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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Braniff v Wastebeater Recycling [2010] NIIT 79_10IT (09 November 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/79_10IT.html
Cite as: [2010] NIIT 79_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 79/10 IT & 80/10 IT
CLAIMANTS: Joseph Braniff and James Braniff
RESPONDENT: Wastebeater Recycling
DECISION
The unanimous decision of the tribunal is that the claimants were not unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr I Wimpress
Members: Ms N Wright
Mr T Martin
Appearances:
The claimants were represented by Mr Brian Sullivan.
The respondent was represented by Mr Thomas Sheridan of Peninsula Business Services Limited.
The claim and the response
1. The claimants both brought claims of unfair dismissal arising from the termination of their employment with the respondent on 21 October 2009. The claimants’ grounds for complaining of unfair dismissal were set out in identical terms in their claim forms. In its response, the respondent denied that the claimants were unfairly dismissed and alleged that the claimants were fairly dismissed for gross misconduct.
Sources of Evidence
2. The tribunal received bundles of documents from the claimant and the respondent and heard oral evidence from Mr Thomas Reynolds, Mr Kieran Byrne and both claimants. The tribunal also viewed a DVD recording of the incident which led to the dismissal of the claimants.
The Facts
3. The respondent operates a waste management and recycling business. Joseph Braniff was employed by the respondent as a HGV Class 2 Waste Collector and James Braniff was employed as a General Operative and Driving Assistant. Joseph Braniff is James Braniff’s uncle. They worked as a team comprising a lorry driver and a lorry helper.
4. On Friday, 9 October 2009, the Respondent’s Managing Director, Mr Kieran Byrne was informed that a private surveillance team had observed two persons siphoning off diesel fuel from their assigned waste collection vehicle at Springhill Drive, Belfast. The surveillance team was not engaged by the respondent and came across this activity by chance. It agreed to provide the respondent with a DVD recording of the incident. The DVD included a recorded commentary by the surveillance team on the events that were observed by them. The DVD was viewed by Mr Byrne and he identified the claimants as the operatives involved. Mr Byrne decided that the matter should be dealt with by the Operations Manager, Mr Reynolds rather than himself. Mr Reynolds had known Joseph Braniff for twenty years and also had known James Byrne for five years. Mr Reynolds did not wish to see either claimant dismissed and realising that things looked bad for the claimants persuaded Mr Byrne to allow him to see if they would voluntarily resign rather than go through the disciplinary process.
5. To this end Mr Reynolds spoke with Joseph Braniff at the end of the working day on Friday, 9 October 2009. Mr Reynolds told Mr Braniff that he had been videoed siphoning diesel from his work vehicle and invited him to resign in order to prevent police being involved. Mr Braniff declined the offer and Mr Reynolds therefore told him that it would have to go to formal proceedings. Mr Braniff was not shown the video at this stage. Mr Braniff was annoyed that someone had taken a video of him and he got into his car and went home.
6. When James Braniff finished work on Friday, 9 October 2009 he received a phone call from Joseph Braniff that he was being accused of stealing diesel and was being asked to resign. James Braniff phoned in sick on the Monday. On Tuesday, Mr Reynolds took James Braniff to one side and told him that he was being suspended on full pay pending investigation. Mr Reynolds did not tell James Braniff what it was about but he was already aware what it concerned as he had already been told by his uncle. James Braniff asked to see the evidence and Mr Reynolds told him that he would be shown the DVD at a later date.
7. On Monday, 12 October 2009, Mr Reynolds spoke with Joseph Braniff and told him that he was being suspended on full pay pending an investigation into allegations that he had been involved in the theft of diesel from the respondent. He also told Joseph Braniff that there was a DVD of the incident which he would have an opportunity to view at a later stage and that he would be informed of his suspension in writing. According to Joseph Braniff, Mr Reynolds was rather brusque and requested his vehicle keys, work mobile and fuel card and referred to there being a DVD of him stealing diesel. He also told him to take his belongings out of the lorry. Mr Braniff claimed that Mr Reynolds told him that he wanted him to resign and if he resigned he would not get the police in. Joseph Braniff told Mr Reynolds that he stole no diesel. Mr Reynolds responded that if he stole the diesel he should just walk away. Joseph Braniff again denied stealing diesel and said that he was going to see his solicitor. The detail of this conversation was not put to Mr Reynolds. It does not in any event impact on the issues that we have to consider. Mr Reynolds intended to speak with James Braniff on 12 October as well but was unable to do so as he had phoned in sick.
8. On 13 October 2009, Mr Reynolds wrote to Joseph Braniff and confirmed that he was being suspended on full pay pending an investigation. In the same letter, Mr Reynolds invited him to attend a disciplinary hearing on 19 October 2009 at 10.00 am. Mr Reynolds further advised that the matter of concern was that he had been observed removing diesel from a company vehicle without authorisation. The claimant was also advised of his right to be accompanied by either a trade union representative or a fellow employee and to have witness statements from fellow employees. Finally he was invited to view the DVD prior to the hearing.
9. Mr Reynolds wrote to James Braniff in similar terms on 14 October 2009. The only material difference in the letter was that the disciplinary hearing was to be conducted at 11.00 am on 19 October 2009. Mr Reynolds also sent a separate letter to Joseph Braniff on 14 October 2009 in which he recorded that Joseph Braniff had agreed to resign at the meeting with Mr Reynolds on 12 October 2009 and stated that he required to have his resignation in writing by 19 October 2009 otherwise a formal disciplinary hearing would be arranged. This stipulation was insisted upon by Mr Byrne as a condition of accepting the claimants' resignations. Neither claimant availed of the opportunity to view the DVD in advance of the disciplinary hearing.
10. Joseph Braniff’s disciplinary hearing took place as scheduled on 19
October 2009. The record of the hearing which was not disputed described Mr Reynolds as the chair and Mr John Byrne, the General Manager, as an attendee. The capacity in which Mr Byrne attended was not specified but the clear implication was that he was part of a two man panel chaired by Mr Reynolds. In his evidence to the tribunal Mr Braniff complained that his brother Paul Braniff was not allowed to give evidence at the hearing. However, Mr Braniff accepted that he did not ask the panel to hear evidence from his brother and simply assumed that his brother would be permitted to give evidence. Be that as it may no request was made for Paul Braniff to give evidence and there was clearly no legitimate basis for his attendance in any other capacity. Mr Braniff claimed that he did not believe that he would receive a fair hearing and thought that he would be better saying nothing until he had spoken to his solicitor.
11. The hearing was brief and the agreed contents recorded Mr Reynolds stating as follows:-
“We are here to investigate the claims as stated within your letter of 14th October 2009.
We note that you have chosen not to be accompanied in the meeting by a fellow employee or trade union representative despite the invitation to do so within the letter.
I must remind you that no decision will be made today but rather today's objective is to hear & consider your side of the story in light of the allegations and to establish the facts.
We will now go through each of the allegations individually as detailed in the invitation letter and give you an opportunity to respond to each."
The DVD recording was then viewed. Joseph Braniff asked Mr Reynolds if he was 100% sure it was diesel being taken from the lorry. Mr Reynolds made no reply and asked the claimant if he had anything else to add in response to this allegation. The claimant replied "No comment."
The hearing then concluded.
12. The disciplinary hearing in respect of James Braniff followed an identical format with Mr Reynolds setting the scene in identical terms. The DVD recording was again viewed. Mr Reynolds then asked the claimant if he could explain these actions and explain exactly what he was doing in the video footage. James Braniff replied, “My solicitor has advised me to say nothing." Mr Reynolds was not put off by this response and asked the claimant if he had anything else to add in response to this allegation to which the claimant answered "No".
13. On 21 October 2009, Mr Reynolds wrote to both claimants and advised them of his decision in respect of each of them. The letters were again in very similar terms. The critical part of each letter read as follows:-
"the matter of concern to me was that we had obtained video evidence which appeared to show diesel fuel being removed from a company vehicle without consent or authorisation. You were member of the team operating the vehicle at that time.
At the hearing the reasons you gave for your behaviour were not stated. You responded only by asking "are you 100% sure it was diesel being taken from the lorry?"
Having listened to your explanations I consider them to be unsatisfactory because you didn’t provide me with any explanation or clarification as to what you were doing in the video footage. You were not authorised to have the company vehicle in that location nor had you requested prior consent to be there.
As your actions amount to gross misconduct you are summarily dismissed and as such you are not entitled to notice or pay in lieu of notice"
The letter concluded by advising Joseph Braniff that he had the right of appeal against the decision to Mr Kieran Byrne.
14. The letter to James Byrne advised him that he was being dismissed for gross misconduct and that he had a right of appeal. The only material difference in the letter was the paragraph dealing with his disciplinary hearing which read as follows:-
"At the hearing the reasons you gave for your behaviour were not stated. You responded only by saying “my solicitor has advised me to say nothing."
15. Both claimants exercised their right of appeal in identically worded letters to Mr Kieran Byrne dated 26 October 2009 which read as follows:-
"I wish to inform you of my intent to appeal my dismissal on the grounds that the evidence provided was not conclusive proof that I was involved in any of the allegations of wrong doings made against me.
I believe I can provide you with a full and clear explanation as to why I was in that area on the morning stated, and that since our last meeting I have taken advice from a union representative who has advised me that I have the right of appeal on the grounds of unfair dismissal due to unsatisfactory evidence."
16. Mr Byrne replied to both claimants by letter dated 29 October 2009 and advised that he would hear their appeals on Thursday, 5 November 2009 at 10.00 am (James Braniff) and 11.00 am (Joseph Braniff) and that he would be accompanied by Mr John Byrne who would act as note taker but would not take part in the decision. Mr Byrne outlined what would happen at the hearing and advised the claimants of their right to be accompanied by a fellow employee or trade union official.
17. The claimants subsequently requested that their appeals be heard together and Mr Byrne sensibly acceded to this request. The claimants also requested that Mr Brian Sullivan be allowed to represent them. This was refused by Mr Byrne on the basis that Mr Sullivan was not an accredited trade union official.
18. The joint hearing proceeded on 5 November 2009. Mr John Byrne was again responsible for taking a note of the hearing. Mr Byrne’s note was not disputed and provides a clear account of what occurred. As recorded in the note, Mr Kieran Byrne attempted to start the hearing but was interrupted by the claimants who said that they were not accepting the appeal and just wanted to say their bit. They refused to follow the process and started to read out a written statement that they had brought with them. Mr Byrne reiterated the need to follow the appeal process and asked if he could first introduce and start the hearing. The claimants stated that they had been denied representation and did not accept or acknowledge the appeal hearing. Mr Byrne stated that they were not denied representation but that the person whom they requested was not legally entitled to be present as he was not a fellow employee or a current trade union member or official. The claimants refused to allow Mr Byrne to begin the hearing in the manner that he wished and continued to interrupt him. Mr Byrne explained that it was in everyone's interests to follow the process and that if they refused to follow the appeal format he would have no option but to stop the hearing. The claimants then stood up and said that they would be taking advice from the Labour Relations Agency and would be applying to an employment tribunal for unfair dismissal. The hearing then concluded.
19. Mr Byrne wrote to both claimants on 5 November 2009 and advised that the hearing was being reconvened on 11 November 2009. Mr Byrne rehearsed the events at the hearing on 5 November and reiterated that the claimants had the right to be accompanied by a fellow employee or trade union official. Mr Byrne concluded by advising the claimants that if they wished they could provide a written statement in lieu of attending the hearing and that they should let him know by 10 November.
20. Mr Sullivan wrote to Mr Byrne advising that he was a retired trade union official and that he felt that he could assist with the matter. Mr Sullivan drew attention to paragraph 118 of the guidance issued by the Labour Relations Agency that employers should be careful not to disadvantage workers for using their right to be accompanied or for bringing companions. Mr Sullivan pointed out that the term "accredited trade union official" did not appear in any of the guidelines and offered his own views as to what was meant by the term “companion”.
21. The claimants decided to take up Mr Byrne's offer to accept a written statement instead of attending the hearing. Their statement took the form of a short email which Mr Sullivan sent to Mr Byrne on 10 November 2009. The original email was not retained by either party but its contents were not in dispute.
22. As no further hearing of the appeal was required, Mr Byrne gave his decision in writing to each of the claimants by letter dated 12 November 2009. Mr Byrne’s decision was to dismiss the appeals. The letters were in identical terms and the contents of the email of 10 November 2009 were incorporated in Mr Byrne’s written decision in each appeal. After referring to Mr Sullivan’s email the letters continued:
“The basis of your appeal was as follows.
1. ‘Having never been advised that a union exists within the company in which they could participate they are not aware of anyone employed in the company who could be of assistance’
You were advised in the invite letter of your right to representation by either a fellow employee or trade union official, and it is your responsibility to arrange for either to accompany you at any formal hearing.
2. ‘The company prior to an appeal hearing taking place have failed to provide copies of alleged evidence showing the allegation taking place’
You were given the opportunity to come in and view the evidence prior to the hearing as per the invite to the disciplinary hearing letter dated 14th October 2009. You didn’t take the company up on this offer. Paragraph from original invite to disciplinary hearing letter, (‘I intend showing you the evidence we have obtained at the hearing, if you wish to view this prior to the hearing contact me to arrange’)
3. ‘and provided details of the person/s who were involved in the allegation for cross-examination’
The invite to disciplinary hearing letter gives you the opportunity to call any witnesses; you did not avail of this. Paragraph taken from the original invite letter (‘if there are any employees whom you feel could provide a witness statement which would help in investigating the allegations against you, then please contact me and I will arrange for them to be interviewed’)
4. ’The due process which was sent to us was quite clear and it was obvious that you had viewed the disc which we were only permitted to see at the disciplinary hearing’
This is not correct, you were given the opportunity to come in and view the evidence prior to the hearing as per the invite to the disciplinary hearing letter dated 14th October 2009. You didn’t take the company up on this offer.
I am now writing to confirm the decision taken by Tommy Reynolds on behalf of the company; that the dismissal be upheld for the above listed reasons and also the additional evidence presented does not provide me with any explanation or clarification as to what you were doing in the video footage. You were not authorised to have the company vehicle in that location nor had you requested prior consent to be there.
You have now exercised your right of appeal, under the company’s disciplinary procedure and the decision is final.”
23. As appears from the evidence outlined above neither claimant gave any account of their actions at any stage in the disciplinary process. Nor was an account provided in either claim form or in any correspondence. It was only when Joseph Braniff came to give his evidence in chief to the tribunal that an account emerged. In his evidence to the tribunal, Joseph Braniff stated that the reason for going to Springhill Drive was that James Braniff needed to collect his contact lenses from Martine Braniff who lived at that address. This proved impossible because she was not at home. Joseph Braniff attempted to contact Martine by phone but it was answered by his brother Paul in Ballynahinch. Paul Braniff then contacted Martine Braniff who told him that she had posted the contact lenses through her mother in law’s letter box in Ballymurphy Crescent the night before. In addition, while the claimants were in Springhill Drive Joseph Braniff decided to pick up stale water containers for his brother’s caravan. However, Paul Braniff told him while he was on the phone not to bother as he would have to pick up Martine and he would collect the containers himself. Mr Braniff therefore took the containers back to the driveway of the house and threw a hose pipe, which was part of the fittings, over the fence. According to Mr Braniff, he did not mention any of this at the disciplinary meeting because he did not believe that he would get a fair hearing. He was going to give this account to Mr Kieran Byrne at the appeal hearing. This was the “clear explanation” referred to in his letter of appeal. However, he did not do so because Mr Sullivan was not permitted to accompany him at the hearing. At no time did he consider writing out an account of his actions. In his evidence to the tribunal, Mr Braniff clarified that the statement that the claimants attempted to read at the appeal hearing was simply the contents of Mr Sullivan’s email of 10 November 2009. James Braniff also gave brief evidence which in essence agreed with Joseph Braniff’s account of the matter.
The Law
The right of an employee to be accompanied
24. The right of an employee to be accompanied at a disciplinary hearing is contained in Article 12 of the Employment Relations (Northern Ireland) Order 1999 (as amended by the Employment Relations (Northern Ireland) Order 2004) which provides as follows:-
12. - (1) This Article applies where a worker –
(a) is required or invited by his employer to attend a disciplinary or grievance hearing, and
(b) reasonably requests to be accompanied at the hearing.
(2A) Where this Article applies, the employer must permit the worker to be accompanied at the hearing by one companion who –
(a) is chosen by the worker; and
(b) is within paragraph (3).
(2B) The employer must permit the worker's companion to –
(a) address the hearing in order to do any or all of the following –
(i) put the worker's case;
(ii) sum up that case;
(iii) respond on the worker's behalf to any view expressed at the hearing;
(b) confer with the worker during the hearing.
(2C) Paragraph (2B) does not require the employer to permit the worker's companion to –
(a) answer questions on behalf of the worker;
(b) address the hearing if the worker indicates at it that he does not wish his companion to do so; or
(c) use the powers conferred by that paragraph in a way that prevents the employer from explaining his case or prevents any other person at the hearing from making his contribution to it.
(3) A person is within this paragraph if he is –
(a) employed by a trade union of which he is an official within the meaning of the Trade Union and Labour Relations Order,
(b) an official of a trade union (within that meaning) whom the union has reasonably certified in writing as having experience of, or as having received training in, acting as a worker's companion at disciplinary or grievance hearings, or
(c) another of the employer's workers.
The stipulations in Article 12(3) as to the identity of the companion are replicated at paragraph 106 of the Labour Relations Agency Code of Practice in relation to disciplinary and grievance procedures. Paragraph 118 of the Code of Practice reads as follows:-
“Employers should be careful not to disadvantage workers for using their right to be accompanied or for being companions, as this is against the law and could lead to a claim to a tribunal.”
Substantive unfairness
25. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-
“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,
(3) 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.”
26. In Dobbin v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal. The judgment of Higgins LJ reads as follows:
“[48]…The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.
[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –
‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the [Employment Protection (Consolidation) Act 1978] is 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.’
[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -
‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground 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 circumstance be a reasonable conclusion’.”
This passage was cited with approval by the Court of Appeal in its recent decision in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.
Procedural fairness
27. Article 130A of the 1996 Order makes provision in respect of procedural fairness as follows:
“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 I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to 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 an 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 that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or
failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”
28. Accordingly, if an employer wishes to dismiss an employee it must follow the statutory dismissal procedure. This is the minimum procedure which must be followed in every case to which it applies. In the present case the standard procedure applies which is as follows:-
“Step 1: statement of grounds for action and invitation to meeting
1. - (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
3. - (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.”
Compensation
29. Article 157 of the 1996 Order makes provision in relation to compensation as follows:-
157. - (1) Subject to the provisions of this Article and Articles 158, 160 and 161, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.
(4) In ascertaining the loss referred to in paragraph (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.
(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
Submissions
30. The dismissal letters were the subject of two criticisms by Mr Sullivan. Firstly, Mr Sullivan drew attention to the change in the description of the disciplinary charge as between the disciplinary letter which said that the video evidence "appeared" to show diesel being removed as opposed to a finding that it had actually been removed. Secondly, Mr Sullivan sought to suggest that the charge was not made out because the respondent failed to impound the vehicle and measure the missing fuel. Mr Sullivan also criticised the reference to the vehicle not being authorised to be in the location that the alleged offence took place on the basis that the claimants were not charged with an offence of this nature.
31. Mr Sullivan accepted that he was a lay trade union official and did not have the necessary certification under Article 12(3) of the 1999 Order or as described in the Labour Relations Agency Code of Practice but submitted that this did not render it unlawful for an employer to permit a uncertified companion to attend. Mr Sullivan further submitted that although theft was alleged there was no investigation of this offence or alternatively that the investigation was inadequate. The allegation was couched in terms of what the claimants appeared to be doing but the allegation that the product was taken from the respondent was not substantiated. Nor had the DVD been authenticated as an honest piece of evidence that had not been interfered with. Furthermore, the matter had not been reported to the police and the claimants had been allowed to work the next day whereas the vehicle should not have been used once the offence had been detected.
32. Mr Sullivan submitted that the respondent denied the claimants their right to representation and that the DVD and the allegation were no more than suppositions unsupported by evidence. There was absolutely no investigation beyond the DVD evidence. In addition the allegation was that the vehicle was in a different part of Belfast and the vehicle registration number given was not correct.
33. On behalf of the respondent, Mr Sheridan submitted that the respondent had complied both with the requirements of its own handbook and the Labour Relations Agency Guidelines and that paragraph 118 of the Guidelines only arose if the employer abused those rights. Mr Sheridan reminded the tribunal that Mr Sullivan accepted that he was not an accredited Trade Union official and that there was no dispute about representation until after the disciplinary hearing when Mr Sullivan got involved. Mr Sheridan also pointed out that it was now clear that the claimants had been in contact with Mr Sullivan within five days of the events in question and that the contents of the statements that they brought to the meeting on 10 November 2009 had been prepared with the assistance of Mr Sullivan. Mr Sullivan’s suggestion that a tribunal hearing could have been avoided had he been permitted to engage in conciliation was a red herring according to Mr Sheridan. Mr Sheridan further submitted that the claimants were not denied representation and that the provision in relation to unqualified representatives protects employees and business interests. In any event the claimants did receive assistance in the form of the email sent by Mr Sullivan on their behalf.
34. In relation to the law, Mr Sheridan placed reliance on British Homes Stores v Burchell [1980] ICR 303 in submitting that the question is whether the employer suspected the employee of committing the offence. In this context it was necessary that the belief was honest, reasonable and reached after a reasonable investigation. Mr Sheridan also relied on the decision of the Employment Appeal Tribunal in ILEA v Gravett [1988] IRLR 497 to submit that this depends upon the extent of the evidence available to the employers. As Wood J (presiding) put it:
‘... at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation, including questioning of the employee, which may be required, is likely to increase'.
35. The employer in the present case received a telephone call and as a result went to a meeting and received a DVD. The DVD clearly showed one of the respondent's lorries in an estate with two of the respondent's employees siphoning off fuel. The matter was then passed to the claimants' line manager, Mr Reynolds. When he viewed the DVD he saw the two claimants in one of the respondent's lorries in Springhill Drive which is not on their Thursday run. Joseph Braniff is seen carrying a hose to the right hand side of the lorry where the fuel tank is located and both are seen at the side of the lorry with the hose. James Braniff is seen taking the hose to the side of the house and Joseph Braniff is also seen taking a large heavy container to the side of the house. According to Mr Sheridan this raised more questions than answers. The evidence of misconduct comprised both the DVD and the commentary. Although there is no direct evidence of fuel being siphoned it calls for an explanation which the claimants failed to provide at the disciplinary hearing. The claimants were told that no decision would be taken at the hearing without hearing their side of the story and having the facts established. The claimants gave no reason for their presence at Springhill Drive until they came to give evidence at the tribunal hearing. They could have given that evidence at the disciplinary hearing but did not and instead Joseph Braniff instead merely asked whether the respondent was 100% sure that it was diesel. Joseph Braniff also claims that his brother knows all about this explanation but was not allowed into the meeting. Mr Sheridan pointed out his brother was not at Springhill Drive. The claimants did not take part in the hearing and this evidence does not explain their actions. In the letters seeking an appeal they claim that they will give a full and clear explanation. They had also sought advice from a solicitor who was made aware of the full background but no explanation or reason was forthcoming. Instead they refused to conform with a structured meeting and relied on an email containing four points notwithstanding that Mr Sullivan was fully aware of the claimants' story from 14 October but no mention was made of their account. Nor did the claim forms make any mention of the story that was told to the tribunal. In these circumstances the claimants' lack of participation in the disciplinary proceedings frustrated any investigation as to why the lorry was at a location that it should not have been in. Without that explanation there was a belief that misconduct had occurred and it was reasonable for the respondent to hold that belief on the information before it and looked at in the round there was as much investigation as was reasonable in the circumstances.
36. Mr Reynolds considered that once the video was viewed the game was up and he took it upon himself to speak to the Managing Director on the basis that they were two good employees who had made a mistake and that they should be given the opportunity to resign rather than have to bear the stain of dismissal whereas the claimants sought to portray Mr Reynolds as unsympathetic and heartless. James Braniff’s evidence that he asked Mr Reynolds for a copy of the DVD was not put to Mr Reynolds, nor was the suggestion that he was flippant and had no real concern for them.
37. Mr Sheridan pointed out that it was not contended that the dismissal was automatically unfair. If the tribunal decided that the dismissal was unfair Mr Sheridan placed reliance on Article 130A and submitted that based on the conduct of the claimants they would have been dismissed in any event. Mr Sheridan also relied on the decision in Software 2000 v Andrews and Others [2007] ICR 825 to submit that on the basis of the DVD evidence it would have made no difference. Further, if the tribunal was minded to make an award, Mr Sheridan submitted that there should be a deduction for contributory fault. In this regard he relied on Nelson v BBC (No.2) [1980] ICR 110 to submit as follows:
(1) The claimants were culpable and blameworthy in that they took company property to Springhill Drive where they were seen with a hosepipe and container and appeared to be siphoning fuel. This constituted gross misconduct which they failed to explain despite being given five opportunities to do so.
(2) It also caused and contributed to their dismissal in that they did not give a reason for being there and did not participate in the disciplinary process which left the employer with only one decision to make.
(3) It was just and equitable to make a 100% deduction in the present case.
In conclusion Mr Sheridan submitted that the claims were at best misconceived and at the worst vexatious and he would have sought costs had the claimants been legally represented in view of their evidence to the tribunal.
Conclusions
38. As the submissions make clear the issues for the tribunal to resolve are relatively net.
Substantive Unfair Dismissal
(1) Did the respondent carry out a reasonable investigation?
The central feature of the claim of substantive unfair dismissal was whether the respondent carried out a reasonable investigation. It was not suggested that the respondent did not genuinely believe in the claimants’ guilt. Suspicious behaviour by two employees was brought to Mr Byrne’s attention and he was provided with a DVD which included a commentary. The claimants were identified as the employees in question and the DVD showed them apparently siphoning diesel from a waste collection vehicle at a location which was not on their scheduled route. Given the nature of the evidence we do not consider that any further investigation was required. In particular, we do not believe that the fuel measurements suggested by Mr Sullivan would have yielded any further relevant information given the high fuel consumption of such a vehicle. We therefore do not regard the absence of fuel readings as in any way undermining the reasonableness of the investigation. On the face of it the claimants were caught red handed and at the very least their actions clearly called for an explanation. No explanation was forthcoming and we are satisfied that the investigation was sufficient.
(2) Were the claimants unfairly dismissed?
As to whether the disciplinary panel and appeal panel were justified in reaching their decisions to dismiss the claimants we bear in mind the approach advocated in the case law as recently endorsed by the Court of Appeal in the Rogan case. The claimants were suspected of removing diesel and the video evidence coupled with the absence of any explanation were in our view sufficient in evidential terms for a disciplinary decision maker to reasonably conclude that the claimants were guilty of the conduct complained of and the decision to dismiss the claimants was well within the band of reasonable responses open to the employer.
Procedural Fairness
(3) Was the dismissal procedurally fair?
(i) It would in our view have been preferable if the respondent had convened an investigatory meeting with the claimants but there is no obligation to do so. It seems to us that the three step disciplinary process has a regrettable tendency to encourage employers to move directly to a disciplinary hearing without the benefit of an investigatory meeting. However, we are satisfied that a sufficient investigation was undertaken by the respondent in the particular circumstances of this case where the claimants were caught red handed. We are satisfied that the respondent had a genuine and reasonable belief in the claimants’ guilt which was arrived at after a reasonable albeit limited investigation. At no stage did the claimants attempt to explain their clearly suspicious behaviour prior to giving evidence to the tribunal. It could not plausibly be argued that the absence of an investigatory meeting deprived the claimants of any opportunity of telling their side of the story. They neglected to give an explanation when the allegations were put to them by Mr Reynolds and they did not put forward an account of their actions either at the disciplinary hearing or the appeal. Even more strikingly their account did not feature in their claim forms. The claimants appear to have been labouring under a misguided belief that they enjoyed a right to silence. While both claimants sought and obtained legal advice we cannot believe that a solicitor who had been fully acquainted with the relevant facts would have done other than to advise the claimants to give the respondent an explanation of their behaviour at the earliest opportunity.
(ii) We do not accept Mr Sullivan’s criticisms of the charges brought against the claimants. In particular, we are not impressed by Mr Sullivan’s complaint that the dismissal letters referred to the vehicle not being authorised to be in the location in question. There was no suggestion that this was a feature of the charge and we are satisfied that it was merely a factual circumstance that was part of the evidential picture that informed the panel in its determination as to whether the claimants were guilty of the substantive offence of removing diesel from a company vehicle. Nor do we consider that the criticism of the dismissal letter is valid as it stated in very fair terms what the video evidence tended to suggest.
(4) Were the claimants improperly deprived of representation?
(i) Mr Sullivan accepted that he did not fall within any of the categories of companions that an employer must permit to attend disciplinary hearings in accordance with Article 12 of the Employment Relations (Northern Ireland) Order 1999. We do not however understand Article 12 to prohibit other persons from fulfilling the role of companion but it is a matter for the disciplinary body to determine whether other persons may be permitted to do so in particular cases. In the present case the issue of representation arose principally in relation to the appeal. At the initial hearing before Mr Reynolds the only complaint was that Joseph Braniff’s brother was not allowed to be present but it is clear that his role was as a witness rather than a companion. While a legitimate complaint could be made in a case where a disciplinary panel refused to allow a material witness to give evidence, no such complaint could be made in the present proceedings as it is common case that no request was made for Paul Braniff to give evidence. Furthermore, Joseph Braniff decided at an early stage that he would not receive a fair hearing and therefore decided not to give an account or explanation of what occurred. In these circumstances it is difficult to envisage how Paul Braniff could have been in a position to give relevant evidence as his evidence could only have been useful if it had been in corroboration of the claimants’ evidence.
(ii) At the appeal stage Mr Byrne took the view that Mr Sullivan was not entitled to accompany the claimants as he did not fall within the categories of persons who must be permitted to undertake the role of companion. As Mr Sullivan candidly acknowledged, Mr Byrne was entirely within his rights to do so. We agree. Mr Byrne could have exercised his discretion to permit Mr Sullivan to accompany the claimants notwithstanding that he was not within the category of permitted persons but he did not do so and the claimants’ claim cannot succeed on this basis. While It may have been preferable for Mr Byrne to have allowed Mr Sullivan to attend we are satisfied for the reasons given above that he was entitled to refuse to allow Mr Sullivan to act as a companion. The point made by Mr Sullivan in correspondence about paragraph 118 of the Code of Practice is entirely misplaced. It is clear that paragraph 118 is directed at the potential abuse of workers by employers for exercising their right to be accompanied or for acting as a companion and says nothing about the correct approach to addressing requests of this nature.
(5) Has the respondent complied with the three step statutory dismissal procedure?
Mr Sullivan did not seek to argue that there was any breach of the statutory dismissal procedure. This does not however absolve the tribunal of its duty under Article 130A of the 1996 Order to determine whether or not it has been complied with by the respondent. As Article 130A makes clear an employee shall be regarded as unfairly dismissed if the applicable statutory dismissal procedure is not followed. Having said that, it clear to us that there was no breach of the statutory dismissal procedure in this case. Mr Reynolds’ letters of 13 and 14 October 2009 complied with Step 1 and a Step 2 meeting was arranged at which the claimants had an opportunity to address the matters of concern to their employer. The Step 2 meeting took place as did the Step 3 appeal albeit with limited participation by the claimants but no criticism can be laid at the door of the respondent in this regard.
39. In view of our conclusions as set out above the claims must be dismissed.
Chairman:
Date and place of hearing: 31 August 2010 - 1 September 2010, Belfast
Date decision recorded in register and issued to parties: