Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/6709_09IT.html
Cite as: [2010] NIIT 6709_9IT, [2010] NIIT 6709_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 6709/09

CLAIMANT: Michael Malinowski

RESPONDENT: EM News Distribution (NI) Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and the claimant’s claims for unfair dismissal and breach of contract are dismissed by the tribunal, without further order.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr J Hughes

Mr D Hampton

Appearances:

The claimant was represented by Ms F Smyth, Solicitor, of Donnelly and Kinder Solicitors.

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by DLA Piper Scotland LLP, Solicitors.

Reasons

1. The tribunal heard oral evidence on behalf of the respondent from Robert McBride, the claimant’s Line Manager, Geoff West, Production Manager, Ivan Mitchell, Deputy General Manager and Joe Doyle, General Manager of the respondent company and, for the claimant, from the claimant and from Sean Smyth of UNITE, the claimant’s Trade Union representative. The tribunal also received an agreed bundle of documents in evidence consisting of some 134 papers and a bundle of documents regarding loss alleged and additional documents were also introduced into evidence, by agreement. On conclusion of the oral evidence the tribunal received from each of the respective representatives written submissions and the tribunal is grateful to the representatives for the care and diligence in respect of which submissions have been advanced on behalf of the parties.

The Issue

2. In his claim to the tribunal dated 30 July 2009, the claimant claimed unfair dismissal and breach of contract. In a response to the claim dated 24 September 2009, the respondent denied unfair dismissal and contended that the claimant had been fairly dismissed in accordance with law. It was also contended that the claimant had not specified the alleged breach of contract; it was denied that the claimant’s contract of employment had been breached. Accordingly, the tribunal had to determine whether the claimant’s contentions were substantiated and if that were to be the case, the matter of appropriate remedy.

3. The claimant is a Polish National by birth and, as the tribunal understands it, has a very rudimentary command of written and spoken English. Throughout the tribunal hearing translation services where provided by three accredited translators and the tribunal is satisfied that these translation services were sufficient for the claimant fully to understand all aspects of the proceedings and fully and properly to participate in the hearing of the matter.

The Tribunal’s Findings of Fact

4. In consequence of the oral and documentary evidence before it, the tribunal, on the balance of probabilities, determined the following material facts:-

(1) The claimant commenced employment with the respondent company on 4 May 2007 as a warehouse operative. The respondent company was created by the merger of a number of different companies which were involved in the distribution and marketing of newspapers and magazines, serving Northern Ireland. The respondent conducted operations from premises at Belfast Harbour Estate. Included amongst the respondent’s workforce were a number of Polish Nationals, including the claimant.

(2) The claimant was provided with a written a statement of particulars of employment in English. He signed and dated, on 4 May 2007, a declaration contained at the end of a copy of that statement of particulars of employment confirming that he had read and had understood the content thereof and that he accepted the terms therein stated as constituting the basis of his contract of employment with the respondent. It appears that the content of these written terms was orally explained to the claimant in translation and the claimant understood the essential terms and principles contained within these written terms of employment; he confirmed that fact by signing the declaration.

(3) Included in these contractual employment terms was a disciplinary code. This code provided for disciplinary investigations and for disciplinary warning and dismissal procedures, dependent upon the nature of any conduct or capability issues. There was also an appeal procedure provided allowing any employee an opportunity to appeal by means of two appeal stages against any disciplinary action taken. The terms also made mention of health and safety at work and of the requirement for all employees to take reasonable care of their own health and safety and also that of others within the branch.

(4) The claimant’s employment with the respondent appears to have been uneventful until 23 January 2009 when the claimant received and formally acknowledged receipt of a final written warning dated 23 January 2009 in respect of damage to an operator screen. After investigation, the respondent’s operations manager, Geoff West, was satisfied that damage to this company equipment was caused by abuse and violent force on the claimant’s part; this had it seems resulted in damage to the equipment costing in excess of £1,200.00 to repair or replace. Mr West recorded that the claimant had acknowledged that he was angry and frustrated when the damage occurred and that he had been trained in the use of the glass screens, which were activated by touch only. Mr West recorded that whilst the claimant had alleged that he had hit the screen only with his fingertip, the manufacturer had assured the respondent that the screen was not faulty and that it would have taken a blow of considerable force to cause the damage that had resulted. Mr West stated that he was prepared to give the claimant the benefit of the doubt and thus he determined that the damage occurred through negligence rather than malice. The record confirmed that a final written warning was to remain on the claimant’s personnel file for a period of 12 months thereafter. The claimant did not appeal this disciplinary sanction.

(5) 4 May 2009 was a bank holiday in Northern Ireland and the respondent was operating that day with a reduced workforce. On 5 May 2009, a dispatch supervisor, Pitor Konarski, brought to the attention of Robert McBride, the claimant’s line manger, details of an alleged incident which had occurred towards the end of the working shift on the previous day. In a written statement Pitor Konarski alleged that he was coming out of the toilets in the workplace and an employee, Mariusz Stachurski, had called him to come quickly as he (Mariusz Stachurski) was standing outside the canteen or rest room. Pitor Konarski walked to the rest room where Mariusz Stachurski was standing and Pitor Konarski stated that he then witnessed the claimant in the rest room pouring what appeared to be a bottle of water into the rear of the microwave oven, the microwave having been turned upside down. Peter Konarski then approached the claimant and asked him what he was doing and the claimant, according to Pitor Konarski, replied that someone had taken his lunch box so if he was not going to eat, nobody else was. The claimant then walked past Pitor Konarski and out of the room. Peter Konarski stated that he then unplugged the microwave and checked that it was in order and when he turned it the right way up fluid ran out of the rear of the microwave. He then got a cloth and dried the rear of the microwave and he checked if it worked. Pitor Konarski thought it to be in working order. At that stage staff had finished work and had gone home so Pitor Konarski stated that he decided to wait and to report the incident the next day. In a statement Pitor Konarski provided a list of five named persons who he had seen around the rest room at the time and who might have seen what had happened. These persons included Mariusz Stachurski, Marcin Odzimek, Karoline Wiodarcyk, Przenyslaw Piotowski and Krisstoff Hentchel. Robert McBride then proceeded to conduct interviews with the persons named by Pitor Konarski and he recorded in writing the outcome of those interviews in manuscript and then these notes were typed. None of the persons interviewed confirmed having seen anything confirming Pitor Konarski’s statement of what was alleged to have occurred. In the case of Mariusz Stachurski, when it was put to him that Pitor Konarski had said that Mariusz Stachurski had called him to the canteen, the response to Robert McBride by Mariusz Stachurski was that Pitor Konarski must have been mistaken as he (Mariusz Stachurski) did not call him. Robert McBride then brought Pitor Konarski into the office and requested that he confirm that it was Mariusz Stachurski who had called him and Pitor Konarski confirmed that that was indeed the case, but Mariusz Stachurski continued to deny that.

(6) Robert McBride then conducted an investigatory interview with the claimant on 5 May 2009; present was an employee of the respondent, Konrad Slawinski, as translator. When Pitor Konarski’s version of events was put to the claimant the claimant confirmed that he had been in the canteen looking for his lunchbox and that he had accidently knocked over the microwave a cup of water which had been sitting on top of the microwave. He confirmed that he had a bottle of water with him at the time but that he did not pour it into the microwave. When asked if he had spoken to anyone, particularly Pitor Konarski, at the time, he confirmed that he did not speak to anyone and he could not recall speaking to Pitor Konarski. He could not explain why Pitor Konarski would have reported him as pouring water from a bottle into the microwave and that the matter was just an accident. At the conclusion of this interview the claimant was suspended from work on full pay pending the matter proceeding further.

(7) By letter of 6 May 2009 Geoff West wrote to the claimant, confirming that following the investigation interview carried out by Robert McBride in relation to the allegation that the claimant had poured water on the microwave oven in the canteen on Monday 4 May, there was sufficient evidence to consider the question of disciplinary action against the claimant in accordance with the company’s disciplinary policies. The letter stated that notes were enclosed relating to the investigation for the claimant’s information. The claimant was advised in the letter of his right to representation by a Trade Union representative or by a fellow employee. The claimant was also advised of his right to appeal any decision which might be taken.

(8) The claimant, via his Trade Union, UNITE, obtained written statements from Mariusz Stachurski and from Marcin Odzimek in Polish and these were then translated into English. In his statement, Mariusz Stachurski denied that Pitor Konarski had called him to the canteen. He confirmed that he had been interviewed on 5 May 2009 about the incident and he alleged in his statement that his manager (Robert McBride) did not believe any of his words and that he was laughing at what Mariusz Stachurski had said. He said that when he had walked into the canteen there was nobody except him and he saw spilt water beside the microwave and did not see who had done it. In his statement, Marcin Odzimek confirmed that he had not seen anything. All he had heard was that the claimant had turned over the cup which was sitting on the microwave.

(9) A disciplinary hearing proceeded on 18 May 2009. This was attended by Geoff West, by Natalie Montgomery as note taker, by the claimant and his Trade Union representative Sean Smyth, and by Patricia Kuchti acting as translator. At the commencement of the disciplinary hearing an issue was raised by the claimant's side regarding the original translator and any perceived difficulties were then rectified by the inclusion of Patricia Kuchti as translator. Sean Smyth made mention of the suggestion that the claimant had not received all of the written statements. Sean Smyth then raised, and Geoff West noted, the suggested inconsistency between the statements of Pitor Konarski and Mariusz Stachurski. The claimant and his representative then proceeded to take the opportunity to go over the events of the day in question and to put forward an explanation of what was stated to have occurred. The claimant confirmed how he had been looking for his lunch box in the canteen and that he had left the canteen to find someone to report his missing lunch box to, but he could not find anyone and he returned. As he was looking there was a cup of water on the microwave and it accidently spilled. The claimant accepted that he was angry at the time at the fact that his lunchbox was missing. Throughout the course of the hearing the claimant was afforded the opportunity to discuss matters with his Trade Union representative, with translation services being provided. The events where examined in some detail, including the issue of whether or not the claimant had had a conversation with Pitor Konarski and the matter of what other persons, if any, were present in the room at the time of the alleged incident and whether the microwave was turned off or unplugged and inspected after the incident.

(10) By letter dated 18 May 2009 Geoff West wrote to the claimant confirming that the outcome of the hearing was dismissal and stating that the matter came about as a result of, as it was put, “the investigation into an allegation that you caused deliberate damage to at least one of the microwave ovens in the rest room by pouring water on it”. Further Mr West recorded that he could find no reason to doubt what the supervisor had said, “that you deliberately poured water into the back of a microwave oven”. These actions, Mr West stated, were at the very least negligent and as the claimant already was in receipt of a final written warning issued on 23 January 2009, “also relating to damaging company property”, the employment would be terminated with effect from 18 May 2009. The claimant was advised of his entitlement to appeal the decision to dismiss.

(11) The claimant indicated a desire to appeal and the appeal hearing took place on 3 June 2009. The hearing was attended by the claimant and by his representative Sean Smyth, with Patricia Kuchti as translator and Lynn Kilbride as note taker. The hearing was conducted by Ivan Mitchell, Deputy General Manager of the respondent company. Mr Mitchell had not been involved in the matter prior to that point. At the commencement of the hearing, Sean Smyth contended that the statement from the supervisor (Pitor Konarski) had been discredited and alleged that the other statements from Mariusz Stachurski and Marcin Odzimek had been dismissed by the respondent out of hand. It was contended to be an unsafe decision and that the matter did not warrant dismissal. Ivan Mitchell then conducted a detailed discussion with the parties present as to what had transpired on the day. The claimant and his representative were provided with a full opportunity to furnish a detailed account and explanation concerning all relevant matters. Amongst other matters Ivan Mitchell’s exploration focussed on the claimant’s suggested cleaning up the spilled water after the incident and further touched upon the issue that in his initial statement the claimant stated that he had not recalled speaking to Pitor Konarski at the time. Sean Smyth raised some particular issues regarding translation services provided at the outset and alleged inconsistencies between statements.

(12) After the meeting had concluded, Ivan Mitchell interviewed Pitor Konarski and went over matters in some detail. Pitor Konarski was insistent that the version of events earlier given by him was correct. Ivan Mitchell also interviewed Marcin Odzimek who confirmed that when he went into the canteen the claimant was cleaning the microwave or checking it was in working order. Further, Ivan Mitchell interviewed Robert McBride and Konrad Slawinski (the later specifically upon an issue concerning whether or not the claimant might have stated that he was looking “inside” the microwave instead of “behind” the microwave and concerning any possible translation error). Then Ivan Mitchell interviewed Mariusz Stachurski who stated that he did witness the claimant looking for something in the canteen but, once again, denied calling Pitor Konarski to the canteen. Finally, Ivan Mitchell interviewed Krisstoff Hentchel and Pitor Piotroski who repeated that they had not seen anything of material significance.

(13) By letter of 10 June 2009 Ivan Mitchell wrote to the claimant confirming the outcome of the disciplinary appeal. Mr Mitchell’s letter dealt with specific issues concerning, for example, the request for a trained interpreter, the notification of the investigatory interview and the request for attendance of a representative at the investigation stage. He then proceeded to detail findings of fact made by the respondent regarding the incident. He dealt with the stated inconsistency between Pitor Konarski’s statement and that of Mariusz Stachurski. He mentioned that in the claimant’s first statement he had not recalled speaking to Pitor Konarski but at the disciplinary hearing and at the appeal the claimant confirmed that he had in fact had a conversation with Pitor Konarski at the time. He confirmed his finding to be that, having realised that there was water inside the casing of the microwave the claimant had failed to safeguard himself and colleagues by not unplugging the microwave before checking for water and then by switching the microwave back on first, without ensuring that it was perfectly safe to do so. Ivan Mitchell stated that it was his reasonable belief that the claimant had been negligent by damaging the microwave by pouring water into it as reported by his supervisor, Pitor Konarski; there was a fundamental breakdown in trust and confidence and by pouring water into the microwave the claimant had breached his duty of care towards himself and other employees. The final written warning was alluded to and, as Ivan Mitchell had reasonably concluded that once again the claimant had damaged equipment within the branch, he no longer had any trust and confidence in the claimant handling equipment. Having reviewed all the information, Ivan Mitchell confirmed that the dismissal was to stand, effective from 18 May 2009. A right of appeal to the General Manager, Joe Doyle, was then afforded.

(14) The claimant requested a further appeal to Joe Doyle and that took place on 1 July 2009. The appeal hearing was attended by Mr Doyle, by the claimant and his representative Sean Smyth, and by Lynn Kilbride as note taker, with Patricia Kuchti acting as interpreter. At the outset of the appeal, Sean Smyth raised the issue of a stated delay in production of witness statements and the alleged inconsistency between Pitor Konarski’s statement and that of Mariusz Stachurski. Mr Smyth further alluded to the actions of Pitor Konarski in going home and in not reporting the matter at the time. He raised a number of points regarding translation services and what he contended to be general procedural deficiencies. The earlier evidence obtained by way of witness statement was examined in detail in the course of the hearing, with Sean Smyth making various observations and Joe Doyle exploring the position in some detail with the parties present. The issues touched upon included the stated inconsistency of the evidence and the conflict between Pitor Konarski and Mariusz Stachurski. A further matter mentioned in the appeal concerned the stated non-availability of CCTV evidence which it was claimed on behalf of the claimant might have been conclusive evidence in the matter.

(15) After the second appeal meeting had concluded, Geoff West was interviewed by Joe Doyle regarding the CCTV matter that had been raised and Geoff West confirmed to Mr Doyle that he had checked the CCTV footage but that this did not adequately cover the area in question and that any record was erased after 10 days. Joe Doyle also investigated the issue around the provision of witness statements prior to the disciplinary hearing. Mr Doyle also interviewed Robert McBride and he then interviewed Konrad Slawinski in respect of the issue of Mariusz Stachurski’s contention that he had been laughed at by Robert McBride who he stated did not believe him and did not take his evidence seriously. Konrad Slawinski confirmed to Mr Doyle that Robert McBride had been totally professional and denied that he had laughed at Mariusz Stachurski’s information. Mr Doyle also interviewed Krisstoff Hentchel and Carolina Wlodarcyk who denied witnessing anything material. Finally, Mr Doyle then interviewed Mariusz Stachurski who maintained that he had not called Pitor Konarski over to the incident and that when he was making his statement to Robert McBride, Robert McBride and Konrad Slawinski were laughing and that they did not believe him.

(16) By letter of 15 July 2009 Joe Doyle wrote to the claimant detailing the outcome in respect of various issues that have been raised in the second appeal hearing, including access to CCTV footage, the use of a qualified interpreter, the alleged lack of representation at the investigatory interview and the witness statements alleged to be discrediting Pitor Konarski’s testimony. Regarding that latter issue, Mr Doyle noted that Mariusz Stachurski’s version of events, as given in his statement to UNITE, was also in conflict with other parties, these being Robert McBride and the interpreter Konrad Slawinski. Mr Doyle proceeded to confirm that, as there was a final written warning in existence, having investigated the matter and having spent considerable time in reading the comprehensive documents that had been compiled by the original investigation team and in the subsequent appeal, Mr Doyle had found no reason to overturn the decision; thus the dismissal stood, effective from 18 May 2009. The relevant documentation was included with Mr Doyle's letter to the claimant, including minutes from the appeal meeting of 1 July 2009 and of the further interviews carried out in regard to the appeal process.

(17) The tribunal does not need to determine any other material findings of fact for the purposes of this decision.

The Applicable Law

5. The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and, under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal. The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include the conduct of the employee. The guidance bearing upon the application of these statutory provisions is derived from a number of leading cases. In the general application of the statutory provisions in respect of unfair dismissal as set out above, in these matters of dismissal for alleged misconduct, the leading authority remains the case of Iceland Frozen Foods v Jones [1982] IRLR 439 in respect of which recent guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, following similar guidance and approval having been given by the Northern Ireland Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42. The tribunal in the exercise of its function is therefore very clearly guided by Iceland. Therein the guidance (as given by Browne-Wilkinson J and bearing in mind that the statutory provisions referred to below are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is now “neutral” burden of proof) is stated as follows:-

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

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

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

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

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

Iceland requires the tribunal to bring to bear an entirely objective and dispassionate assessment of matters and prohibits the tribunal from determining the matter in any way subjectively in the application of the so-called “band (or range) of reasonable responses” test.

In misconduct cases the Court of Appeal in Northern Ireland in Dobbin and Rogan has also again recently endorsed again the approach in British Homes Stores v Burchell [1980] ICR 303 where, to condense the approach suggested by Arnold J, what the tribunal has to decide is whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct at that time:-

(a) first, there must be established by the employer the fact of that belief; that the employer did believe it;

(b) secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief; and

(c) thirdly, that the employer, at the stage at which he formed the belief, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

The Tribunal’s Decision

6. The decision of the tribunal is arrived at in this case by focussing upon the material facts as determined by the tribunal and by the application of the law thereto, that being done in the light of the detailed and very helpful written submissions on the part of the respective representatives in this case. A brief summary only of these submissions will be recorded in this decision but the tribunal would wish to mention that it has carefully considered all aspects of these submissions in reaching a determination of the matter. Both parties have quite correctly referred the tribunal to Article 130 of the 1996 Order and to the fact that it is for the employer to show the reason for the dismissal and that such a reason falls, in a conduct-related dismissal of this type, within Article 130(2) of the 1996 Order. For the respondent, it has been submitted that the claimant was dismissed for gross misconduct, or for some other substantial reason. The respondent's contention is that, with the background of the final written warning in place (a final written warning which had not been appealed at the time), the respondent conducted a thorough and proper investigation into alleged misconduct. Investigatory interviews were carried out by Robert McBride; there was no evidence put forward to contradict the belief that Robert McBride acted in any other way than in good faith. Robert McBride was not acting as a decision-maker in the disciplinary process, but as an investigator only. For the claimant, it has been contended that the investigation was deficient and was procedurally unfair.

7. The reason for the importance of a fair and proper investigation in any case of alleged misconduct, such as arises in this matter, stems from the application of the principles deriving from the case of Burchell, mentioned above. Thus the employer must first establish belief in the guilt of employee of misconduct, secondly, the employer must demonstrate reasonable grounds to sustain that belief, and thirdly, the employer must demonstrate as much investigation as was reasonable, under the particular circumstances.

8. As has been correctly submitted on behalf of the respondent, it is an error of law for the tribunal to reopen the factual issues. In alleged misconduct cases, the tribunal is applying an entirely objective test and there is no room for any element of subjectivity on the part of the tribunal in the application of that test.

9. The task of this tribunal is to assess whether the respondent in the matter has identified the conduct-related reason underlying the dismissal and if that capable of falling within Article 130(2) of the 1996 Order. Then the tribunal is required to assess whether the respondent, on the facts of the matter, had a genuine belief that the claimant was guilty of the misconduct alleged against him.

10. In this matter, the tribunal notes the submission made on behalf of the claimant that the precise description of the nature of the misconduct alleged against the claimant had changed; as the submission puts it, “the goal posts widened” as the matter proceeded. The tribunal has taken note of this submission. It is indeed the case that the precise description of the alleged misconduct seems to have begun with the letter of 6 May 2009 from Geoff West to the claimant. Therein is the allegation “…that you poured water on a microwave oven in the rest room”. In confirmation of the outcome of Mr West’s disciplinary hearing, the letter of 18 May 2009 confirmed that the disciplinary hearing came about as a result of, “… the investigation into an allegation that you caused deliberate damage to at least one of the microwave ovens in the rest room by pouring water into it”. Mr West’s recorded finding was that the claimant, “… deliberately poured water into the back of a microwave oven” and he assessed this conduct to be, “…at the very least negligent”. In his letter of 10 June 2009 Ivan Mitchell confirmed that his belief was that the claimant had, “….been negligent by damaging the microwave by pouring water into it”. He stated that by pouring water into the microwave the claimant had breached his duty of care towards himself and other employees. He also concluded that, “…once again you have damaged equipment within the branch and as a result I no longer have any trust or confidence in you handling equipment”. Finally in his letter of 15 July 2009 confirming the outcome of the final appeal against dismissal, Joe Doyle confirmed that the dismissal was, “…. for breach of duty of care towards yourself and other employees”. It appears to be the case that no proper technical inspection of the microwave in question was carried out by the respondent company in the immediate aftermath of the incident. The tribunal has no reason to doubt that, to the extent to which this might constitute “decommissioning”, a fuse was removed and the microwave had remained inoperative since the date of the incident. In this context, the evidence on behalf of the respondent’s witnesses was that the pouring of water into a microwave oven presented a very serious and significant risk to health and safety and it was irrelevant to the respondent whether or not there had been actual physical damage to the equipment.

11. It is therefore the case that as the matter proceeded from the initial disciplinary hearing through the first appeal stage to the final appeal stage of the process, at that latter stage Joe Doyle, as General Manager concentrated upon the health and safety risk imposed by the claimant’s alleged conduct rather than upon the issue of any physical damage that might have been occasioned to the equipment. The focus of the investigation was therefore upon the available evidence that the claimant might have deliberately poured water onto or into the microwave oven, thereby causing a serious health and safety risk, not on the matter of whether there was physical damage to the equipment. It has been contended in submissions on behalf of the claimant that this shift in focus constituted a “widening of the goal posts”, that this was unfair both procedurally and substantively to the claimant, and that this came about out of necessity for the reason that the original investigation was not properly conducted and the framing of the charges was unfair.

12. As far as the respondent’s case is concerned the central issue was whether or not the evidence of Pitor Konarski could reasonably be believed by the respondent’s disciplinary authorities in the decision-making process when set against and when challenged by the evidence of the other witnesses, especially Mariusz Stachurski.

13. In his initial statement to Robert McBride, Pitor Konarski was quite categorical in that, firstly, he had been summoned to the canteen by Mariusz Stachurski and, secondly, that he had then seen the claimant pouring water from a bottle into the microwave. It was Robert McBride’s task to gather the evidence and he did so by interviewing any potential witnesses identified by Pitor Konarski. There was no corroboration to the extent that the other witnesses, save Mariusz Stachurski where, as it were “neutral”, in that they did not see anything of material significance to that particular issue of evidential conflict. Mariusz Stachurski directly challenged the evidence of Pitor Konarski stating that he did not summon Pitor Konarski to the canteen. In determining credibility, the various persons tasked with conducting the disciplinary and the appeal process stages made their respective assessments upon this central issue of whether or not Pitor Konarski ought reasonably to be believed in his categoric statement as to what had transpired and what he had witnessed.

14. In determining how the respondent conducted this task, it must be said that the respondent company carried out a very thorough investigation in the case, which investigatory process continued from the start to the end of the procedure. The tribunal particularly noted the conduct of Ivan Mitchell and Joe Doyle who re-interviewed the various witnesses and took considerable care to establish and to re-check various elements of the evidence available. Whilst there was no corroboration of the evidence of Pitor Konarski, it is certainly quite permissible for any employer to rely on uncorroborated evidence provided that the investigation in general terms is properly compliant with the principles stated in Burchell and that it is fair and reasonable to accord the degree of credibility which the respondent afforded to Pitor Konarski’s evidence. The reason stated by the respondent for the evidence of Pitor Konarski being preferred is that, after further investigation, the decision-makers believed it to be credible notwithstanding the lack of corroboration and, indeed, the denial on the part of Mariusz Stachurski that he had called Pitor Konarski to the rest room. The decision of the respondent in that regard seems to have been in part grounded upon the claimant being unable to offer any compelling reason as to why Pitor Konarski might have had any motivation to portray the events in an untruthful fashion. Certainly, as far as the respondent was concerned, there was no compelling evidence of any “bad blood” between Pitor Konarski and the claimant.

15. This is not a case were the employer carried out a deficient investigation in general terms. The investigation process throughout its various stages was conducted in a detailed and thorough fashion by the interviewing and re-interviewing of the various witnesses and the checking and re-checking of factual information. It is the case that the microwave equipment was not subject to inspection and testing by a qualified person. That, of itself, in the tribunal’s view, does not fatally undermine or make significantly inadequate or deficient the investigation, when it is borne in mind that the central focus of the investigation was whether or not the claimant had, on the date in question, deliberately poured water into the microwave oven, or whether the respondent ought reasonably and properly to accept the claimant's explanation that he had accidently spilled a cup of water over the equipment when he was searching for his lunch box.

16. Returning therefore to the three elements mentioned in Burchell that require to be examined by the tribunal, the respondent’s submission was that the quality and nature of the respondent’s investigation has properly to be examined “in the round”, when one looks at the case as a whole. Examining that suggestion, the tribunal notes that this is a case where, after the initial disciplinary hearing and determination of the disciplinary outcome, somewhat unusually, there took place a further, two-stage, appeal process. At each further stage in that process, there was what in effect amounted to a re-hearing, with further examination of the available witness evidence and the re-interviewing of any material witnesses. These further stages were conducted by persons at a senior level within the respondent’s organisation who had not been involved in any manner in the matter at any earlier stage. Thus these further decision-makers were afforded the opportunity to take an independent view of the case in the light of the available material.

17. Looking at all of the stages of the process, as a composite process, the tribunal’s assessment is that, firstly, the respondent has established that it believed that the claimant was guilty of the misconduct alleged. This misconduct was the act of deliberately pouring water into a microwave oven and thereby causing serious risk to health and safety. Furthermore, the tribunal’s assessment is that, based upon the nature and extent of the investigation, the respondent had reasonable grounds for harbouring this belief. The third element of Burchell is, of course, an essential one. Here the process of investigation, seen in its entirety, was fair and reasonable given all the circumstances of the matter. In particular, any failure technically to inspect the equipment does not detract from the fairness and reasonableness of the investigation, given that the investigatory focus was upon alleged misconduct resulting in a material and significant risk to health and safety that was connected with the allegation of an employee intentionally pouring water into a microwave oven, not whether the equipment had actually been physically damaged by this alleged conduct.

18. If there was a degree of imprecise framing of the charges in the earlier stage of the process, that was clarified as the process continued. At the concluding stage it is manifestly the case that Joe Doyle focussed in upon the clear and defining issue in the case and conducted the matter fully and compliance with the various elements enunciated in Burchell. At the conclusion of the guidance provided by Arnold J in Burchell the following words appear:- “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. “

19. The tribunal also wishes to comment on the application of the Iceland “band of reasonable responses” test and its applicability to the decision to dismiss the claimant both at the first stage and also in the affirmation of that decision in the course of the two subsequent appeal stages. There have been a number of challenges made in submissions on the claimant's part to the procedural fairness attaching to the respondent's conduct of the matter. It has been contended for the claimant that the translation services provided in the early stages of the hearing were not adequate, especially at the initial investigatory stage and that the translator provided, Konrad Slawinski, did not make a faithful and accurate translation of the claimant’s initial account of events. This contention, for example, relates to the recording made to the effect that the claimant had looked “behind” the microwave (which the claimant states ought to have been translated that he looked “inside” the microwave). There are also procedural deficiencies alleged, as far as the claimant's case goes, in that it is claimed that the original witness statements were not provided to the claimant and to his Trade Union representative at the initial disciplinary hearing stage. For his part, Geoff West maintained in his evidence that these documents were available to the claimant and to his representative, Sean Smyth. Irrespective of whether or not that is the case, procedural deficiencies or technical shortcomings can be cured in the course of a subsequent appeal process provided that the appeal of itself constitutes a proper and a fair re-visiting of and re-engagement with the salient issues in the matter. In this instance there was, it must be said somewhat unusually, two further appeal stages provided by contract from the original disciplinary decision to dismiss the claimant. At both of these appeal stages, there was, in the tribunal's view, a full and a fair hearing afforded to the claimant, with the benefit of full Trade Union representation, at which hearing all of the arguments were permitted to be advanced. These arguments and contentions, in the tribunal's determination, were fully and thoroughly considered by the two decision-makers conducting the two further and separate stages of the appeal process, these being persons who had not been involved in the process at any stage up to that point. The tribunal has no reason to believe that these persons were influenced or tainted by anything which had transpired prior to that stage nor that they did anything other than bring to bear a proper, professional and objective scrutiny of the material issues and of the evidence.

20. The other issue which might potentially cause the matter to fall outside the band of reasonable responses of a reasonable employer relates to the alleged inconsistency of approach contended to exist of the part of the respondent in this case. In submissions on behalf of the claimant, it has been argued that the conduct of Pitor Konarski, as supervisor, is indeed more culpable than that of the claimant. This particular submission makes the case that the claimant had accidently spilt a cup of water on the microwave; he had taken reasonable steps to clean up the spilled water and to check that the microwave was operational, before leaving the premises at the end of his shift. It is contended that Pitor Konarski also witnessed the matter and he also checked that the microwave was in working order. Pitor Konarski then left the respondent's premises and he did not decommission the equipment nor leave any sign warning persons of any potential danger. Pitor Konarski reported the matter the next day to his supervisor, Robert McBride. Then, it seems, steps were taken to decommission the microwave by removing the fuse. It is argued that the conduct of Pitor Konarski is even more culpable than that of the claimant and yet the evidence was that Pitor Konarski did not face disciplinary proceedings but rather was given health and safety training instead, whereas the claimant was dismissed. It is submitted for the claimant that the situations of both the claimant and Pitor Konarski are identical and yet the treatment of the two by the respondent is entirely different. The case of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 is submitted on behalf of the claimant to provide guidance to the tribunal in that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in any particular case, that it was not reasonable for the employer to treat the particular employee’s conduct as properly attracting the penalty of dismissal when some lesser penalty would have been appropriate in the circumstances.

21. The tribunal does not accept the foregoing submission. This is for the reason that the respondent did harbour a reasonably held belief that the claimant had deliberately poured water on or into the equipment. That contrasts very much with the situation of Pitor Konarski. Furthermore, the incident took place at the very end of a working day when all employees apparently where leaving to go home and Pitor Konarski did indeed report the matter the following day to his supervisor, whereas there is no evidence that the claimant at any stage reported the matter, which only emerged, as far as management was concerned, as a result of Pitor Konarski’s report. The situations, respectively, of Pitor Konarski and of the claimant are therefore quite distinguishable. This is thus not a case in respect of which the tribunal can accept the argument on the foregoing grounds.

22. The claimant's submissions have included a detailed analysis of various elements of the evidence of Pitor Konarski and that of the claimant. It is maintained in submissions that the claimant’s evidence has been at all times clear and consistent, which it is stated is in contrast to that of Pitor Konarski. The claimant's case is that the justification for the respondent preferring the evidence of Pitor Konarski over the claimant’s version of events is unsustainable. The tribunal does not accept the contention and determines that the respondent's acceptance of the credibility of the evidence of Pitor Konarski is a perfectly permissible response to the material that was before of the respondent at the various stages of the disciplinary and appeal process. The additional submission has been made for the claimant that there is no contemporaneous evidence of the persons engaged in the disciplinary hearing and appeal process properly addressing their respective minds to reasonable alternatives to the dismissal of the claimant as a sanction. Whilst there is no express mention of consideration of possible alternative sanctions in any of the three letters confirming the outcomes of the various stages of the process, the tribunal has heard and noted the evidence of the decision-makers engaged with the process that in each case and at the stage proper consideration was given to potential alternatives to dismissal. However, the matter was viewed as being so serious that trust and confidence in the claimant’s performance as an employee (especially so taking account of the existence of a final written warning) was so damaged that dismissal was the only fair and reasonable response. The tribunal does accept that the respective disciplinary and appeal decisions were taken in each case in the proper context and in consideration of the potential options available to the decision-maker in each case, including any possible sanction less than dismissal.

23. In assessing the fairness of the decision to dismiss and the upholding of that decision, after what constituted in effect a re-hearing at each stage of the two-stage appeal process, the tribunal's unanimous determination is that, taken as a whole, the disciplinary and appeals process and the decision to dismiss the claimant under these circumstances and in the light of the information available to the respondent at the material time, fell within the band reasonable responses of a reasonable employer. The tribunal notes that, in order to determine the dismissal to be unfair, the conclusion would have to be drawn, upon objective assessment by the tribunal, that no reasonable employer would have taken the decision to dismiss the claimant, given the evidence and the other material that was present before the employer at the time of the decision being taken by the respective decision-makers at the various stages of the process. The tribunal recognises (as did the courts in settling the principles which guide this tribunal) that there is a broad range of permissible responses to any given factual situation, in which one employer might reasonably have dismissed and another might have taken a different course. Assessing all of the evidence in this case and the determined facts, and taking full account of all elements of the respective submissions made to the tribunal, and applying the statutory provisions to the facts in the light of the guidance to be derived from the cases cited an argument, the tribunal’s unanimous determination is that the respondent’s decision in this case did fall within the band of reasonable responses of a reasonable employer; accordingly dismissal is fair.

24. That being the case, and in the absence of any compelling case as to how the matter might stand to be concluded with a finding in favour of the claimant upon the breach of contract the claim alone, the decision of the tribunal is that the claimant’s case must fail in its entirety and the claim is thus dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 14 April 2010, Belfast.

Date decision recorded in register and issued to parties: