Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/00287_11IT.html
Cite as: [2011] NIIT 287_11IT, [2011] NIIT 00287_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 287/11

CLAIMANT: Thomas Walker

RESPONDENT: Warmflow Engineering Ltd

DECISION

It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr J Boyd

Mr A Crawford

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr R Hillen, Management Consultant.

SOURCES OF EVIDENCE

1. The claimant gave evidence on his own behalf and Dr Jason Cassells and Mr Stuart Cousins gave evidence on behalf of the respondent. Additionally, there was a book of documents before the Tribunal.

THE CLAIM AND THE DEFENCE

2. The claimant claimed that he had been unfairly dismissed and the respondent denied this claim.

THE RELEVANT LAW

3. The relevant law is found in Article 130 of the Employment Rights (Northern Ireland) Order 1996. The Tribunal also had reference to the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47, a decision of the Northern Ireland Court of Appeal.

FACTS

4. The claimant was employed as a Senior Service Engineer by the respondent and had four years service with the company at the time of termination of employment.

5. The respondent is a company that manufactures, sells and maintains heating appliances and in particular oil fired boilers. The company regards itself as providing a premium product with attendant maintenance responsibilities and it charges accordingly. The company puts strong emphasis on the need to do a good job for the customer. As it charges approximately 50% more than other companies, it regards itself as bound to give a service that merits this charge.

6. The respondent ran a disciplinary procedure whereby various numbers of points were awarded for different types of misconduct. The company brought this procedure into force approximately four years prior to the claimant’s dismissal and regarded this procedure as instrumental in improving the attitude of its employees to the work of the company. Once an employee had amassed a score of 40 points on the company’s procedure, this meant an almost automatic dismissal.

7. In or around February 2010, the claimant had amassed 30 points under the respondent’s disciplinary procedure. The claimant tried to argue that the tribunal should re-open this disciplinary process, as it unfairly impacted on the decision to dismiss him. However the tribunal declined to do so considering that if there had been any breach of the procedure or any difficulty with the issue of this discipline, it had been waived by the claimant in continuing to work for the company. Furthermore, the claimant did not deny that he had exhausted the remedies in the internal disciplinary process in relation to this prior award of 30 points.

8. The matters which led to the claimant being dismissed all occurred in or around the month of May 2010. The first two matters related to jobs done by the claimant in connection with which the householder and an external third party (a plumber) complained about the work done by the claimant. In respect of one of the jobs, the claimant affixed vinyl gloves over two pumps on a central heating system, contrary to the company’s procedures and in respect of the second job left the flexible fuel line disconnected. The respondent company considered that this was a very serious breach of their procedures. The respondent company through Dr Cassells and Mr Cousins confirmed that the company procedure was to leave the heating appliance connected but with power turned off so that there would not be any leak of fuel. The respondent indicated that there were very cogent health and safety reasons for this procedure - if there was a fuel leak it would cause serious environmental issues and could even endanger life due to a fire risk. The final job concerned leaving a boiler replacement unfinished. It turned out that by the close of working on the day in question, it was apparent that the claimant did not have the parts with him to finish the repair. He only got through to the company in and around 4.55 pm and was advised to attend at a plumber’s merchant’s to obtain the requisite parts at 8.00 am the next day. However, there was a confusion in what the claimant was supposed to do as his personal handheld computer indicated that he was to go to the respondent premises at 8.00 am the next day. The claimant did go to the respondent’s premises and while he was on the road to the respondent’s premises he spoke to Neil McDougall of the Customer Care Centre at 8.04 am. He was told that as there had been a confusion he should come to the plumber’s merchants which was next door to the respondent’s factory premises to collect the necessary parts. It transpired that the claimant only attended at the plumber’s merchant’s premises at 8.25 am and there was closed circuit television footage which confirmed the time at which he entered the premises of the merchants.

9. There was an investigation carried out by Mr Conor Douglas, the Quality Manager of the respondent, into these three incidents. During the investigation, the claimant claimed that the records of the company were wrong in relation to him arriving late at the plumber’s merchant’s premises. It was company procedure for employees to leave their homes at 7.30 am to be present for their first call with customers at 8.00 am. While service calls to farther destinations such as Portrush and Coleraine would not necessarily require the claimant to be on site by 8.00 am, if any employee was coming to the company premises, they were required to be there by 8.00 am, and the claimant in being at Sprucefield Roundabout at 8.04 am, plainly was not able to be at the respondent’s premises at 8.00 am as required. The claimant said that the company records were wrong and that he had been on site at the plumber’s merchants at 8.00 am. The investigation of the claimant’s three incidents included senior engineers in the company reviewing the work which he had done, statements being taken, CCTV footage being viewed and the clocking system being checked. The net result of this investigation was that Mr Douglas considered that the claimant had a case to answer and that he should move forward through the respondent company’s process to a disciplinary interview.

10. The first investigation meeting conducted by Mr Douglas took place on 24 May 2010. However, the claimant had a 14 week absence due to “stress”. During this time, the respondent company halted its disciplinary process because they did not wish to cause any further stress to the claimant. After the claimant returned to work Mr Douglas held a meeting with him dated 6 September 2010. At the return to work meeting on that date he was advised that the investigation would need to be reviewed. Mr Douglas wrote to the claimant on 7 September 2010 proposing to do this on 8 September 2010. The claimant signed receipt of this letter and confirmed that he wished to be accompanied to that meeting. There were further investigation meetings on 15 September 2010. By a letter dated 28 September 2010 the claimant was advised that he was to attend a disciplinary meeting arising from the issues surrounding the three jobs which had been investigated. The claimant was advised that the misconduct being considered was careless work and falsification of records, and that he had currently accumulated 30 points in the respondent’s system. The claimant was provided with various notes when he requested them and the disciplinary hearing with Dr Cassells took place on 6 October 2010.

The claimant’s colleague of choice, Mr Brian Gibson, attended at this meeting. Dr Cassells considered what the claimant had to say and in respect of the disconnection of the fuel line and the placing gloves over the pump in the second incident, he gave the claimant the benefit of the doubt and gave him 10 points for negligence in relation to each matter. In relation to the being late at work and falsifying his records, he also downgraded that event and gave a total of 10 points for minor misconduct (5 points for being late and 5 points for falsifying records). This meant that the claimant had a score of 60 points and his employment was terminated.

11. The Disciplinary Hearing was reconvened on 22 October 2010 to give the claimant his result. The claimant was advised of the right to appeal and that it should be made within five working days to Mr Cousins. The claimant requested notes of the meetings, and these were supplied.

12. Outside the respondent company’s period within which a claimant can issue an appeal, by a letter dated 26 October 2010, the claimant issued an 11 point letter of appeal. Even though the envelope in which this letter was contained showed that it was posted only on 9 November 2010 (i.e. outside the set period for notifying an appeal) Mr Cousins still decided to allow the appeal to be heard as it was a disciplinary matter that had resulted in dismissal. Mr Cousins provided the minutes of meetings requested by the claimant and a choice of three times at which the claimant’s appeal could be heard under cover of his letter of 22 November 2010. The claimant chose to attend for his appeal on 3 December 2010, but this was adjourned at the claimant’s request due to adverse weather conditions. The appeal eventually took place on 7 December 2010 and once again Mr Brian Gibson attended at the request of the claimant. Mr Cousins considered each and every point made by the claimant in his letter of appeal and checked all the investigation notes. He reviewed the timeline that was represented by the CCTV and the clocking system. He checked the company procedures in relation to applying gloves or leaving oil lines disconnected. He considered the allegation that proper procedures were not followed but the claimant was not able to give any examples to support this contention. Neither was the claimant ever able to provide any examples that previous matters in his work record were raised and used adversely against him. The claimant was informed that the decision of the appeal was that his dismissal was upheld. This was by letter dated 13 December 2010. The claimant asked for reasons and by a letter dated 10 January 2011 the claimant was informed that the reason the decision was arrived at was that Mr Cousins had considered all the facts presented to him by the claimant and what was in the investigation.

CONCLUSIONS

13. It is settled law that in seeking to dismiss for misconduct an employer must show three things:-

1. that it holds a genuine belief in the guilt of the claimant;

2. that this was supported by reasonable grounds; and

3. this was arrived at by as much investigation as was reasonable in all the circumstances of the case.

14. It is the unanimous conclusion of the tribunal that the respondent has fulfilled this duty. The claimant tried to argue that the case against him had been fabricated by the respondent. He was not able to say how and why he considered this to be the case although he was given the opportunity to do so. Therefore this was a contention that found no favour with the tribunal. It is supported in reaching this decision by the fact that two out of the three incidents were reported by persons outside the respondent company, ie, a customer and in relation to the second job a customer’s plumber. The third incident was reported by Mr Neil McDougall who was an employee of the company, but although the claimant contended that the evidence against him was fabricated, the tribunal was not able to find any objective evidence to suggest that Mr McDougall’s evidence was fabricated against the claimant. It appeared that the company had in respect of the third incident taken statements, considered CCTV footage and clocking records. These were all items that were viewed as objective evidence. The claimant did not challenge the assertion that the clocking records of the company simply could not be falsified.

The tribunal had some reservations about the categorisation of the claimant’s false information as to his whereabouts on the day of the third incident, and in particular, his allegation that he arrived at 8.00 am in the plumber’s merchants instead of at 8.25 am which was when the CCTV recorded him arriving. However, the tribunal was satisfied that even had the allegations of falsification not entered into the disciplinary procedure, the claimant would still have been dismissed because he had accumulated 10 points for each of the first two offences and as such would have automatically been dismissed for these offences. Furthermore, the tribunal accepted the evidence of the respondent that they had reduced the points that could have been awarded for each item of misconduct, and the claimant was still dismissed. As such, we consider that the respondent genuinely believed that the claimant was guilty of the misconduct on reasonable grounds. We consider that a very full and fair investigation was conducted by Mr Douglas. As the claimant himself was ill and absent from the company for a 14 week period, we do not consider his contention that there was delay in the investigation to have any merit. We consider that the company behaved fairly in delaying the investigation and then carrying out a review to remind the claimant what stage matters had reached.

15. We found that the respondent’s decision to dismiss the claimant was within the band of reasonable responses set out in the case of Iceland Frozen Foods v Jones [1983] ICR 17. Perhaps unusually, the claimant was dismissed for an accumulation of points given in respect of misconduct other than gross misconduct. Under its procedure, the company was entitled to award more points than it actually did in categorising the misconduct for which the claimant could be dismissed. Even doing this, the claimant was still in the band at which he was automatically dismissed under the respondent company’s procedure. We find that the respondent company complied with its own internal procedures and we found that there was no breach of the statutory disciplinary procedures set out in Schedule One of the Employment Rights (Northern Ireland) Order 2003. We find the claimant was not unfairly dismissed.

Chairman:

Date and place of hearing: 11 and 13 May 2011, Belfast.

Date decision recorded in register and issued to parties: