Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/7464_09IT.html
Cite as: [2010] NIIT 7464_9IT, [2010] NIIT 7464_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7464/09

CLAIMANT: Steven Martin

RESPONDENT: Arnotts (Fruit) Limited

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed and it dismisses the claimant’s claim of unfair dismissal.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Mr P Kearns

Mrs M O’Kane

Appearances:

The claimant was represented by Mr Peter Martin of Martin Consulting.

The respondent was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

1. The claimant complained in his claim that he was unfairly dismissed by reason of misconduct which he denied, that there was insufficient evidence of the alleged misconduct against him, that a fair procedure was not followed and that the decision to dismiss him was disproportionate action for the alleged misconduct.

2. The respondent resisted the claimant’s claims and asserted that it had fairly dismissed the claimant for smoking while driving a company vehicle, which is regarded as major misconduct by the respondent, the claimant having recently received a final written warning for a similar offence.

ISSUES

3. In determining the question whether the claimant was unfairly dismissed by the respondent the following issues were before the tribunal:-

(i) Has the respondent shown the reason for dismissal?

(ii) Was it for a reason relating to the conduct of the claimant?

(iii) Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal? That is:

· Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief?

· Did the respondent carry out as much investigation into the matter as was reasonable in all the circumstances?

· Was the misconduct in question a sufficient reason for dismissing the employee?

EVIDENCE

4. The tribunal considered the claim, response, agreed bundle of documentation, heard oral evidence from Mr William Orr, Managing Director of the respondent company, Mr John Geary a HR consultant retained by the respondent, and from the claimant.

FINDINGS OF FACT

5. The respondent supplies fruit, vegetables, bread and milk to the catering industry.

6. The claimant was employed by the respondent as a driver between 1 October 2007 and 31 August 2009.

7. On 6 August 2009 the respondent issued the claimant a final written warning for smoking in a company vehicle on the 1 August 2009 contrary to company rules and government legislation, for which the claimant and respondent could both have been prosecuted and heavily fined. The final written warning was set out in a letter to the claimant dated 6 August following a disciplinary interview which took place earlier that day attended by Mr Orr, Mr Robert Hume who was the respondent’s distribution manager and the claimant’s direct manager, and the claimant. The letter in particular advised the claimant that ‘should this happen again you will be dismissed from the company’ and also ‘you have the right to appeal this decision by writing to Mr Geary…’. The claimant signed to acknowledge receipt of the respondent’s letter on 6 August 2009 and did not exercise his right of appeal.

8. On Friday 21 August 2009 Mr Orr received a telephone call from Mrs Anne Campbell, catering manager of the North Eastern Education and Library Board, one of the respondent’s major customers. Mrs Campbell asked Mr Orr the respondent’s policy on smoking, he responded that it was not permitted and Mrs Campbell then informed him that she had witnessed a driver smoking in one of the respondent’s vans. Mr Orr enquired where and what the vehicle registration was, Mrs Campbell told Mr Orr the vehicle registration was SEZ 4766 and that she was on the road from Larne. Mr Orr asked Mrs Campbell was she sure of what she had seen at which point Mrs Campbell asked Mr Orr to hold on and to his understanding moved her car closer to the respondent’s vehicle and then reported to Mr Orr that she had seen the driver flick cigarette ash out of his window. Mr Orr asked Mrs Campbell to put in writing to him what she had seen and told her that he would investigate the matter further.

9. Immediately after his call with Mrs Campbell Mr Orr telephoned Mr Hume and asked him to investigate the matter that Mrs Campbell had just reported.

10. Mr Hume rang the claimant who was the driver of the vehicle Mrs Campbell had reported and told him that he had been seen smoking in the van, the claimant replied that he was not because it was only two weeks after he was seen smoking in another van.

11. When the claimant returned to the respondent’s store shortly after their telephone conversation, Mr Hume asked the claimant what he had been doing if he was not smoking, the claimant responded that he had a pen lid in his mouth, not a cigarette. Mr Hume informed the claimant that Mr Orr would like to see him to ask him about what had happened.

12. Mr Hume rang Mr Orr back following his discussion with the claimant and let him know that the claimant had denied smoking in his van and had said that he had had a pen lid in his mouth.

13. On Monday 24 August 2009 Mr Orr received an email from Mrs Campbell which set out;

‘Following an incident I witnessed on Friday 21 August 2009 at 12.50 approximately while travelling from Larne to Ballynure I am very concerned as to your company’s no smoking policy which forms part of your contract with N.E.E.L.B.

A[n] Arnotts vehicle registration number SEZ 4766 was directly behind me for most of the journey from Larne in the direction of Belfast.

I became aware that the driver of this vehicle was in fact smoking a cigarette while the vehicle was in motion. This was totally confirmed at the roundabout in Ballynure when I was in the outer lane and your vehicle drew alongside mine in the inner lane, as we waited for traffic on the roundabout to clear your driver flicked the ash from the cigarette out of his window in the direction of my vehicle! ……..’

14. The respondent sent the claimant a letter on 25 August 2009 requiring him to attend a disciplinary interview on 28 August 2009 at which the question of disciplinary action against him in accordance with the respondent’s disciplinary procedure would be considered with regard to him smoking in a company vehicle on 21 August 2009 at approximately 1.10 pm. The claimant was advised that in view of the fact that he already had on file a Final Written Warning on
6 August 2009 for smoking in a company vehicle on 1 August that the outcome of the disciplinary interview could be his dismissal from the company and was also advised of his right to be accompanied at the interview.

15. The disciplinary interview was re-organised and instead took place on
29 August 2009, it was conducted by Mr Orr, Mr Hume was present and the claimant who chose not to be accompanied. At the start of the meeting Mr Orr read out Mrs Campbell’s email to the claimant and asked him what he had to say as this was a serious offence second time around. The claimant denied smoking stating that since his final warning he never took tobacco or cigarettes into the van, he then produced an electronic cigarette and showed Mr Orr how it worked. Despite the claimant having previously told Mr Hume at the time that he had a pen top in his mouth and not mentioned or produced the electronic cigarette, Mr Orr decided it was appropriate to adjourn the interview to allow him to speak again with Mrs Campbell in view of the claimant’s explanation to again check what she had reported.

16. Mr Orr spoke with Mrs Campbell on 31 August 2009 to again ask if she was sure as to what she had reported in view of the claimant’s explanation, in response Mrs Campbell asked him to read her email out to her, especially the third paragraph referring to the driver flicking ash out of his window in the direction of her vehicle. Mrs Campbell informed Mr Orr that what the driver had in his hand was not an electronic cigarette but what appeared to be a small cigarette similar to a ‘roll your own type, much thinner’.

17. The disciplinary interview was reconvened on 31 August 2009. The claimant was again given the opportunity to be accompanied but declined. Mr Orr confirmed to the claimant that he had spoken to Mrs Campbell and that she had confirmed that the driver was definitely smoking and that there was no way that it could have been an electronic cigarette. The claimant appeared shocked and again denied smoking. Mr Orr then put to the claimant that when he was first spoken to by Mr Hume on 21 August 2009 he had stated that it was a pen top in his mouth. Mr Orr asked the claimant why he did not mention the electronic cigarette, the claimant replied, that was what he had meant, the ‘pen top thing’, meaning the electronic cigarette. Mr Orr informed the claimant that he believed that he had been smoking in the vehicle on 21 August 2009 and had no alternative but to dismiss him with pay in lieu of notice based on the evidence that he had been seen flicking ash out of the window from feet away, he had referred to a pen top at first, that no mention was made of the electronic cigarette to Mr Hume, that the claimant had a previous final written warning for smoking and that he had been seen and reported by a credible witness.

