Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    235/11

 

 

 

CLAIMANT:                      Mark Bolton

 

RESPONDENT:                Cloughorr Investments Ltd

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.  The title of the proceedings is amended to reflect the identity of the correct respondent, Cloughorr Investments Ltd.  Mr Peter Wilson and Golf Links Hotel are dismissed as parties to these proceedings.

 

 

 

Constitution of Tribunal:

 

Chairman:                        Ms J Knight

 

Members:                        Mr J Patterson

                                        Mr J McAuley

 

 

Appearances:

 

The claimant appeared and represented himself.

 

The respondent was represented by Mr Neil Richards, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

ISSUES

 

1.               The issue to be determined by the tribunal was whether the claimant was unfairly dismissed by the respondent contrary to Article 126 of the Employment Rights (NI) Order 1996.

 

EVIDENCE

 

2.               The tribunal heard the oral evidence from the respondent’s witnesses, Mr Samuel Kennedy, Mr Gavin Bates and Mr Peter Wilson, and the oral evidence of the claimant, Mr Mark Bolton.  The tribunal also viewed CCTV footage and took into consideration documentation to which it was referred in bundles provided by the parties. At the start of the Hearing the tribunal released Ms Rolleston and Mr Creelman as witnesses. The respondent did not intend to call either to give evidence. The claimant stated that he did not intend to call either witness to give evidence on his behalf but that he wished to cross examine them – Ms Rolleston as to the accuracy of minutes made by her at the appeal hearing and Mr Creelman as to the contents of a statement made by him to the respondent during to Mr Kennedy. The claimant confirmed that neither Ms Rolleston nor Mr Creelman had indicated to him that they now disputed the accuracy of the record. As it is not the tribunal’s role to reinvestigate the incident and substitute its own decision, the tribunal was satisfied that the claimant would be able to make his points as to the accuracy of the record in his own evidence to the tribunal, cross examination of the respondent’s witnesses who were giving evidence to the tribunal and in submissions at the conclusion of the case. In the circumstances the tribunal ruled that it was unnecessary to hear evidence from Ms Rolleston and Mr Creelman.

 

 

THE FACTS

 

3.       The tribunal found the following relevant facts to be proven on a balance of probabilities:-

 

          (1)      The claimant, Mr Mark Bolton, was employed by the respondent as a door supervisor in Kelly’s Complex, Portrush, from 1 May 2001 until 8 December 2010.  He worked five and a half hours per week for the respondent. The respondent provided him with training as to the role and duties of a door supervisor as required by the Security Industry Authority.  The claimant has other employment in a secure establishment.

 

          (2)      The claimant was on duty on 30 October 2010 at a fancy dress Halloween night function in Lush Nightclub when an incident occurred at approximately 11.35pm between customers on the dance floor. This incident and subsequent events were captured by CCTV cameras.  The claimant and another door supervisor, Mr Kyle McCullough, removed a customer from the dance floor and escorted him down a corridor leading out to the Lush yard.  Another male customer, dressed as a pirate (“the pirate”), coming from the other direction, tried to intervene and struck out at the claimant, apparently hitting him on the nose. The pirate was grabbed by another security man who escorted him out to the yard, while the claimant and Mr McCullough continued out to the yard with the other customer.

 

          (3)      The customers were then ejected out of the premises through the yard gates and a fracas broke out when they tried to get back into the yard as the claimant and other security staff tried to close the gate.  A customer can be seen running towards the gates and Mr Kyle McCullough appears to throw punches towards him.  This customer was grabbed and then restrained on the ground by Mr Gavin Bates, the respondent’s Operations Manager, and Mr Gary Shannon, another security officer. Mr Peter Wilson, Director, was in the vicinity at the time.

 

          (4)      The pirate then appears to be pulled into the yard by the claimant and another security staff member, Mr Davy Creelman.  The customer can be seen being restrained by the claimant on one side in a headlock and by Mr Creelman on the other side.  The claimant then moved in front of the customer and is seen striking him forcefully with an upward motion three times on the chest.  Mr Creelman then positioned himself between the claimant and the pirate who was dragged away and put outside the gates. The matter was reported to the police and the claimant went with them in the patrol car to identify the customers who had been involved in the incident.

 

          (5)      It was subsequently reported to Mr Bates that the CCTV footage appeared to show a customer being assaulted by the claimant. Mr Sam Kennedy, the General Manager of the Atlantic Hotel Bar and Grill, was asked to take statements from security staff who had been present during the incident. He interviewed the claimant a couple of hours after the incident occurred. In his initial statement to Mr Kennedy the claimant asserted that he had been struck on the nose in the corridor by the pirate and stated that the pirate was very aggressive trying to punch staff through the gate and that he and the other customer had tried to regain access by opening the gate. The claimant, who at this stage had not been shown the CCTV footage, did not mention during this interview that he had struck the pirate. Mr Kennedy also interviewed other security officers who had been present in the yard, namely  Mr Davy McAuley, Mr Robin Wade, Mr Kyle McCullough, Mr Gary Shannon and Mr Davy Creelman. None except Mr Creelman stated that they had seen anyone but the ejected customers throwing any punches.

 

          (6)    After viewing the CCTV footage Mr Kennedy considered that there were discrepancies between the claimant’s account and the CCTV footage.  The claimant was suspended on full pay pending a disciplinary investigation into an alleged assault by the claimant on a customer. The claimant was invited to a further interview with Mr Kennedy on 6 November 2010.  On this occasion the claimant told Mr Kennedy that he had struck the pirate on the upper torso twice as he was bent over with his arms around his leg trying to bite the claimant.  The claimant viewed the CCTV footage with Mr Kennedy at the end of this interview.  After this interview Mr Kennedy concluded that the CCTV footage showed that the claimant had assaulted a customer. He did not accept the claimant’s version of events. At the end of his investigations, Mr Kennedy passed on handwritten and typed notes of the investigatory interviews to Mr Gavin Bates, the Operations Manager.  At the Hearing the claimant contended that he had admitted from the very first interview that he had struck the customer and that the notes of the investigatory meetings had been altered in this regard.  This was denied by Mr Kennedy. The tribunal did not find the claimant’s evidence credible on this point and he put forward no reason as to why Mr Kennedy would wish to make such changes.

 

          (7)   Mr Bates wrote to the claimant on 18 November 2010 inviting him to a disciplinary meeting to consider allegations of gross misconduct, namely that the claimant had assaulted a customer and had acted in gross negligence of his duties.  Enclosed with this letter were the typed statements of Mr Davy Creelman, Mr Davy McAuley, Mr Robin Wade, Mr Kyle McCullough, Mr Gary Shannon and the claimant’s two statements of 30 October and 6 November 2010.  The claimant was informed that he would be shown the CCTV footage in advance of the hearing and was informed of his right to be accompanied by a work colleague or trade union official.  He was advised that the outcome of the Disciplinary Hearing could result in his summary dismissal from employment. 

 

          (8)      The Disciplinary Hearing took place on 30 November 2010.  The claimant was accompanied by his colleague, Mr Robin Wade, and Charlene Owens was present as a note taker.  The claimant viewed the CCTV footage in advance of the meeting.  The claimant admitted that he struck the customer three times which he said was to calm the situation down and also that the customer had been trying to bite him and to grab his leg.  The claimant asserted that he had used such force as was reasonable in the circumstances and that he had been acting in self-defence.  The CCTV footage was viewed again frame-by-frame while the claimant gave his version of events.  The claimant told Mr Bates that he would like to have a copy of the handwritten investigatory notes as he considered that there were omissions from the typed up version.  Mr Bates said that he would try to source these documents and the disciplinary hearing was adjourned to facilitate this.

 

          (9)      Mr Bates wrote to the claimant on 1 December 2010 inviting him to the reconvened disciplinary meeting on 4 December 2010.  He enclosed handwritten copies of the statements previously provided.  He declined to provide the claimant with a copy of the CCTV footage on grounds of confidentiality confirmed that he would be facilitated if he wished to view the CCTV footage again.

 

          (10)    At the meeting, on 4 December 2010, the claimant was accompanied by his colleague, Mr Stephen Magill and Caroline Wood acted as note taker.  Mr Bates asked the claimant whether he wished to raise anything of relevance arising out of of the handwritten copies of the statements and additional statements.  The claimant responded “not at this moment”.  Mr Bates confirmed that no complaint had been received from the customer himself.  The claimant maintained that he struck the customer while restrained to calm him down and that his prison training allows for this, that he was being attacked and was defending himself and that he hit him three times on the chest to calm him down and had he not done so he would have attacked other staff and customers.  The CCTV footage was viewed again while the claimant gave his explanation during this meeting.  At the end of the meeting the claimant stated that he was happy that he had put his points across.

 

          (11)    Mr Bates did not accept the claimant’s explanation and considered that the CCTV footage showed that the claimant assaulted the customer.  He wrote to the claimant on 8 December 2010 informing him that he was summarily dismissed on the grounds of gross misconduct and that the gravity of his conduct was such that the trust and confidence in the claimant as the respondent’s employee had been completely undermined.  The claimant was advised of his right to appeal against the decision to Mr Peter Wilson, Director of the respondent company. 

 

          (12)    The claimant subsequently appealed and Mr Wilson wrote to the claimant on 13 December 2010 inviting him to an appeal hearing on 16 December 2010. He advised the claimant of his right to be accompanied and that he would be given an opportunity to set out the detailed grounds of his appeal including providing any new evidence or new facts upon which he may wish to rely. The claimant was accompanied at the Appeal Hearing by Mr Robin Wade and Lorraine Rolleston acted as note taker.  Mr Wilson explained the process that would be followed at the meeting and CCTV footage was viewed again and the claimant gave his version of events with reference to the CCTV footage.  The claimant questioned whether the minutes of the Disciplinary Hearing accurately reflected what had been said at those meetings. He pointed out to Mr Wilson those parts of the record where he believed there were inconsistencies.  He questioned whether Mr Bates had sufficient training and qualifications on defence techniques such as to qualify him to reach a decision.  At the end of the Appeal Hearing the claimant confirmed to Mr Wilson that he had been afforded adequate opportunity to put forward his case. After consideration, Mr Wilson wrote to the claimant on 31 December 2010 advising him that it had been decided to uphold the original disciplinary decision. Mr Wilson’s stated reasons were that the CCTV footage clearly shows him striking a customer three times whilst removing him from the premises; that the claimant was unable to give the panel an acceptable explanation for his actions; and that the panel therefore concluded that his behaviour was unacceptable and amounted to assaulting a customer. Under the respondent’s disciplinary procedure this decision was final.

 

          (13)    The respondent decided not to institute disciplinary proceedings against Mr Kyle McCullough because it appeared that the CCTV footage supported his case that a customer was attacking him and he acted in self defence when he threw the punches.

 

          (14)   The claimant lodged his originating claim with the Office of the Industrial Tribunals and the Fair Employment Tribunal on 7 January 2010 claiming that he had been unfairly dismissed.  At the Hearing the claimant contended that the CCTV footage clearly showed that he had been acting in self-defence when he struck the customer three times on the chest. He asserted that the pirate could be clearly seen on the CCTV footage punching him in the face when he was being restrained in the yard.  He contended that this punch by the customer had caused the injury to his nose rather than the punch in the face which had occurred earlier in the corridor.  The claimant further relied upon the fact that he had not been prosecuted by the police for assaulting the pirate as evidence that he had been acting in self-defence and therefore asserted that his employer should not have made a finding that he had assaulted the customer. He further contended that there was an inconsistency of treatment by the respondent in that another member of staff seen on the CCTV footage striking out at a customer was not similarly disciplined.

 

THE LAW

 

 4.      The relevant legislation is contained in the Employment Rights (Northern Ireland) Order 1996 as amended. (“the 1996 Order”).

 

5.               An employee has a right not to be unfairly dismissed by his employer and this is for the employer to establish the reason for dismissal.  A dismissal is potentially fair if the employer can establish that the reason for the dismissal relates to the conduct of the employee (Articles 130(1) and (2) of the 1996 Order).

 

6.               Where the employer has shown that the reason for the dismissal is potentially fair, the determination of the question whether the dismissal is fair or unfair having regard to the reasons shown by the employer depends on whether in the circumstances including the size and administrative resources of the employers undertaking, the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.  (Article 130(4) of the 1996 Order).

 

7.               In Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 the Court of Appeal of Northern Ireland stated “It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly, whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances.  The tribunal must also of course consider whether the misconduct was a sufficient reason for dismissing the employee.” In paragraph 26 of its judgment the Court of Appeal makes it clear that the weight to be given to the evidence is for the disciplinary panel and not for the tribunal.

 

CONCLUSIONS

 

8.       The tribunal is satisfied in the present case that the respondent has shown that the reason for the claimant’s dismissal was misconduct which is one of the potentially fair reasons listed in the 1996 Order.

 

9.       The tribunal therefore turns to the issue as to whether in all the circumstances the employer acted reasonably or unreasonably in treating this as a sufficient reason to dismiss the claimant.

 

10.     In this case the claimant accepts that he struck the customer three times in the chest in order to calm him down and to protect himself, other staff and customers from injury from the pirate.  However the respondent did not accept that the claimant’s explanation that he had been acting in self-defence or that the force used by him was either necessary or proportionate.  The respondent concluded that the claimant had assaulted the customer by punching him three times in the chest.  It is not open to the tribunal to reinvestigate the incident and to reach its own conclusion on this issue but rather the tribunal must consider whether the respondent had a genuine belief that the claimant had carried out an act of gross misconduct and whether this belief was supported through sufficient investigation into the matter as was reasonable in all the circumstances.  The tribunal is satisfied in this case that the respondent had carried out a reasonable investigation of the incident both at the investigatory stage and at the disciplinary hearings.  The claimant was given the opportunity to put forward his case and Mr Bates provided him with all of the information requested.  The claimant was given the opportunity to view the CCTV footage and to give his explanation of the events recorded on the film.  It is clear that the respondent did not believe the claimant’s version of events.  It is clear that Mr Kennedy, Mr Bates and Mr Wilson were heavily swayed by the images of the incident on the CCTV footage and influenced by the fact that the claimant gave different accounts of the incident at different stages of the disciplinary process.  It is not for the tribunal to weigh the evidence however the tribunal did not accept the claimant’s assertion that it can be clearly seen on the CCTV footage that he is defending himself.  Even with the CCTV footage being slowed down and viewed frame-by-frame the tribunal was unable to see the pirate either punching the claimant in the face or attempting to bite the claimant’s leg. The tribunal is satisfied in the circumstances that the respondent reached a reasonable conclusion which it was entitled to reach in concluding that the claimant had assaulted a customer. 

 

11.     The tribunal is satisfied in all the circumstances that it was reasonable for the respondent in this case to treat this as sufficient reason to dismiss the claimant.  The tribunal accepted that there had been a breakdown in the employment relationship between the respondent and the claimant in this case which was contributed to by the fact that the claimant had changed his version of events. The tribunal rejected the claimant’s contention at the Hearing that discrepancies between the typed and handwritten records of the disciplinary and appeal hearings were evidence of unfairness towards the claimant by the respondent. The tribunal did not consider that there were any discrepancies of a material kind and took into account that the claimant had declined to raise any issues arising out of same during the disciplinary hearing. The tribunal concluded that summary dismissal was within the band of reasonable responses open to the respondent.  The tribunal did not consider relevant to the issues it had to determine that a decision was apparently taken not to prosecute the claimant. The tribunal considered that the respondent did not act either unreasonably or inconsistently in its treatment of Mr McCullough as in his case the CCTV footage appeared to the respondent to accord with his account of his actions.

 

12.   We therefore conclude that the claimant was fairly dismissed and his claim is dismissed in its entirety.

 

 

Chairman:

 

 

Date and place of hearing:         11 May 2011 Belfast.

 

 

Date decision recorded in register and issued to parties: