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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bunting v Kwik-Fit (GB) Limited [2011] NIIT 00514_11IT (19 July 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00514_11IT.html
Cite as: [2011] NIIT 514_11IT, [2011] NIIT 00514_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 514/11
CLAIMANT: Noel Bunting
RESPONDENT: Kwik-Fit (GB) Limited
DECISION
The tribunal finds that the claimant was unfairly dismissed and orders that the claimant be reinstated to his post on 24 August 2011. The tribunal awards the sum of £10,349.00 in compensation for arrears of pay for the period between the dismissal and the date of reinstatement.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mr A Burnside
Ms M McReynolds
Appearances:
The claimant was represented by Mr G Watt, barrister-at-law, instructed by Flynn and McGettrick Solicitors.
The respondent was represented by Mr B McKee, barrister-at-law, instructed by O’Reilly Stewart Solicitors.
The Claim
1. The claimant’s claim was for unfair dismissal in that he claimed that the penalty of dismissal was too harsh for the disciplinary offence. The claimant sought reinstatement. The respondent stated that the dismissal was for gross misconduct, and the penalty was fair in the circumstances. In relation to remedy, the respondent agreed that if the tribunal found in favour of the claimant, that the claimant would be reinstated as it was accepted by the respondent that the claimant was otherwise a good worker.
The Issues
2. As the claimant agreed that he was liable to be disciplined for the alleged offence, the issue for the tribunal was whether the penalty of dismissal was a fair penalty in the circumstances.
Sources of Evidence
3. For the respondent, the tribunal heard evidence from Mr Robert Thompson, the Operations Manager for Northern Ireland; Mr Christopher Southgate, the Divisional Director for the respondent. The tribunal heard from the claimant on his own behalf.
The Law
4. Under the Employment Rights (Northern Ireland) Order 1996 misconduct is a potentially fair reason for dismissal. It is for the tribunal to decide whether dismissal was fair in the circumstances.
5. The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 outlines the task for the tribunal in a misconduct dismissal case. The test to be applied is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the employer’s act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances.
6. Both sides referred us to Harvey on Industrial Relations and Employment Law and we were specifically referred to the case of Taylor v Parsons Peebles NEI Bruce Peebles Limited 1981 IRLR 119 EAT.
7. In the Taylor case the claimant was dismissed after he was involved in a fight with another employee as the respondent’s policy was to dismiss any employee who deliberately struck another. The dismissal was held to be unfair due to the rigid application of automatic dismissal without taking account of the circumstances. The test outlined by the EAT is outlined a paragraphs 253 and 253.52 and is summarised in the head-note as follows:
“In determining the reasonableness of an employer’s decision to dismiss, the proper test is not what the policy of the employer was but what the reaction of a reasonable employer would be in the circumstances. That the employer’s code of disciplinary conduct may, or may not, contain a provision to the effect that anyone striking a blow would be instantly dismissed therefore is not to the point. That provision must always be considered in the light of how it would be applied by a reasonable employer having regard to equity and the substantial merits of the case. That includes taking account of the employee’s length of service and previous record. In the present case a reasonable employer having regard to the appellant’s previous 20 years good conduct would not have applied the rigid sanction of automatic dismissal”.
Findings of Fact and Conclusions
8. It was agreed between the parties that there were no breaches of procedures whether statutory or otherwise. The tribunal therefore finds that the statutory dismissal procedure was complied with by both sides.
9. The claimant worked for the respondent from 23 September 1994 until 24 November 2010 when he was sacked for gross misconduct. At the time of his dismissal the claimant was employed as a service technician and his job primarily involved servicing cars and dealing with administrative tasks associated with that including answering the telephone and dealing with customers, and making sales.
10. The events which led to the claimant’s dismissal occurred on 16 November 2010. On that date a customer complained that no oil filter had been fitted to his car during its service despite the service record showing that the filter had been changed.
11. The claimant’s supervisor asked the claimant if he had indeed changed the filter and the claimant confirmed that he had. The claimant had completed a check-list for that car which confirmed that the filter had been changed.
12. Almost immediately the claimant realised that he had made a mistake by fitting the filter to the wrong car and the check-list completed by him was therefore incorrect.
13. On the day in question, two cars of the same make and model had been double booked so the claimant essentially had to perform the service and fill in the forms on both cars at the same time. This is one of the factors which led to the claimant’s mistake.
14. The depot was short-staffed as two members of staff were off and it was very busy because of the double-booking. The claimant’s supervisor was engaged with customers in the yard which left the claimant as the most senior member of staff to deal with the following matters: dealing with customers, answering phones within a very short period (a requirement of the respondent), booking in services, performing quality control on the work of the two junior members of staff and dealing with the two services which had been double-booked.
15. It was accepted by the respondent that the claimant was a very hard worker with a clear disciplinary record. The respondent also appears to have accepted throughout the disciplinary process that the claimant did indeed make a genuine mistake.
16. It appears to have been accepted by all sides that the failure to change the oil filter was not a life-threatening matter nor would it have caused a risk to the customer’s health and safety.
17. In summary the claimant was a hardworking employee seeking to juggle all the competing tasks he had to deal with in order to get the work done for the customers as quickly as possible. Indeed when the claimant realised his mistake he telephoned the customer to apologise, of his own volition.
18. The respondent company regarded accuracy and honesty in the performance of work as paramount to the running of its business. This was brought sharply into focus by an undercover investigation by a consumer affairs television programme in England in September 2010, which made allegations about the accuracy and quality of workmanship at some depots there. The company realised that any slippage in standards of workmanship could likely have a devastating effect on its future business given the attendant risks to its reputation.
19. The company therefore emphasised to staff in a series of road-shows and letters to individuals, the importance of adhering to procedures and recording accurately the work carried out for customers.
20. In the letter sent to all staff the company outlines its concern as follows:
“As has always been the case in Kwik-Fit, the reputation of our business rests on our ability to document accurately and honestly the measurements and findings of our work and on us making recommendations that are in the customer’s best interests. There is no place in the organisation for poor service or those to fail to meet our standards”.
21. The letter also states:
“Both managers and service technicians need to be aware of the consequences of not following the correct procedures, both for as individuals and for the company. (sic) Anyone who fails to adhere to the quality controls in place will be taken to disciplinary which may lead to demotion or dismissal if the events are serious enough”.
22. The claimant therefore realised, and accepted in evidence to us that, whilst his mistake was a genuine one, he was liable to be subjected to disciplinary proceedings.
23. The claimant was suspended on 16 November 2010 pending disciplinary action. Mr Thompson conducted a disciplinary investigation and decided that disciplinary action was warranted.
24. By letter of 17 November 2010 the disciplinary charge was put to the claimant, he was invited to a disciplinary hearing and he was informed of his right to be accompanied. This letter complies with step 1 of the statutory dismissal procedure.
25. The disciplinary hearing took place on 22 November 2010 and the decision to dismiss was taken following that hearing by Mr Thompson.
26. The effective date of termination (EDT) was 24 November 2010 being the date of the letter of dismissal with immediate effect.
27. The claimant appealed by letter dated of 6 December 2010 and the appeal was dealt with by Mr Southgate with an appeal hearing arranged for 16 December 2010. The appeal was rejected by letter of 20 December 2010.
28. We assessed the claimant to be an honest, straightforward witness who appeared to be something of a “firm’s man” given his hard work and commitment to his employer. We also assessed Mr Thompson and Mr Southgate to be honest witnesses who believed they were operating the policy in the way which the company required.
29. We accept entirely the respondent’s right to specify a strict policy in relation to standards of workmanship and accuracy; the respondent know its business best and we do not criticise the respondent for specifying to all staff that disciplinary proceedings would inevitably follow in the event of failure to adhere to work and quality control procedures. The respondent clearly regarded accuracy and high levels of workmanship to be fundamental to their business and they are fully entitled to do so particularly in circumstances where serious allegations had been made in a television programme which had the capacity to damage seriously their business.
30. The existence of the policy was made clear to all staff and the claimant confirmed in evidence to us that he had no difficulty with the existence of the policy as he appeared to recognise the importance of high workmanship and high levels of accuracy and the importance of adhering to procedures.
31. The difficulty for the respondent is that, in its own letter outlining the policy, it makes staff aware that the consequences of any disciplinary action might be demotion or dismissal “if the events are serious enough”. In practice, however, in the claimant’s case this policy was interpreted to mean that any breach of procedure must lead inevitably to dismissal irrespective of the circumstances of the disciplinary offence and the circumstances of the employee.
32. We do not find the penalty of dismissal to have been within the band of reasonable responses for a reasonable employer in the respondent’s position. There existed the following mitigating circumstances:
· the depot was short-staffed and was very busy because of a double-booking;
· the double-booking was of two cars of the same make and model which the claimant was servicing simultaneously;
· the claimant was supervising and quality-checking the work of two other junior workers;
· the claimant was answering the phones, booking services and dealing with customers;
· the claimant had a 17-year clear disciplinary record;
· the claimant’s reputation as a hard worker and a firm’s man;
· the claimant’s immediate acknowledgement of his mistake;
· the acceptance by the respondent’s managers that it was a genuine mistake.
33. In this case, the claimant’s position differs from the claimant’s position in Taylor in that the policy did not contain a stipulation that there would be automatic dismissal for relevant breaches of procedure. The respondent gave itself a discretion which, in practice in the claimant’s case, was not exercised in the face of very strong mitigation which would have satisfied any reasonable employer. We find that no reasonable employer with the respondent’s policy as stated in its letter to staff, would have dismissed in the face of such a litany of mitigating circumstances. We therefore find the actions of the employer to be outside the band of reasonable responses of a reasonable employer and find that the claimant was unfairly dismissed.
34. In line with the agreement of the parties we therefore order reinstatement of the claimant on 24 August 2011.
Remedy
35. By virtue of Article 147 of ERO the tribunal is empowered to make an Order for reinstatement. Article 148 outlines the matters to be specified in the Order for reinstatement. An Order for reinstatement is an Order that the employer shall treat the complainant in all respects as if he had not been dismissed. The Order must specify any sum in respect of arrears of pay between the date of termination of employment and the date of reinstatement together with any rights and privileges including seniority and pension rights which must be restored to the employee. We find that this provision empowers the tribunal to order restoration of the claimant’s holiday entitlement.
36. The EDT was 24 November 2010 and the date of reinstatement ordered by the tribunal is 24 August 2011. It is open to the parties to seek to agree a variation of that date provided that the claimant’s arrears of pay are adjusted accordingly.
37. The claimant’s holiday entitlement for 2011 must be restored to him together with his entitlement to any holidays carried over from the previous holiday year.
38. The Order must be complied with by 24 August 2011.
39. We accept that the claimant made reasonable efforts to obtain other work and he therefore did not fail to mitigate any loss occasioned by his dismissal.
40. It is open to the tribunal to reduce the arrears of pay for any contributory conduct found but we decline to do so in this case. Whilst the respondent’s counsel in opening the case stated that contributory conduct was in issue, no submissions were made by either side on the matter. We decline to find that the claimant was guilty of blame-worthy conduct such as to render him guilty of contributory conduct as we decline to find that an honest mistake which led the employer to act unreasonably by dismissing the claimant does not amount to contributory conduct. There will therefore be no reduction of the arrears of pay sum awarded.
41. The claimant did not receive Job Seekers Allowance between the date of his dismissal and the date of hearing according a letter from the relevant Jobs and Benefits office which was presented to us on 7 June 2011 having been faxed to the claimant’s solicitors that day.
42. We assess compensation between the date of dismissal and the date of this decision as follows using figures agreed in evidence by the claimant:
43. Loss of earnings between date of dismissal 24 November 2010 and date of reinstatement 24 August 2011:
Net pay per month £1200.00.
Net pay per week £276.92 x 39 weeks = £10,799 (rounded down).
Deduct earnings received £450.00
Sum Due: £10,349.00
44. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 7 and 8 June 2011, at Belfast.
Date decision recorded in register and issued to parties: