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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mullan v McFadden Limited [2010] NIIT 07588_09IT (06 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/07588_09IT.html
Cite as: [2010] NIIT 7588_9IT, [2010] NIIT 07588_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7588/09 IT
CLAIMANT: Patrick Joseph Mullan
RESPONDENT: McFadden Limited
DECISION
The decision of the tribunal is that the claimant was not unfairly dismissed contrary to Article 130A (1) and (2) of the Employment Rights (Northern Ireland) Order 1996 and the claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mrs T Kelly
Mr E Grant
Appearances:
The
claimant was represented by Mrs N Fee, Barrister-at-Law, instructed
by
Murnaghan Colton Solicitors.
The
respondent was represented by Mr R Fee, Barrister-at-Law, instructed
by
Logan and Corry Solicitors.
1. The Issue
1.1 It was not disputed that the claimant had been dismissed from his employment by the respondent on the 21 October 2009. The issue for the tribunal to decide was whether the dismissal was therefore fair in all the circumstances.
1.2. In considering this we have addressed the following questions:
1. Did the respondent’s disciplinary procedures meet the requirements of the Statutory Disciplinary Procedures as set out in the Employment (Northern Ireland) Order 2003?
2. If the respondent’s procedures did not meet the requirements of the Statutory Disciplinary Procedures set out in question one above, did the respondent show that he would have decided to dismiss the employee if he had followed the procedure according to Article 130A (2) of the Employment Rights (Northern Ireland) Order 1996 as amended?
3. Taking account of the findings in respect of questions one and two above was the claimant unfairly dismissed?
2. The Facts
2.1 We heard evidence from the claimant, from Mr Feeny, the General Manager of McFadden Limited, from Mrs Owens, a Director of McFadden Limited, from Mr Desmond McFadden, the Managing Director of the Company and from Michael McCracken, a senior foreman of the Company. We found the evidence of a number of the witnesses unsatisfactory and contradictory, and taking account of this, we make the following findings of fact.
2.2 The claimant commenced employment with the respondent as a general labourer in August 2003. From the pay records which the respondent produced, his pay was on average £260.00 per week gross, £211.25 per week net although if he worked additional hours he was paid extra.
2.3 The issue which gave rise to the claimant’s ultimate dismissal involved a number of unauthorised absences from work during 2009. The first of these absences was on 3 February 2009 but there was no action taken by the respondent in relation to this absence. They did not contact the claimant or give him any warnings in relation to it.
2.4 On 19 February 2009 the claimant was injured in an accident at work. He had returned to work after the accident but subsequently had an absence of 11 days which was covered by a medical certificate. He returned to work on 7 March, but was then absence for a further 10 days from 13 March to 30 March and provided a sick line dated 26 March. At this stage, and because the claimant had not followed the notification procedure for absenteeism, he was sent a letter dated 24 March 2009, inviting him to a meeting at the respondent’s offices on 26 March at 12.30 pm. The letter was headed “Employee meeting - unauthorised absenteeism”. The claimant attended the meeting and brought with him a sickness certificate to cover him for the period up to 30 March 2009. This sick line was for a period of 2 weeks.
2.5 From the respondent’s point of view the issue was that the claimant had failed to follow the absence notification procedure set out in the claimant’s contract of employment, a copy of which was produced to the tribunal. Under the heading of “Sickness - absence”, that contract provides as follows:-
“There is no provision for an occupational sick pay scheme relating to your employment. You may, however, qualify for statutory sick pay.
You must ensure that McFadden Limited is advised of any absence from work due to illness or injury, or any other reason, as early as possible. The company may also be advised of the nature and expected duration of the absence. This must be done by telephone on the first day of absence.
If you are sick for four days and up to seven days, you must forward a doctor’s note (certificate), which is obtainable from your doctor. After seven days medical certificates must be obtained to cover you for the remainder of your illness and to certify the date on which you are fit to return to you (final certificate).”
2.6 The complaint made by the respondent was that the claimant had failed to notify their office on the days that he was absent. The claimant advised that he always contacted the foreman, and there did seem to be some conflict as to the correct procedure to be followed. Mrs Owens’ evidence was that she expected individuals to contact both the office and also to notify their foreman. Mr McCracken was clear that he did not have any notification from the claimant of his absence, but that if he had been aware of an absence he would have notified the office. It appears therefore that there may have been a change in the procedure which was adopted. It was not disputed however that at the meeting on the 26 March, the claimant was told that he should notify the office of any absences from work and that his sickness certificates must also be submitted promptly. Mr Feeny indicated that there was no formal warning given at this stage but the claimant was told that he must report any absences. The claimant was of the view that the meeting had been convened to discuss with him his accident at work and to try and settle that case. However this was clearly not the case from the letter which was sent to him. There was no dispute that the accident at work was discussed or that Mrs Owens raised the question of compensation and asked the claimant if he had any idea what level of compensation he was looking for. In the course of that discussion however it was clear that the claimant’s expectations were greater than the respondents’ view of the case and she advised him that the case would be referred to their insurers. This was done and the claim was settled in May 2009. There was no dispute about this, nor did the respondent appear to raise any issue over the claimant’s entitlement to seek compensation. Mr McFadden the Director indicated that there had been a number of claims over the years and these had been referred to the insurance company for settlement and he took a pragmatic view of this. His view was that the insurance was in place to cover such an eventuality. The claimant however formed the view that his employers’ attitude towards him changed after he brought the claim for the injury at work and that they were less sympathetic towards him.
2.7 In particular the claimant alleged that colleagues at work had made comments to him about the fact that he had brought a claim and that his foreman Mr McCracken had hummed the theme from “Robin Hood” when the claimant was present. Mr McCracken denied this but he also said that there was a certain amount of banter in the workplace and that “for the claimant to complain, it would be childish.” He also said that there was banter in every job and that it should be laughed off. Mr McCracken also said that he “pulled” the claimant several times regarding unauthorised absences and that in his words, it was “in one ear and out the other.”
2.8 The claimant also alleged that there have been two comments made to him by Mr McFadden. The first of these was an incident at the funeral of a former colleague. Mr McFadden was driving along the road while the claimant was walking with a number of other colleagues. The claimant alleged that Mr McFadden said, “Watch that Paddy Mullan fellow doesn’t fall in the hedge, he’ll end up making a claim.” Mr McFadden denied this comment. The claimant also said that on the last Saturday in August he was at a sheep sale in Omagh mart when he met Mr McFadden. He alleged that Mr McFadden said to him, “You are a lazy c**t and the first chance we get, we’ll get you down the road.” The claimant said that he simply replied, “You are wrong” and walked away. Again, Mr McFadden completely denied this.
2.9 On balance we have difficulty in making a precise finding in relation to these matters. We do believe that there was a certain amount of banter and comments made by colleagues to the claimant. We cannot however come to the conclusion that it all occurred as described by the claimant or that it played any part in the ultimate decision to dismiss the claimant. First of all, the colleagues making comments to the claimant (apart from Mr McFadden) were not in a more senior position to him and were not involved in any disciplinary or dismissal procedures. Secondly, the claimant did not raise any issue regarding Mr McFadden’s alleged behaviour to him before he was dismissed, as might have been expected if it had occurred and the claimant seriously thought it played a part in his dismissal. Thirdly, because the claimant had raised a complaint in relation to the way Mr McFadden had allegedly behaved, he was not involved in the appeal procedure referred to below.
2.10 The respondent also confirmed that because of issues in relation to attendance at work they had in fact altered their weekly time sheet which was completed by all employees. The time sheet was altered from May or June of 2009 to include the following:
“Employee terms and conditions of employment - absenteeism
· All employees must telephone main office before 10.30 am on days of absence through illness detailing reason for absence.
· All employees requiring unpaid leave for holiday/personal reasons but telephone request to main office one week beforehand (emergencies excluded).
FAILURE TO COMPLY WITH THESE TERMS WILL LEAD TO DISCIPLINARY PROCEDURES – NO EXCEPTIONS.”
2.11 The claimant disputed that the time sheet had been introduced in May or June and thought he had only seen it in September, the tribunal accepts that the time sheets were introduced earlier than this but that the claimant did not follow the procedure as stipulated in the time sheet.
2.12 The respondents’ disciplinary procedure made provision in relation to absences from work and classified absenteeism and failure to comply with the absence notification and certification procedure as minor misconduct. The respondent however treated the claimant’s failure to comply with absence notification and certification procedure as refusal to carry out a reasonable work instruction which was classified as gross misconduct.
2.13 In accordance with procedures followed by many employers, the disciplinary policy and procedure provided that if an initial offence was in the category of minor misconduct this would be dealt with as a first stage by a verbal warning which would be retained on file for a period of six months. In the event of a repetition there would be a first written warning recorded and retained on file for a period of 12 months. In the event of a second occurrence a final written warning would be issued which would contain a clear notice that a repeat of the offence within 12 months would result in dismissal. If there was then a further offence within 12 months an employee would be dismissed at the fourth stage of the procedure.
2.14 Following the claimant’s accident at work and his absence on sick leave, there were three other unauthorised absences in the summer of 2009. The first was on 10 June 2009, the second was on 24 July and the third was on
14 September. None of these was notified to the employer and no explanation was given for the absence. No action was taken by the employer at this stage in relation to these absences.
2.15 The claimant was again absent from work from 22 September 2009 until 20 October 2009. He received a letter from his employers dated 25 September 2009 in relation to employee absenteeism. We reproduce the letter in full because it is significant in terms of the events which followed.
“Dear Mr Mullan,
It has been noted that your attendance record of late has not been of a satisfactory standard. With this in mind I write to make you aware of the terms and conditions of your employment contract with McFadden Limited.
In cases of unpaid leave you must inform the office of your request for leave and it can only be authorised by the general office. Secondly in cases of sickness we also need to be notified as to when you are off and the likely length of time you are to be away from your workplace, giving supporting documentation in written format for our records.
I write to make you aware of these terms and conditions of your employment and secondly to request that you attend our main office for a meeting detailing the reason for absence. Please contact our main office to arrange a time for this meeting.
Please note that McFadden Limited does reserve the right to instigate disciplinary proceedings in cases where are employees do not fulfil the terms of their contract with our company.
I look forward to hearing from you.
Yours faithfully
Brendan Feeny, General Manager”
2.16 The claimant replied by letter dated 28 September 2009. In this letter the claimant indicated that he had severe lower back pain and he had been advised by his doctor to take at least a month off to give it a chance to heal properly. The letter enclosed a medical certificate which was dated 24-10-09 (it was believed that this was an error and it should have read 24-09-09) and the certificate was valid until 19 October 2009.
2.17 The respondent pointed out in evidence that no medical certificate had been forthcoming until such times as they had “chased” the reason for absence. They were also clear that the claimant had not notified the office of his absence in advance of the letter.
2.18 The claimant was due to return to work on 19 October 2009. There was some confusion as to the events which occurred regarding this. The claimant’s evidence was that he had kept in contact with his foreman, who at that stage was Kevin Coulter. However when he was due to return to work, a Mr Allen was acting up as foreman and the claimant had been advised to contact Mr Allen to arrange to be picked up to go to work in Ballycastle on 19 October. The claimant was of the view that Kevin Coulter said that Mr Allen knew to pick up the claimant. However, the claimant had not had direct contact with Mr Allen. The van did not arrive for the claimant at the usual time, and he said that he hung around for about an hour. He had no mobile phone with him and he then went home (rather than to the respondents’ offices which were close by) and rang Dermot Allen. Mr Allen told the claimant that he had forgotten all about him, that he would get him the next day. The claimant had not been in touch with the office and did not contact the office later that morning to explain to them what had happened.
2.19 On the evening of 19 October the claimant was having trouble with his back again and rang Dermot Allen to tell him that he would have to go to the doctor the next day. The next morning the claimant received a phone call from Brendan Feeny asking why he was off again. The claimant said that Mr Feeny was very annoyed about this. At this point Mr Feeny told the claimant to come in for a meeting straight away and said that he didn’t care if he had two broken legs to get himself in there. Mrs Owens also gave evidence that she had phoned the claimant’s home on the morning of 20 October to ask him to come in for a disciplinary meeting. The claimant was not notified in writing of the proposed disciplinary meeting as required by the statutory disciplinary rules and procedures. It was her evidence that when she phoned the claimant’s home, his mother answered the phone and said that the claimant was outside doing something on the farm. After some time the claimant came to the phone and Mrs Owens said that he would have to come in to a meeting regarding absence from work again. Her evidence was that she told him he was entitled to bring someone if he wished to do so and he said that was ok and that he would come in later.
2.20 At the disciplinary meeting there was a discussion regarding the claimant’s absences and his lack of contact with the foreman and the office. He was told that in the current economic climate, contracts could not wait and he must turn up or notify if he was going to be absent so that arrangements could be made to cover his absence.
2.21 Following the meeting a decision was made to terminate Mr Mullan’s employment and he was then sent a letter dated 21 October 2009 which refers to the disciplinary hearing being heard “yesterday.” The letter states as follows:
“The reasons for your dismissal are both your level of unauthorised absenteeism from the workplace and your non-compliance with the terms and conditions of employment and instruction issued by this office. We have had various reasons to write to you over the last year prior to yesterday’s meeting (letters dated 26th March 2006 and 25th September 2009) making you fully aware of gravity of not reporting your absence directly to our main office and the said consequences of not doing so. Even with the full knowledge of this, these actions persisted.
Having looked at your case we do accept that you may have had some incidents whereby you were legitimately off work through ill health. However, the overriding disciplinary actions were based on an overview of your total unauthorised absences throughout the most recent past and your disregard for the procedures for absence as laid out by McFadden Limited.
We must make you aware that you do have the right to appeal this decision by our company, however you should make any appeal in writing to us within 7 days of the date of this letter providing all additional information as to why this decision should be reversed.
Yours faithfully
Brendan Feeny.”
2.22 The claimant’s solicitors wrote to the respondent on 27 October 2009 indicating he wished to appeal the decision to dismiss him and raising a grievance in relation to the derogatory comments and remarks made to him in relation to his claim following an injury at work.
2.23 An appeal meeting was held on 13 November 2009 and the claimant was notified in advance of that meeting. The respondents requested that the claimant provide a written submission into the particulars of his grievance against Mr McFadden and other colleagues regarding the derogatory comments made to him, but the claimant did not do this.
2.24 At the appeal meeting (of which notes were provided to the tribunal) the claimant specifically referred to Mr Feeny’s telephone call to him on 20 October and the claimant again raised the issue that it used to be alright to contact the foreman and let them know of absences. The respondents pointed out to him that he had not given an explanation in relation to unauthorised sick days. At that appeal the claimant made reference to a “verbal assault” by Desmond McFadden on the Saturday in August. He did not refer to any other incidents or comments by colleagues. He was asked at that meeting how he explained the absences on 19 and 20 October and was asked by Brendan Feeny, “Going forward, what do you want to do?” The claimant replied that he wanted an apology from Des McFadden and that he wanted to be reinstated to work on condition that Des would apologise to him. He also indicated that he would not return to work without an apology.
2.25 Following that meeting the claimant was sent a letter dated 23 November 2009 in relation to his appeal. In relation to the grievance, it was indicated that the Director concerned did not recall any conversation outside the work place with him and that without any additional witnesses the matter could not be taken any further. The letter confirmed the decision to dismiss the claimant.
2.26 Since the date of dismissal the claimant had not found any other alternative employment. He said that there was very little work about but failed to give any concrete examples of jobs that he had sought, apart from one job as a driver for Iceland.
3. The Relevant Law
3.1 The relevant law in relation to the Statutory Disciplinary Procedures is found in Schedule One to the Employment (Northern Ireland) Order 2003 which sets out a three stage procedure for the standard disciplinary procedure. First, the employer must set out in writing the employee’s alleged misconduct and characteristics or other circumstances which lead him to contemplate dismissal or disciplinary action against the employee. This statement must be sent to the employee and he or she must be invited to a meeting to discuss the matter. Secondly, the meeting must take place in advance of disciplinary action, unless the disciplinary action consists of suspension. The employer must advise the employee of the basis of his grounds for disciplinary action and the employee must have an opportunity to consider his response. The employee must take “reasonable steps” to attend the meeting after which the employer must notify the employee of his decision and notify him of his right to appeal. Thirdly, if the employee wishes to appeal, he must inform the employer and a further meeting must take place after which the employer must inform the employee of his decision.
3.2 The right not to be unfairly dismissed is set out in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996. In this case we are concerned particularly with the provisions of Article 130 and 130A which provide as follows:-
“Article 130
(1) - 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 principal 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.
“(2) A reason falls within this paragraph if it - ……………….
(b) relates to the conduct of the employee……….
“(4) Where the employer has fulfilled the requirements of paragraph 1, of the determination of the question of 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 sufficient reason or dismissing the employee and (b) shall be determined in accordance with equity and the substantial merits of the case.
“Article 130A
(1) - An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if
(a) one of the procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissals,
(b) the procedures had not been completed, and
(c) non-completion of the procedure is wholly or mainly attributable to the failure by the employer to comply with its requirements.
“(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of the employee shall not be regarded for the purposes of Article 130 (4)(a) as by itself making the employer’s action unreasonable if he shows he would have decided to dismiss the employee if he had followed the procedure set out in part (i) of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such procedure or failure to comply with the requirements of such procedure shall be determined to reference to Regulations under Article 17 of that Order.”
3.3 Article 17 of the Employment (Northern Ireland) Order 2003 provides that if the statutory procedures have not been complied with by fault of the employer the award of compensation to the employee may be increased by between 10% and 50%. If the employee has failed to comply with procedures, then the compensation may be reduced by similar percentages.
3.4 We have also taken account of the Code of Practice on disciplinary and grievance procedures produced by the Labour Relations Agency which provides guidance on best practice in industrial relations and is to be taken into account by tribunals in deciding whether the procedures applied have been fair and complied with legal requirements. The code sets out four principles at paragraph five, which include using procedures to help and encourage employees to improve, rather than as just a way of imposing a punishment; providing employees with an opportunity to state their case before decisions are reached; never dismissing employees for a first disciplinary offence unless it is a case of gross misconduct; allowing an opportunity of appeal and acting consistently.
3.5 Paragraph 14 of the Code sets out how formal action should be pursued and specifically provides that an employee should be made aware of the allegations against him and should be given copies of any documents which will be produced at the hearing. Moving to possible sanctions, at paragraph 58 of the Code indicates that employers should inform employees of the likely consequences of breaking disciplinary rules.
3.6 Paragraph 59 deals with the gross misconduct and states, “Acts which constitute gross misconduct are those resulting in a very serious breach of contractual terms and are best decided by organisations in the light of their own particular circumstances. Such acts, whilst they occur only once, may be said to strike at the very root or heart of a contract of employment such as to destroy the essential bond of trust and confidence between the parties to the contract.” Examples of gross misconduct can include matters such as theft or fraud, violence or “very serious” insubordination, discrimination and incapability through drink or drugs or breach of confidence.
3.7 Turning to relevant case law the decision in Burchell -v- British Home Stores [1978] IRLR 379 makes it clear that an employer must take all reasonable steps to carry out a full investigation of the alleged misconduct and at the date of the dismissal, he must have had reasonable grounds to believe in the employee’s misconduct. The tribunal has to consider if the decision to dismiss was within the band of reasonable responses open to the employer, given the information available at the time. If the tribunal believes that the decision to dismiss is unfair because the procedures employed were flawed, then they must go on to consider whether, if proper procedures had been applied, the employee would still have been dismissed. If so, then the decision is not automatically unfair (Polkey, as amended by Article 130A of the Employment Rights (Northern Ireland) Order 1996, as set out above)
The tribunal must not substitute its own decision for that of the disciplinary panel or the appeal panel which took the decision to dismiss. However according to the decision in Securicor Limited -v- Smith [1989] IRLR 356 the question we must consider is whether or not the employers acted reasonably and within the land of reasonable responses in acting upon the finding and conclusions of the disciplinary, or in this case, appeal panel. In that case, where two employees were dismissed because of the same incident, one was successful on appeal and one not. In determining the fairness of the dismissal, the question is whether the appeal panel’s decision is so irrational that no employer could have reasonably have accepted it.
4. Decision
4.1 Taking the questions which we set out at the start of this decision we will now deal with them in turn.
1. Did the respondent’s disciplinary procedures meet the requirements of the Statutory Disciplinary Procedures as set out in the Employment (Northern Ireland) Order 2003?
4.2 We have set out the elements of the Statutory Procedures above and having considered the procedures followed, it is clear that the respondent’s procedures did not meet the basic minimum requirements. The claimant was not notified in writing of the alleged misconduct or the reasons for it and he was not given proper time in which to consider his position and his response nor was he given an opportunity to be accompanied at the initial disciplinary meeting.
2. If the respondent’s procedures did not meet the requirements of the statutory disciplinary procedures set out in question one above, did the respondent show that he would have decided to dismiss the employee if he had followed the procedure in accordance with Article 130 A (2) of the Employment Rights (Northern Ireland) Order 1996 as amended?
4.3 Had the respondent followed proper disciplinary procedures we believe that there would have been grounds for dismissal at the date when the employee was finally dismissed. According to the respondent’s own disciplinary procedure, failure to notify an absence was to be treated as minor misconduct. The respondent was clear that at the end of March 2009, there had been some difficulties with the claimant’s attendance at work and they called him in for a meeting to discuss unauthorised absences and made it clear to him at that stage that he must follow the proper notification procedure by notifying the office. Following this there were three further unauthorised absences of one day each on 10 June 2009, 24 July 2009 and 14 September 2009. The respondent took no action in relation to these absences, which were not disputed by the claimant. The respondent would have been entitled to implement the disciplinary procedure in relation to each of these absences. Had this been done, and each stage of the disciplinary procedure followed, the claimant would by September 2009 have been in receipt of a final written warning, notifying him that any repeat of the offence within 12 months would result in dismissal.
4.4 There was a further unauthorised absence on 19 and 20 October 2009, which was what led to the disciplinary hearing and the claimant’s subsequent dismissal. While there was an issue as to whether the claimant was fit for work on 20 October, there was no issue in relation to this on 19 October. According to the claimant’s evidence there was a mix up as to him being picked up for work. However the foreman concerned was not called as a witness either by the claimant or by the respondent and the tribunal does not believe that the claimant gave a satisfactory explanation in relation to this. If there was confusion about him being collected by a colleague, he could nevertheless have notified the office to make them aware that he was available for work and to ask if he could do some work locally that day which he failed to do.
4.5 When the claimant was contacted the following day by his employer, he said been to the doctor, but when Mrs Owens phoned his home he was out on the farm and had to be called in to answer the phone. We believe therefore that the respondent has demonstrated that had its own disciplinary procedures been followed, the claimant could quite conceivably have been at the stage of a final written warning and could have been dismissed in accordance with those procedures. It is not for the tribunal to substitute its decision for that of the disciplinary or appeal panel, and in the circumstances we find that dismissal was within the band of reasonable responses.
3. Taking account of the findings in respect of questions one and two above, was the claimant unfairly dismissed?
For the reasons set out above, it is our finding that the claimant was not unfairly dismissed and the claim will be dismissed.
Chairman:
Signed:
Date and place of hearing: 9 and 28 June 2010, Omagh