18. The outcome of the disciplinary meeting and confirmation of dismissal was sent to the claimant by letter dated 1 September 2009 from Mr Orr and the claimant was advised of his right of appeal to Mr Geary. The claimant did not receive the letter and so a further copy was delivered by hand to him on 7 September 2009.

19. The claimant wrote a letter on 9 September 2009 to Mr Geary appealing the decision to dismiss him denying that he was smoking as he was fully aware of the company rules and the law on the matter. He stated that after he received his first warning on this point he had purchased an electronic cigarette and used it occasionally in the cab of the vehicle, which to the best of his knowledge was neither against company rules nor the law. The claimant stated that he could only imagine that Mrs Campbell had seen him using the electronic cigarette.

20. The claimant wrote a second appeal letter to Mr Geary on 16 September 2009 stating that he felt, ‘… that I have been treated very unfairly in the way in which the disciplinary hearing and subsequent decision to dismiss me have been handled.’

I have also been advised, legally, that I am being denied a fair and independent appeal hearing as Mr Orr made the decision to dismiss me and he is the Managing Director and more senior than you. For the record, I attach a document setting out my reasons for appealing the dismissal decision and wish you to consider carefully all these points, in addition to the points to be made by me, at the hearing today, before making a decision.

Finally, and for the avoidance of doubt, I repeat that I was not breaching Company rules and was not smoking any type of tobacco on Friday 21 August. The evidence to the contrary is not credible and does not justify, on the balance of probabilities, the finding reached by Mr Orr and Mr Hume……’

The claimant then set out the following points:

‘1. I was not smoking in the cab and explained at the original hearing that I was using an electronic cigarette. This is not against Company rules and I had learnt my lesson about not smoking in the cab.

2. The allegation and claims to the contrary are not credible, as a car driver does not have a clear view of my driving of a Company vehicle at any time but particularly in the circumstances described by Mrs Campbell.

3. To be dismissed for allegedly smoking in the cab is disproportionate; as such misconduct is not gross misconduct. My employment and disciplinary history do not merit dismissal, for such conduct but I was not smoking and have always denied this.

4. The original hearing was procedurally unfair and contrary to the rules of natural justice in the following respects:-

a) I was not provided with sufficient details of the allegations and grounds for requiring my attendance before such hearing and was not given the opportunity to challenge, face to face, the claims of the person who claims that she had a clear view of my smoking.

b) As the owner and MD, it is inappropriate that Mr Orr chaired this hearing.

c) As there was a clear conflict of evidence, between two persons, this is not sufficient to warrant the finding that I was smoking.

5. This appeal hearing is also procedurally flawed, as you are answerable to Mr Orr and, thus, I have been denied the right to a fair and independent hearing and appeal. I have also been denied legal representation, for such an important matter.

6. A proper consideration of all these points clearly shows that the dismissal was unfair and should be rescinded.’

21. The respondent’s Company Disciplinary Policy at point 10 therein, provides that an appeal hearing shall be heard by the MD, the respondent however in practice had changed this procedure in recent years and since then Mr Orr had dealt with employee’s disciplinary hearings and an independent person was brought into deal with appeal hearings.

22. Mr Geary had on previous occasions dealt with appeal hearings for the respondent and when he considered it appropriate had overruled Mr Orr’s decision, as it was his view that it was better to do so, than to leave his client exposed to the possibility of tribunal proceedings and a financial penalty where he felt that a decision made was not appropriate.

23. An appeal hearing took place on 16 September 2009 conducted by Mr Geary at which each of the points raised by the claimant in his two appeal letters were discussed with the claimant.

24. Following the appeal hearing Mr Geary wrote to the claimant on 16 September 2009 rejecting his appeal and setting out his reasons in relation to each of the points as had been discussed with the claimant at the appeal hearing and had been raised in the claimant’s two letters of appeal. Mr Geary in particular explained to the claimant that he had been given authority to overrule Mr Orr’s decision if he decided it was appropriate, also that he was not employed by the respondent or by Mr Orr, under a contract of service and considered it entirely appropriate that he conduct the claimant’s appeal. Mr Geary outlined the claimant’s statutory rights and detailed how he had been afforded these, that he had been informed of the allegations prior to him attending any disciplinary hearing, given the right to a fair hearing, right to be accompanied and right of appeal. Mr Geary confirmed his finding that the respondent had carried out a full investigation into the allegation against the claimant, and noted that in respect of the points made by the claimant on appeal that he had explained to Mr Hume he had a pen top in his mouth, but did not mention an electronic cigarette. Mr Geary rejected the claimant’s assertion that Mrs Campbell could not have seen him in his cab from her driving position in her vehicle and drew to his attention that he was already in receipt of a final written warning for smoking in his van in response to the point that dismissal was not appropriate action.
Mr Geary confirmed his finding that the claimant was given sufficient details of the allegations against him before the disciplinary hearing and put to him that he believed that where there is conflicting evidence an employer is justified in reaching a decision on a balance of probabilities. Mr Geary found that Mr Orr’s decision on the evidence was appropriate and within a band of reasonable actions open to him and on this basis rejected the claimant’s appeal.

THE LAW

25. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

26. Article 130(1) provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or, if more than one, the principle reason) for the dismissal, and

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

27. Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

28. Under Article 130(4) where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

29. It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods-v-Jones [1983] ICR17, such that;

1. The starting point should always be the words of Article 130(4).

2. In applying the Article an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair.

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 from 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.

30. In the context of a misconduct case Arnold J in British Home Stores-v-Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion”.

APPLICATION OF THE LAW TO THE FACTS FOUND

31. Submissions were made on behalf of the claimant that he was unfairly treated in circumstances when he was not in fact smoking, that evidence would suggest that he was not smoking, that the claimant had learnt his lesson from the previous incident for which he had received a final written warning as a result of which he began to carry an electronic cigarette, that the only evidence available to the claimant was from an important customer which it was not surprising that the respondent given weight to .Also, that on the facts the decision reached was wrong ,that Mrs Campbell would not have had a clear view of the claimant as a car driver, that the claimant had given evidence that the roundabout had been clear and that he had moved on through the roundabout and had not stopped as suggested by Mrs Campbell. It was further submitted that the disciplinary and appeals procedures were unfair in that the letter to the claimant did not adequately set out the case to be answered, that he was not provided with sufficient written reasons for the disciplinary investigation, that it was not appropriate for the respondent’s managing director to convene the disciplinary meeting, that this was contrary to the respondent’s policy, that it was not appropriate for the appeal to have been decided by only one person, that Mr Geary was not totally independent and that on a proper consideration of the facts the claimant’s appeal should have been upheld.

32. Submission were made on behalf of the respondent that the task before the tribunal is as set out in the remarks of Arnold J in British Home Stores and helpfully summarized at Para 21 of Patrick Joseph Rogan v South Eastern Health and Social Care Trust [2009] NICA and submitted that the respondent had a belief in the particular misconduct, that it has reasonable grounds upon which to sustain the belief and had carried out as much investigation into the matter as was reasonable in the circumstances, that the claimant had a final written warning and that the decision to dismiss was fair in the circumstances.

33. It is quite clear that it is not the tribunal’s role to retry the allegation of misconduct against the claimant, nor to consider whether we personally think that dismissal was fair, or to substitute our decision as to what was the correct course for that of the respondent, but to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

34. The burden of proof is on the respondent to establish the reason for the dismissal and that it was for a reason relating to the conduct of the claimant. The tribunal if satisfied as to the reason must next decide whether the respondent acted reasonably in treating the conduct as a sufficient reason for the dismissal, that is, whether the dismissal was procedurally fair and within a range of reasonable responses, taking into account all the circumstances including the size of administrative resources of the employer’s undertaking, and equity and substantial merits of the case. In deciding this the tribunal must consider whether the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief, whether the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances when he formed that belief on those grounds, and whether the misconduct in question was a sufficient reason for dismissing the employee.

35. On consideration of all the evidence before it the tribunal find that the respondent has established that the genuine reason for the claimant’s dismissal was misconduct which is a potentially fair reason for dismissal.

36. The tribunal is satisfied that the respondent conveyed to the claimant details of the allegation made against him by Mrs Campbell, via Mr Hume within a very short time of the report actually having been made to Mr Orr, giving him adequate opportunity then to respond, and again shortly afterwards on the claimant’s return to the respondent’s premises. The tribunal is satisfied that the claimant was made sufficiently aware of the respondent’s reasons for investigation and of the case that he was being asked to answer and note that the contents of Mrs Campbell’s email were read out to the claimant at the beginning of the disciplinary meeting.

37. Whilst the respondent’s written policy document provides for appeals to be dealt with by its MD, the tribunal find the respondent’s evidence credible that it had in recent years changed this practice so that Mr Orr dealt with all disciplinary hearings and where required brought in an independent person to deal with appeals, it notes that the claimant’s recent prior disciplinary proceedings followed this new practice, and whilst it would have been preferable to formally update employees as to the new practice, the tribunal is not persuaded that it was inappropriate in the circumstances for Mr Orr as MD to conduct the claimant’s disciplinary meeting, or, that the claimant has been prejudiced in this regard.

38. The tribunal found Mr Geary’s evidence credible that he was not influenced in his dealing with an appeal against Mr Orr’s decision in the matter by virtue of him being MD in the respondent company and accept his evidence that if he felt that a decision by Mr Orr was not appropriate that he was quite prepared to overturn it rather than expose his client to possible tribunal proceedings and financial penalty. The tribunal is not persuaded as such that the claimant’s disciplinary and appeal hearings were procedurally unfair nor that the appeal was unfair by reason of it being conducted and decided upon by one rather than two people.

39. Given the respondent’s evidence, which the tribunal finds credible the tribunal is satisfied that the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and had reasonable grounds upon which to sustain that belief, set out by Mr Orr as the claimant having been seen and reported by Mrs Campbell, who Mr Orr considered to be a credible witness, that the claimant was seen flicking ash from feet away, did not mention the electronic cigarette to Mr Hume when first questioned but said that he had a pen lid in his mouth.

40. The tribunal finds that the respondent at the stage at which he formed the belief that the claimant, in Mr Orr’s words on a balance of probabilities, guilty of the alleged misconduct, that the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances, it notes in particular that the respondent adjourned the disciplinary meeting to allow further enquiry to be made of Mrs Campbell and whether she was sure as to what she had seen in light of the explanation then given by the claimant that

he was using an electronic cigarette .The tribunal is in all the circumstances satisfied that the investigation carried out by the respondent, the disciplinary and appeal hearings were all procedurally fair.

41. In consideration of whether the misconduct in question was a sufficient reason for dismissing the employee, in light of the claimant already having a current final written warning in respect of smoking in a company vehicle the tribunal are satisfied that applying the objective standards of the hypothetical reasonable employer that the respondents decision to dismiss was a sufficient reason for the claimant’s dismissal and in all the circumstances falls within a band of reasonable responses and finds the claimant’s dismissal by the respondent fair.

CONCLUSION

42. It is the tribunal’s unanimous finding that the respondent has shown that the reason for dismissal was misconduct, that the claimant’s dismissal was procedurally fair, that the respondent’s decision to dismiss the claimant fell within a band of reasonable responses which a reasonable employer might have adopted and as such that the respondent acted reasonably in all the circumstances including the size and administrative resources of the respondent’s undertaking, in treating the claimant’s misconduct as a sufficient reason for dismissing the claimant, in accordance with equity and the substantial merits of the case and that the dismissal of the claimant by the respondent is fair under Article 130 of the 1996 Order. The claimant’s claim of unfair dismissal against the respondent is accordingly dismissed.

Chairman:

Date and place of hearing: 19 April 2010, Belfast.

Date decision recorded in register and issued to parties: