Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  108/10

 

 

 

CLAIMANT:                          Norman Campbell

 

 

RESPONDENT:                  Department of the Environment

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

 

Constitution of Tribunal:

Chairman:                Mr Patrick Kinney

Members:                 Mr Aubrey Crawford

                                    Mr Norman Wilkinson

 

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.

 

Issue

 

1.         The issue for the tribunal to determine in this case was whether the claimant was unfairly dismissed by the respondent.  The respondent accepts that it dismissed the claimant but asserts that it was for a potentially fair reason, namely gross misconduct.  The claimant did not appear at today’s hearing.  There was no contact from the claimant to the Office of the Tribunals to explain his absence.  Mr Wolfe informed me that there had been no contact with the respondent and that the respondent had no information as to the claimant’s intention in relation to the claim.  Mr Wolfe pointed out that the claimant had not attended at previous Case Management Discussions.  The tribunal determined it was appropriate to continue to hear the matter.  As the respondent had accepted that the claimant was dismissed the burden of proof is on them to show the potentially fair reason for the dismissal.

 

2.         The tribunal, on the evidence before it, has found the following facts:-

 

(1)       The claimant was employed by the respondent at the Vehicle Inspection Centre in Larne as a Vehicle Examiner.  On 16 April 2009 the claimant tested a Toyota Carina car and on 17 April 2009 tested a Ford Transit Van.  A colleague was concerned at the way in which the tests were conducted and the fact that both vehicles were passed by the claimant as roadworthy.  The concerns were brought to the attention of Mr Empey, the claimant’s line manager.  In relation to the Toyota Carina vehicle the concern was that there was an imbalance in the rear brakes on the vehicle.  The test allows an up to 30% imbalance.  The witness contended that Mr Campbell had altered the testing equipment to register a 10% imbalance which was well within the margins allowed.  In relation to the Ford Transit Van both the witness and Mr Empey observed that the body of the vehicle was extensively rotted at the body sill area.  This had not been recorded as a defect and again the vehicle had passed the inspection. 

 

(2)       Both vehicles were subsequently examined by the respondent’s Enforcement Section.  The car was found to have faulty rear brakes with a high imbalance factor of 41%.  The Ford Transit Van was located and it was observed that repairs had recently been carried out to the vehicle.  The keeper confirmed, in a written statement to the respondent, that the repairs had been carried out after the vehicle had gone through the test process with the claimant. 

 

(3)       The respondent suspended the claimant immediately from his duties until appropriate investigations could take place.  The respondent appointed Amanda Donaghy to investigate.  Ms Donaghy was not an employee of the respondent but of HR Connect.  Ms Donaghy conducted an extensive investigation procedure taking witness statements from six witnesses, including the claimant.  Ms Donaghy passed her report and conclusions to Mr Sharvin of the respondent’s HR Department.  He considered her report and concluded a disciplinary hearing should be heard.  On 23 July 2009 Mr Sharvin wrote to the claimant setting out the matters of concern relating to the two vehicles and requiring the claimant to attend a disciplinary meeting on 4 August 2009.  The claimant attended at this meeting with his trade union representative.  Following the meeting, Mr Sharvin made a full report in which he set out the allegations made against the claimant, the investigation which was conducted and the evidence gathered, including the evidence of the claimant who had been afforded a full opportunity to make any comments himself and also the evidence of the re-inspections of the vehicles.  Mr Sharvin concluded that both vehicles had been inspected and issued with Roadworthiness Certificates when they should have failed the test.  Mr Sharvin found that the claimant was guilty of gross misconduct.  He then considered the appropriate penalty.  He took into account that the mission statement of the Driver and Vehicle Agency is to contribute to road safety.  It was important to have public confidence in the Government testing regime.  The actions of the claimant were a serious breach of trust.  Mr Sharvin also considered mitigating factors and he concluded that his recommendation was that the claimant be dismissed. 

 

(4)       Any decision about dismissal has to be taken by the Establishment Officer, in this case Mr Chris Wilson.  Mr Sharvin’s report was sent to Mr Wilson.  Mr Wilson considered Mr Sharvin’s report and also Ms Donaghy’s investigation.  Mr Wilson also considered the allegation put forward by the claimant in the disciplinary process that he was the subject of a vendetta by the colleague who had initially reported the concerns and Mr Empey.  Mr Wilson found that there was no evidence to substantiate the allegations of a vendetta and no complaint or grievance had been raised by the claimant.  In any event, even if there had been any evidence of a vendetta it did not detract from the fact that there was extensive evidence that the vehicles should not have passed the roadworthiness test but that the claimant had issued test certificates.  Mr Wilson’s conclusion was that the claimant should be dismissed.  He wrote to the claimant on 2 October 2009, which set out full details of the allegations made against the claimant, the relevant findings of the investigation and the disciplinary process, the comments and explanations given by the claimant and Mr Wilson’s conclusion that the charge of gross misconduct was upheld.  Mr Wilson also set out the factors he considered in mitigation and the factors he took into account when deciding on penalty.  Mr Wilson considered that the appropriate penalty was dismissal.  The letter also contained the claimant’s right to appeal.  On 8 October 2009 the claimant sought to appeal the decision of Mr Wilson.  The appeal was heard by Mr Brendan Magee who is the Chief Executive of the Driving & Vehicle Agency, on 28 October 2009.  Issues raised by the claimant at that hearing were dealt with by Mr Magee and on 18 November 2009, Mr Magee wrote to the claimant confirming that he had given full consideration to all the documents and the points made at the appeal hearing but that he had decided the appeal was not upheld. 

 

The law

 

3.         Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has a right not be unfairly dismissed.  By Article 130 to determine whether a dismissal of an employee is fair or unfair it is for the employer to show that the reason for the dismissal falls within the terms of that Article.  By Article 130(2)(b) one such reason relates to the conduct of the employee.  If a potentially fair reason is established the tribunal should then consider whether the respondent acted reasonably in all the circumstances.  Dismissal must be within the band of reasonable responses which a reasonable employer might take and the tribunal must not substitute its own view for that of the employer.

 

4.         Following the authority of British Home Stores  v  Burchell [1978] IRLR 379, the tribunal must be satisfied that the employer at the time of the dismissal had a genuine belief in the employee’s guilt of that misconduct, had reasonable grounds to hold that belief and carried out such investigation as was reasonable in all the circumstances.  The penalty which the employer then imposes as a sanction must also be within a range of reasonable responses which a reasonable employer might take. 

 

5.         In the Northern Ireland Court of Appeal in the case of Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47, the court reminded tribunals that the function of the tribunal is to consider the reasonableness of the employer’s conduct not simply whether they [the members of the industrial tribunal] considered the dismissal to be fair and that in judging the reasonableness of the employer’s conduct a tribunal must not substitute its decision as to what was the right course to adopt for that of the employer.  The Court of Appeal also stressed that the tribunal should not re-hear or re-investigate allegations but should consider whether the employer acted reasonably having regard to the material available to it and the investigation carried out by it. 

 

Conclusions

 

6.         On the evidence heard, the tribunal is satisfied that the respondent carried out an extensive investigation and had provided the claimant with every opportunity to explain the circumstances of his behaviour.  There was a disciplinary hearing arranged of which the claimant had full notice, at which he was accompanied by his trade union representative and when he had every opportunity to make any points he thought appropriate.  The conclusion reached by Mr Wilson was reached on the basis of an investigation in which six witnesses, including the claimant, had been interviewed.  The tribunal is satisfied that the investigation was thorough and reasonable in all the circumstances.  It was reasonable for Mr Wilson to hold a genuine belief in the claimant’s guilt of the misconduct alleged and the investigation and disciplinary process had disclosed reasonable grounds to hold that belief. 

 

7.         The tribunal further finds that the sanction of summary dismissal is within the range of reasonable responses which a reasonable employer might make.  The testing process is designed to ensure the safety and suitability of vehicles to be on public roads.  The granting of the Test Certificates in the two cases identified had the potential to cause real road safety issues.  Safety concerns relating to the work carried out by the claimant and his colleagues were of considerable importance to the respondent.  It was acutely aware of its responsibilities.

 

8.         The tribunal concludes, unanimously, that the claimant was not unfairly dismissed.

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:          1 March 2011, Belfast

 

 

Date decision recorded in register and issued to parties: