her to produce information for and to complete the matrix in relation to sick absence by 23 September 2009.
(54) The Tribunal was presented with a redundancy selection matrix that set out three criteria -disciplinary, sick absence and work performance and not the four criteria referred to in the Board minutes. The matrix purported to show that Mrs McGuile had been chosen for redundancy on the basis of her score in both disciplinary and sick absence and that she had a relatively low appraisal score. Mrs McGuile ranked second last when the matrix was applied to her.
(55) However the criterion, sick absence, was not contained in the respondent’s Redundancy Policy. Mr Flynn stated that it had been added to the matrix by him even though he accepted that advice given to him by the Labour Relations Agency in April 2009 had warned that it was a criterion to be used with caution because of the potential difficulties the criterion could have, such as one-off long term sick absences that could skew the result, the possible impact of maternity-related sick absences and even discrimination issues like disability discrimination.
(56) Mr Flynn accepted that the reasons for Mrs McGuile’s absence on sick leave had not been taken into account and also accepted that one four week period of absence taken by her ought to have been discounted, as per the respondent’s own policy, as it had arisen from a number of bereavements in Ms McGuile’s family. If this had been properly taken into account it would have significantly impacted on Mrs McGuile’s score and moved her further up the ranking and out of danger of selection for redundancy on this basis.
(57) Mrs Mc Guile was astonished and bewildered to learn that she had scored only two out of five marks in the Job Performance/Team category in the redundancy matrix. This mark was based on employees’ appraisal interviews.
(58) On reading the matrix it was hard to see how this score had been arrived at when it was coupled with the words “Improving Attitude” while the same score was given to another employee with the words “inflexible, team attitude poor” and another employee scored four marks in the same category with the words “solid worker, can be disruptive.”
8. The Grievance Hearing
(59) In response to Mrs McGuile’s solicitor’s letter of 28 September 2009, the respondent agreed to hear Mrs McGuile’s grievance. The solicitor then wrote and set out ten specific and detailed bases which formed Mrs McGuile’s grievance so that these could be addressed at the meeting.
(60) The meeting was held on 13 October 2009 and was conducted by two board members, Mr Michael O’Regan and Mr Andrew McAllister. Mrs McGuile was accompanied by a friend. The Tribunal did not hear evidence from either of the Board members nor did the Tribunal hear any evidence in relation to their experience of dealing with grievances. Mr Flynn confirmed that he had not briefed either of the board members with any advice or literature about how to conduct this grievance meeting. He did not provide them with copies of the organisation’s policies and procedures.
(61) Mr Andrew McAllister suggested that, in order to give the meeting some structure, the meeting would address the points raised in Mrs McGuile’s solicitor’s letter. The meeting went through, in brief, each of the disciplinary offences which had counted against Mrs McGuile in the selection for redundancy. Mrs McGuile stated to the meeting that the three disciplinary warnings against her were not for legitimate reasons. Mrs McGuile did not seek to dispute the facts of the offences but that they had not been sufficiently serious to warrant disciplinary warnings.
(62) The Board members refuted any suggestion of malice on behalf of the staff or of the voluntary Board and stated that the redundancy procedure had been used fairly to identify staff who should be made redundant and that Mrs McGuile was one of two such staff. At this point Mrs McGuile was presented, for the first time, with the redundancy matrix purported to have been used in her selection for redundancy.
(63) Mrs McGuile also stated that she believed that procedures had changed since the arrival of Mr Flynn in the organisation. However Mrs McGuile was advised that no procedures had changed and that they were all still as per the organisation’s original policies, although this remark was subsequently discredited in light of Mr Flynn’s acceptance that he had amended the organisation’s redundancy policy.
(64) Mrs McGuile was asked at the meeting if she could suggest any means whereby the issues between them could be resolved at which point the minute recorded that Mrs McGuile stated that there were two options, she got her old job back or she could go to an employment tribunal. At the end of the meeting the Board member Mr Andrew McAllister advised Mrs McGuile that he would take the minutes back to the Board.
(65) The minutes of this meeting suggested that the meeting canvassed all ten points raised by Mrs McGuile’s solicitor. Mrs McGuile disputed the minutes and stated that there had not been as lengthy a discussion as the minutes suggest and that she had not felt that she had had a proper hearing.
(66) The Tribunal accepted that the minutes provided to the Tribunal did not accurately reflect what had taken place at the grievance meeting. In reaching this conclusion the Tribunal noted that the minute stated that the meeting had commenced at 16.35 pm and had concluded at 16.40 pm.
(67) The Tribunal also noted that the minute included under each remark and query made by Mrs Mc Guile the respondent’s responses to and explanations for Mrs McGuile’s queries. It appeared to the Tribunal that the Board members hearing the grievance reached conclusions at the meeting, ahead of any investigation into Mrs McGuile’s allegations and ahead of any discussions at a Board meeting.
(68) The Tribunal saw a minute of the Board meeting of 14 October 2009 which indicated that Mrs McGuile had proceeded with her grievance and had had a meeting with Mr McAllister and Mr O’Regan which had enabled her to state her points. The minute added “a discussion of this matter took place and it was unanimously agreed that NACT would not be reinstating Deirdre. Nigel agreed to draft the letter of response to the Solicitor”.
(69) Mr Flynn stated that he
had not been involved in reaching the decision not to
re-instate Mrs McGuile. However, the Tribunal noted that Mr Flynn had
attended this meeting, had not excused himself for the discussion in relation
to this matter (even though he was the subject of the grievance) and had agreed
to draft a letter to Mrs McGuile’s Solicitor. The Tribunal concluded that
Mr Flynn had more likely than not contributed to the discussion and
ultimately the decision not to reinstate Mrs McGuile.
(70) By letter dated 15 October 2009 Mrs McGuile was advised that the respondent had decided to confirm their decision to dismiss her. Mrs McGuile was given an option to appeal this decision. In the interim Mrs McGuile contacted her solicitor again who wrote to the respondent and made it clear that Mrs McGuile was unhappy with the grievance meeting on 13 October and doubted that it had properly dealt with her grievance.
(71) This letter went on to query whether there had been a disciplinary meeting or hearing in relation to the client’s dismissal or if there was an appeal process against Mrs McGuile’s dismissal.
(72) The respondent replied on 21 October 2009 and confirmed that all aspects of the grievance were dealt with during the grievance meeting. However, contrary to the minutes of the grievance meeting, this letter indicated that it had been Mrs McGuile’s request that the meeting be structured on the basis of her solicitor’s letter, not that it had been Mr McAllister’s suggestion.
(73) This letter from the respondent also stated that there had been disciplinary meetings between Mrs McGuile and her line manager preceding the decision to dismiss Mrs McGuile on the grounds of redundancy and that these disciplinary matters were completed prior to her dismissal. The letter added that since Mrs McGuile’s dismissal was on the grounds of redundancy it would not have been appropriate to have held the disciplinary hearing on that matter. However the letter added that as no dismissal meeting was convened at the time of the redundancy dismissal they were prepared to offer Mrs McGuile the opportunity of having this matter dealt with at her subsequent grievance appeal hearing.
(74) The letter added “given your client’s submissions during the initial hearing and the size of this organisation impacting on our ability to accommodate multiple hearings, we would suggest that any future appeal hearing could be used to deal with both the grievance and the dismissal matters”.
(75) At hearing there was no evidence brought to explain the contents of this correspondence and in particular the words “given your client’s submissions during the initial hearing …” which tended to suggest that claimant’s issues had been thoroughly canvassed at the initial grievance hearing. The Tribunal noted the difficulty Mr Flynn had reconciling this statement with the fact that the minutes indicated that that meeting had taken five minutes total.
9. The Grievance Appeal Hearing
(76) A grievance appeal meeting took place on 2 November 2009 and was conducted by two different Board members, Ms Briege Conway and Ms Kerry Lafferty. This meeting commenced at 10.35 am and concluded at 11.05 am and canvassed the alleged disciplinary issues in relation to Mrs McGuile’s absence from work and use of a bus without permission, the accident with the fence, and the parking ticket incident.
(77) Mrs McGuile gave her explanations about the three incidents. These have been set out in some detail at this point on the basis that the Tribunal reached important conclusions of fact in relation to them that were of relevance to this case;
(78) Absenting herself from work and retaining bus without permission
(79) This incident occurred on 22 April 2009. Mrs McGuile had returned to work after a period of absence for bereavement leave on the death of her father. In addition to her father’s death Mrs McGuile had experienced the deaths of two other people close to her, a total of three bereavements in four months, the result of which was that Mrs McGuile was in a highly emotional state. She had just completed her morning run when a song was played on the radio that triggered memories and caused Mrs McGuile great distress.
(80) Mrs McGuile drove the organisation’s bus home. This was not unusual in that this would have been Mrs McGuile’s accepted practice in order to complete the afternoon runs. However on this occasion Mrs McGuile decided that she was unable to return to work to do the afternoon run and she asked her daughter to ring into the office and explain this. The daughter did so and almost immediately two of Mrs McGuile’s colleagues appeared at the house to collect the bus. Mrs McGuile was subsequently put off work on sick leave by her doctor for the rest of the week.
(81) On the following Monday Mrs Boyd told Mrs McGuile that Mr Flynn wanted to speak to her. Mr Flynn stated that he had asked Mrs McGuile for an explanation of her absence as he had had no knowledge of or reason for her absence. She went into his office and he asked her to explain her behaviour the previous week and Mrs McGuile did so. She added that she was sorry but that she had been overwhelmed with grief. She stated that her doctor had advised her not to return to work for the rest of the previous week.
(82) At this hearing Mr Flynn stated that he was not aware of the details surrounding Mrs McGuile’s absence and said specifically “I didn’t know the details of that”. However Mr Flynn did accept that it was usual practice for drivers to retain the bus if required to do an afternoon run on the same day. Mr Flynn also accepted that he had been aware that two other drivers had gone to Mrs McGuile’s house to collect the bus on the morning in question. Mr Flynn agreed that Mrs McGuile had told him that her daughter had rung the office to tell them what had happened but he accepted that he did not investigate this or otherwise seek to establish the truth of her account.
(83) Mr Flynn stated that he had regarded this discussion with Mrs McGuile as a disciplinary meeting. He produced a file note dated 27 April 2009 which purported to be a record of his having spoken to Mrs McGuile about her absence without notification, her erratic timekeeping and being absent from her duties on three occasions, namely the Wednesday, Thursday and Friday of the previous week.
(84) The file note stated that Mrs McGuile admitted to her mistakes and that she was sorry for letting down the rest of the team. The file note also added that Mr Flynn had informed Mrs McGuile that he considered the incident to warrant a verbal first warning and that he would be putting a note on her file to record this.
(85) Mrs McGuile stated that she first became aware that this had been a disciplinary meeting when her solicitors received the respondent’ letter, undated but in reply to theirs of the 28 September 2009, stating that this had been recorded as one of three serious incidents of inappropriate behaviour. Mrs McGuile stated that she had had no idea at the meeting that she was at a disciplinary meeting and stated that at no time during the meeting did Mr Flynn tell her that she was being disciplined. Mrs McGuile stated that she had not seen the file note until it was produced to her solicitors in discovery.
(86) Mr Flynn accepted that he had not written to Mrs McGuile to invite her to the disciplinary meeting or advised her that she had the right to be accompanied. Mr Flynn also accepted that at the outset of the meeting on the Monday he had not advised Mrs McGuile that the meeting was a disciplinary meeting and that she had the right to be accompanied. Mr Flynn also accepted that neither during or after the meeting had he advised Mrs McGuile that she had a right of appeal.
(87) The Tribunal accepted that Mrs McGuile had not been aware of the fact that she had been disciplined in relation to this incident. In reaching this conclusion the Tribunal took account of Mr Flynn acceptance that he had not told Mrs McGuile this fact prior to or at the outset of the meeting and that he had not told her that she had the right to appeal the disciplinary warning he allegedly gave her. The Tribunal also concluded that it was likely that Mrs McGuile had not seen the file note.
(88) The Tribunal also took into account of the fact that the file note appeared to record a substantially different set of offences than those with which Mrs McGuile was charged. It referred to “erratic timekeeping” which was not referred to by Mr Flynn in any subsequent correspondence or documents or at this hearing. It also made no mention whatsoever of the charge of retaining the bus without permission.
(89) The Tribunal also noted Mr Flynn’s evidence and demeanour at this hearing. Under cross examination Mr Flynn denied knowing any of the details of why Mrs McGuile had driven home upset or of what had caused her such distress. However even if it had been Mr Flynn’s case that Mrs McGuile had not conveyed any of these details to him at the meeting, which it was not, Mr Flynn would have become aware of these details during the course of these legal proceedings. The Tribunal concluded that the remark was made dismissively and out of Mr Flynn’s discomfiture and unease at denying what he knew to be true.
The Bus Accident
(90) This incident occurred on 15 May 2009. Mrs McGuile reversed the bus into a fence, causing some damage. Realising what she had done she got out of the bus and knocked on the door of the house to alert the owner. However she got no reply so she left a note saying what had happened and giving both her own personal details — address, phone number — as well as her details at the respondent organisation. Mrs McGuile finished her bus run and returned to the office where she reported the matter immediately to Mrs Boyd. Mr Flynn was not in the office at the time.
(91) Mrs McGuile offered to show Mrs Boyd the damage to the bus but when they got outside noticed that another employee had taken it for a job. However on their return to the office Mrs Boyd gave Mrs McGuile an accident report form to complete, which she did.
(92) Some short time later the owner of the fence rang the respondent organisation to discuss payment for the damaged fence. He spoke to Mr Flynn. Mr Flynn stated that at that stage he knew nothing about the accident and found out who had been responsible for it when he asked about it in the office.
(93) On 9 June Mr Flynn met Mrs McGuile in the corridor and asked her if he could speak to her. He told her that that he was taking issue with the fact that she had failed to report an accident. Mrs McGuile stated that she had reported the matter to Mrs Boyd and had completed an accident report form. Mr Flynn then told Mrs McGuile that Mrs Boyd had told him that Mrs McGuile had not reported the accident to her.
(94) On her further protestations that she had reported the matter Mr Flynn asked
what did Mrs McGuile think would happen if he were to bring Mrs Boyd into the room and that the women would be at loggerheads. At this point Mr Flynn left the room and when he returned he said, “I’ll give you that one” from which Mrs McGuile concluded that he had spoken to Mrs Boyd and she had borne out Mrs McGuile’s version of events.
(95) Mrs McGuile also told Mr Flynn that she had specifically left her details at the house so that the owner could contact her and she could make good the damage. However at this point Mrs McGuile stated that Mr Flynn disregarded her offer to pay saying “that’s what insurance is for.”
(96) Mrs McGuile stated that Mr Flynn had not told her that she was at a disciplinary hearing or that she was being disciplined.
(97) Mr Flynn stated that he had subsequently written a file note recording Mrs McGuile’s failure to report the bus accident. The file note referred to it as “matters arising on Friday the 5 May 2009”. The file note went on to state that the meeting had addressed Mrs McGuile’s “subsequent actions to deal with the incident and subsequent repair without the knowledge of her employers NACT”. The file note also recorded that Mr Flynn had decided that this incident warranted a second warning and that this would be thus recorded.
(98) Mr Flynn accepted that he had not written to Mrs McGuile to invite her to the disciplinary meeting or advised her that she had the right to be accompanied. Mr Flynn also accepted that at the outset of this meeting he had not advised Mrs McGuile that the meeting was a disciplinary meeting and that she had the right to be accompanied. Mr Flynn also accepted that neither during or after the disciplinary meeting had he advised Mrs McGuile that she had a right of appeal.
(99) Mrs McGuile was not aware that this had been a disciplinary meeting or that she had acquired a second disciplinary warning until she had begun these proceedings and the details came to light in correspondence and discovery from the respondent.
(100) The Tribunal accepted Mrs McGuile’s version of this meeting and concluded that she had not been made aware that she had been at a disciplinary meeting or that she had been disciplined.
(101) In reaching this conclusion the Tribunal took into account Mr Flynn’s acceptance that he had not advised Mrs McGuile before the meeting that it was to be a disciplinary meeting and that she had the right to be accompanied and that he had not advised her at the end of the meeting or, at any time after it, that she had the right to an appeal.
(102) The Tribunal also took into account the content of the file note and noted the following; that the file note recorded that the bus accident had occurred on the 5 May 2009, and not the 15 May 2009, although under cross examination Mr Flynn accepted that the incident might have occurred on 15 May 2009 and that the meeting was recorded as also having dealt with Mrs McGuile’s “subsequent actions to deal with the incident and subsequent repair without the knowledge of her employers NACT”.
(103) The Tribunal noted that again there had been no mention of these in any correspondence or documents subsequent to this note and that there were no references to these at the hearing. The words tended to suggest that there had been a subsequent repair to the fence carried out or paid for by Mrs McGuile without the knowledge or her employers although at all times it was Mr Flynn’s own evidence that his meeting with Mrs McGuile had been triggered by a phone call from the owner who was ringing about payment for the repair of the fence.
(104) It was Mrs McGuile’s case that, although these episodes did occur, she had not been told at the time that any of them had amounted to disciplinary offences and that Mr Flynn had augmented them retrospectively to create a disciplinary record she did not have.
(105) Mrs McGuile’s representative challenged Mr Flynn on this in some detail and on the authenticity of the “corresponding” file notes. Mr Henry put it to Mr Flynn that the files notes had been created long after the incidents had occurred and were so created in order to support the disciplinary record they ascribed to Mrs McGuile that made her vulnerable for selection for redundancy.
(106) The Tribunal concluded that Mr Flynn had not only created three disciplinary offences, that under any reasonable view were spurious and untrue, but that he had also created three file notes to support his invention.
The Non Payment of the Parking Ticket
(107) This incident is detailed above. The Tribunal noted that in common with the first two incidents Mr Flynn accepted that he had not written to Mrs McGuile to invite her to a disciplinary meeting on either the 17 or 18 September 2009 nor had he told her at the end of it or afterwards that she had a right of appeal.
10. The Grievance Appeal Meeting continued
(108) There was a minute taken of the grievance appeal meeting. Mrs McGuile did not accept the contents of this minute and had her own version of the meeting in a note she had prepared for her solicitor. Both documents made it clear that Mrs McGuile sought to put her versions of the events that she had only recently become aware had been treated as disciplinary offences against her.
(109) At the conclusion of this discussion one of the Board members, Ms Conway, stated that Mrs McGuile’s solicitor seemed “under the impression that she (Mrs McGuile) was a perfect driver/employee” and added “The Board has been advised of a few incidents that dispute this.” The other Board member, Ms Laverty, then referred to the fact that “The Board has been aware of some incidents over the years …” and outlined a few of these before returning to the subject of the bus accident. This took Mrs McGuile completely by surprise and she was unable fully to respond to this.
(110) The minute noted that Ms Laverty countered Mrs McGuile’s contention that she and other staff had been unaware of impending redundancies by confirming the respondent’s view that the first stage of the redundancy consultation had been at the Drivers’ Meeting in February 2009 and subsequent staff meetings. This point was subsequently undermined when it became clear that the mention of possible redundancies at the meeting in February 2009 had been merely a reference to redundancy as one of a number of possible options and was largely displaced by the signing of new contracts at the end of March 2009.
(111) The Tribunal noted that the minute recorded that all the matters raised by Mrs McGuile at the grievance appeal meeting would be investigated and in the Board’s subsequent letter from Ms Laverty, dated 6 November 2009, confirming their dismissal of Mrs McGuile, Ms Laverty made reference to there being “further investigations.” There was no detail in this letter of what these investigations had been.
(112) The Tribunal noted that neither of the Board members who conducted the grievance appeal gave evidence in relation to it or to the further investigations referred to even though one of those Board members attended this hearing from time to time.
(113) The respondent replied to the letter sent by Mrs McGuile’s solicitors of the 29 October 2009 by their letter dated 5 November 2009, one day before Ms Laverty wrote to Mrs McGuile. This letter was written in the third person plural, using “we” and “our” but it was written and signed by Mr Flynn who said that he had based its contents on the Board meeting minutes and on instructions received. However the content of his letter was substantially different from the letter sent to Mrs McGuile by Ms Laverty and differed completely from the short Board meeting minute. Mr Flynn could not remember who had given him the “instructions” on which to base the letter. The Tribunal concluded, in the absence of any satisfactory evidence on this point, that Mr Flynn had written the letter himself from within his own knowledge and that the conclusions reached in the letter were his.
(114) The letter stated that the subsequent investigations had included asking another staff member if redundancies had been mentioned at the staff meeting in September 2009 and, contrary to Mrs McGuile’s assertions at the meeting, she had confirmed that the subject had been discussed. However there was no evidence that anyone had spoken to this employee nor was she called to give evidence that this had been the case.
(115) The letter also referred to an investigation into Mrs McGuile’s time sheets for the morning of 22 April 2009 and concluded that this was inconsistent with her statement that she had contacted the office at 9.00 am. However this point was canvassed at this hearing and it was clear that there was no basis for this conclusion.
(116) The letter then made a reference to the respondent having received complaints from staff of victimisation and harassment by Mrs McGuile and included the statement that those staff members had requested that Mrs McGuile refrain from contacting them. However at this hearing there was no evidence, even from Mr Flynn, about either the harassment or the victimisation beyond his statement of this.
(117) Mrs McGuile denied that she had behaved in any way that could have been construed as being harassment or that she had victimised any of the respondent’s employees. She also stated that this part of the letter and its directive that she should refrain from contacting any of the respondent’s employees had caused her a great deal of distress and made her afraid to contact or speak to Mrs Boyd who had been her friend. She added that it caused her to feel humiliated when all she could do was wave at Mrs Boyd on the street and pass on.
11. The Law
Unfair Dismissal
(118) Article 126 of the Employment Rights
(Northern Ireland) Order 1996 provides an employee with the right not to be
unfairly dismissed by his employer. Article 130 of the same order
indicates that any dismissal of an employee is fair if the employer shows that
the reason for the dismissal is a reason falling within Article 130.
(119) Article 130 states at paragraph (2) a reason falls within this paragraph if it –
(a) relates to the capability or qualifications of the employee performing work of
the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant or,
(d) is that the employee could not continue to work in the position which he
held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.
(120) Article 130(4) states where the employer has fulfilled the requirements at 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.
(121) Article 130(A) of the same Order provides that an employee shall be regarded
as dismissed where the statutory procedures (dismissals and disciplinary
procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.
12. The Tribunal’s Conclusions
(122) In light of its comprehensive findings of fact the Tribunal concluded that Mrs McGuile had been unfairly dismissed when she was dismissed from her job on 18 September 2009. The Tribunal concluded that respondent had constructed an opportunity to reduce its staffing levels by dismissing Mrs McGuile for a number of so called disciplinary offences and by skewing her other scores on a subsequently drafted redundancy matrix.
(123) The Tribunal also concluded that Mrs McGuile had not been dismissed by reason of redundancy nor would she have been selected for redundancy at any time. The Tribunal concluded that the respondent created the facts surrounding the alleged redundancy dismissal after the actual dismissal had taken place on 18 September 2009.
(124) In light of its findings of fact that the information relating to the selection matrix was not available at the time of Mrs McGuile’s dismissal, that the respondent accepted that it had improperly taken into account a period of Mrs McGuile’s absence, contrary to its own policies and procedures, and the inconsistency between the job performance scores at Mrs McGuile’s appraisal and in the matrix and in comparison with her colleagues Tribunal could find no evidence to suggest that Mrs McGuile would ever have been properly selected for redundancy.
(125) The Tribunal noted that even if it had been the case that Mrs McGuile had been
made redundant, Mrs McGuile had not been invited to any dismissal meeting to advise her of this or offered any right of appeal.
(126) Accordingly, the Tribunal concluded that Mrs McGuile had been unfairly
dismissed.
13. Compensation
The Employment Rights (Northern Ireland) Order 1996 and the Employment (Northern Ireland) Order 2003 make provision at Articles 130 and 152 for the payment to Mrs McGuile of compensation where Mrs McGuile has been unfairly dismissed. The following compensation has been calculated in accordance with those provisions.
Basic Award
6 complete years service = 6 x £187.85 x 1.5 = £1,690.65
Compensatory Award
Loss of Statutory Rights £500.00
Loss of Salary
from 30 September 2009 - 7 April 2010 (Date of Hearing)
= 28 weeks x £166.35 = £4,657.80
14. Future Loss
The Tribunal heard from Mrs McGuile in this regard and noted that although she had completed two weeks work after her dismissal she had thereafter been unable to work due to sickness. Her doctor had advised her not to work given that she was suffering from depression which Mrs McGuile claimed was the result of the manner in which she was dismissed. The Tribunal also accepted that hers was an area of work that had been particularly affected by the current economic recession and that the chances therefore of her getting work in this area in the near or mid future were slim. The Tribunal also noted that Mrs McGuile had sought employment outwith her own area of expertise and had met with no success there either. On this basis the Tribunal awarded future loss for a period of eighteen months
= 78 weeks x £166.35 = £12,975.30
Compensatory Award = £18,133.10
15. Uplift
Under the Employment (Northern Ireland) Order 2003, where a tribunal finds that the employer has failed to comply with the statutory dismissal procedures the tribunal may increase the compensatory award to an employee by at least 10% and up to 50%.
The Tribunal concluded that the respondent had acted opportunistically in dismissing Mrs McGuile but had thereafter sought to create the situation where the Tribunal would conclude that Mrs McGuile would have been made redundant if the procedures had been properly followed. In view of the Tribunal’s finding that Mr Flynn had deliberately sought to conceal the real position the Tribunal uplifted the award by 50%
Compensatory Award = £18,133.10
+ uplift = £ 9,066.55
Total Compensatory Award = £27,199.65
Less
Redundancy Payment = £1,687.00
And
Notice Payment =
£1,125.00
And
Wages = £224.28
Total = £3,036.28
Total Award = £25,853.02
16. Recoupment
This is a relevant decision for the purposes of recoupment of benefit received by
the claimant.
The Employment Protection (Recruitment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 apply in this case. These Regulations require the Tribunal to set out
(a) the monetary award;
(b) the amount of the prescribed element, if any:
(c) the dates of the period to which the prescribed element is attributable; and
(d) the amount if any by which the monetary award exceeds the prescribed
element.
Rule 4 Paragraph 2 of these Regulations states where the Industrial Tribunal in arriving at a monetary award makes a reduction on account of the employee’s contributory fault or on account of any limit imposed by or under the 1992 Act or the 1996 Act, a proportionate reduction shall be made in arriving at the amount of the prescribed element.
The prescribed element is that amount of the monetary award which represents a rate of pay or compensation for loss of earnings, up to the date of the Tribunal hearing. In this case that period runs from the date the claimant was in receipt of Jobseekers Allowance, 15 October 2009 until date of hearing 7 April 2010 a period of 23 complete weeks
= £64 x 23 =£1,472.00.
Accordingly the amount by which the monetary award exceeds the prescribed element in this case is £25,853.02 less £1,472.00 = £24,381.02
The attached Recoupment Notice forms part of the decision of the Tribunal.
17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest)
Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 7 – 9 April 2010, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 7580/09
CLAIMANT: Deidre Elizabeth McGuile
RESPONDENT: North Antrim Community Transport Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
25,853.02 |
|
(b) Prescribed element |
1,472.00 |
|
(c) Period to which (b) relates: |
15/10/09 -7/04/10 |
|
(d) Excess of (a) over (b) |
24,421.02 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.