Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    583/11

 

 

 

CLAIMANT:                      William McMullen

 

RESPONDENT:                Kwik-Fit (GB) Limited

 

 

 

DECISION

 

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

 

 

Constitution of Tribunal:

 

Chairman:                        Mr W A Palmer

 

Members:                        Mr I O’Hea

                                        Mr I Rosbotham

 

 

Appearances:

 

The claimant appeared and represented himself.

 

The respondent was represented by Mr Brian McKee, Barrister-at-Law, instructed by O’Reilly Stewart, Solicitors.

 

 

THE EVIDENCE AND SUBMISSIONS

 

1.       We heard evidence, on behalf of the respondent, from Mr Roy Thompson, who is the respondent’s Operations Manager for Northern Ireland, and from Mr Christopher James Southgate, who is the respondent’s Divisional Director of a division, which includes Northern Ireland.  We also heard evidence from the claimant.  A number of documents were provided to us.  Submissions, to which we have had regard, were made.

 

          The Claim, Remedy Sought, an Adjournment and the Claimant’s Decision.

 

 

THE CLAIM

 

2.  (1) The claimant claimed unfair dismissal.  There was nothing in the claim form to indicate that his claim included a claim in respect of automatic unfair dismissal.  It appeared, from that form, that the claim was in respect of ordinary unfair dismissal only.  We referred the parties to Venniri  v  Autodex [2007] UKEAT 0436 07 1311, where it is stated at paragraphs 34 and 35:

 

“34.    In our judgment s98A(1) of the Employment Rights Act 1996 [Read as Article 130 (A) 1 of the Employment Rights (Northern Ireland) Order 1996] is part of the essential fabric of unfair dismissal law as presently enacted by Parliament.  Whether there is an applicable procedure, whether there has been ‘non-completion’ of that procedure, and whether that non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements, are matters which the Tribunal should have in mind in every unfair dismissal case.  It is not necessary for a claimant to raise s98A(1) explicitly; the Tribunal should have the matter in mind as an issue.

 

35.     Now that the statutory procedures under the 2002 Act [Read as the Employment (Northern Ireland) Order 2003] are becoming well known, it is to be hoped that in most cases an employer will have complied with them.  Often, particularly where a claimant is represented, a few moments of discussion at the beginning of a case will establish that it is conceded that the relevant procedure has been complied with by the employer.  But in the absence of an informed concession on the question, the Tribunal should regard s98A(1) as an issue and deal with it in its reasons.”

 

     (2) The action taken, with regard to this matter, will be described later.

 

 

REMEDY SOUGHT

 

3.       In the claim form the only remedy sought by the claimant, in the event of his claim succeeding, is stated to be “compensation only”.  In the form it is further stated that neither reinstatement nor re-engagement was being sought.  We carried out the duty imposed upon us by Article 146(2) of the Employment Rights (Northern Ireland) Order 1996 (the Order of 1996), which provides as follows:

 

“The tribunal shall-

 

(a)      explain to the claimant what orders may be made under Article 147 [reinstatement and re-engagement] ,and in what circumstances they may be made, and

 

(b)      ask him whether he wishes the tribunal to make such an order.”

 

 

ADJOURNMENT

 

4.       We adjourned the hearing, without objection, to give the claimant an opportunity to discuss the above two matters with a representative of the Labour Relations Agency (the LRA), who was present in the building.  We were particularly concerned that he should receive advice on the matter relating to automatic unfair dismissal, so that he could make an informed decision on whether to pursue such a claim.

 

 

THE CLAIMANT’S DECISION

 

5.       The claimant consulted with the LRA.  He returned and advised us that he was not pursuing a claim in respect of automatic unfair dismissal as the respondent had complied with the relevant statutory procedures.  We are satisfied that this decision was an informed one.  He also told us that he did not wish to seek either of the remedies of reinstatement or re-engagement.

 

The Claim Heard.

 

6.       The claim heard was one of ordinary unfair dismissal.

 

 

ORDINARY UNFAIR DISMISSAL

 

The Statutory Provisions, in Relation to this Case

 

7.  (1) Article 126 (1) of the Order of 1996 provides as follows;

 

“An employee has the right not to be unfairly dismissed by his employer”

 

     (2) Article 140 (1) of the 1996 Order provides:

 

“(1)     Article 126 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than one year ending with the effective date of termination.”

 

     (3) Article 130 (1), (2) (b) and (4) of the Order of 1996 provides as follows:

 

“(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 principle reason) for the dismissal, and

 

          (b)      that it is either a reason falling within paragraph (2) or some other substantial reason of a kind 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,

 

(4)      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 administration 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.”

 

 

CASE LAW

 

8.  (1) In Rogan v South Eastern Health and Social Care Trust [2009] NICA, the Lord Chief Justice stated at paragraph [15], in relation to the parts of Article 130 of the Order of 1996 set out above:

 

“These provisions make it clear that the burden of proof is on the employer to establish the reason for the dismissal and in this case [a conduct case] to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.”

 

     (2) Later, at paragraph [21] the Lord Chief Justice stated:

 

                    “The test for whether the dismissal was fair or unfair is set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 but in misconduct cases it is generally helpful to follow the remarks of Arnold J in British Home Stores.  It is for the employer to establish 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 conduct in question was a sufficient reason for dismissing the employee.”

 

     (3) Arnold J’s remarks, referred to by the Lord Chief Justice are, set out as follows, at page 380 of [1978] IRLR 379:

 

                    “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 itself 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 him, 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.”

 

     (4) The last matter that we wish to add is what is stated by the Lord Chief Justice at paragraph [27] of Rogan, namely:

 

                    “The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.  In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.

 

     (5) We emphasise this statement as the claimant asserted that he was not responsible for the action that led to his dismissal.  He considered that a witness had made an untrue statement against him and that his, the claimant’s, version of events, which was rejected by the respondent, was true.

 

 

FINDINGS OF FACT

 

9.       These findings are based on the balance of probabilities.

 

10.     The respondent’s business is, inter alia, the fitting of tyres to vehicles.  This type of work amounts to approximately 50% of its total business in Northern Ireland.

 

11.     The claimant was an Advanced Fitter with the respondent.  He commenced employment on 17 February 2008 and was dismissed by letter dated 23 November 2010.  We consider that the effective date of dismissal was 25 November 2010, when the claimant would have received the letter in the ordinary course of the post.  We, therefore, have jurisdiction to determine his claim of unfair dismissal.

 

12.     On 16 October 2010 a customer had new tyres fitted to his car at the respondent’s Newry branch, where the claimant worked.  On 26 October 2010 the respondent received a complaint from the customer.  On that date, the customer complained that one of the wheels had come off his car and, as a result, the car had been damaged.  The manager of the Newry branch telephoned Mr Thompson to inform him of the incident.

13.     Mr Thompson investigated the matter.  His purpose was to establish, (a) when the incident had occurred, (b) when the work was carried out, (c) who had worked on the customer’s car and (d) who had checked the work.  To do so, he interviewed staff and took statements.

 

14.     There is a procedure for the fitting of a wheel to a vehicle.  Two tools are employed in the exercise, namely, a wheel brace or a similar tool and then a torque wrench.  The wheel brace is used for the initial tightening of the wheel nuts.  The torque wrench is then employed to ensure that the nuts are at the proper settings.  Each car has a different setting.  The settings for vehicles are shown on a chart, which is on the wall of the workshop.  The fitter then sets the torque wrench to the proper setting.  He then applies the wrench to the nuts.  There is a clicking sound emitted from the wrench when the correct setting has been achieved.  The next step is to have another qualified member of staff check, by means of a torque wrench, that the wheel nuts have been set at the proper settings.  This is a quality check.  It is the responsibility of the original fitter to ensure that the checking procedure has been carried out.  The purpose of this second stage operation is to pick up any errors that may have occurred: there could be grave consequences if a wheel were not secured properly.

 

15.     We are satisfied that the claimant was trained by the respondent on the fitting of wheels and also that, as part of his training, he was made aware that it was the responsibility of the original fitter (which the claimant was in this instance) to ensure that another qualified fitter checked the settings.

 

16.     As a result of the investigation carried out, Mr Thompson wrote a letter (the letter) to the claimant to inform him that a disciplinary hearing, to be conducted by Mr Thompson, was to be held on 19 November 2010.  The letter included the following:

 

                    “At this hearing the question of disciplinary action against you , in accordance with the Kwik-Fit disciplinary procedure, will be considered with regards to alleged gross misconduct specifically:

 

                    1.       Failure to follow company procedures, relating to poor workmanship resulting in a customer vehicles wheel coming off.

 

                    2.       Failure to follow Quality checks.

 

                    The outcome of this hearing may lead to demotion or the termination of your contract.”

 

17.     In the respondent’s disciplinary procedures, which were provided to the claimant, the following, quoted insofar as relevant, is given as an example of Gross Misconduct, namely, “Failure to ensure that Company Procedures, relating to fitting parts, quality control checks and…..” 

 

18.     We are satisfied that, prior to the disciplinary hearing (the hearing), the claimant was aware of the substance of the allegation being made against him.  We are also satisfied that at the hearing he was in a position to put his defence and was permitted to do so.

 

19.     At the hearing the issue was whether Mr John Hancock had quality checked the claimant’s work on the customer’s car.  In the investigation, Mr Hancock had stated that he did not quality check the claimant’s work.  It appears from the notes of the hearing that the claimant had made an assumption that Mr Hancock had quality checked the wheels.  For example, the claimant stated, “Had head in boot John [Hancock] torqued wheels as far as I know.  Felt car move”, and when asked by Mr Thompson. “Did u ask or see John QC [quality check]” the claimant’s answer was, ”didn’t ask but presumed was done”.

 

20.     Mr Thompson wrote to the claimant on 23 November 2010 stating that it had been decided to terminate the claimant’s employment for gross misconduct.  The reason given was that the claimant had “failed to carry out Quality Checks which resulted in a wheel coming off a customer vehicle”.  On the evidence before Mr Thompson the finding of fault was a reasonable one to make.

 

21.     In the letter of 23 November 2010 the claimant was informed of his right of appeal, which he exercised.  The appeal was heard by Mr Southgate.  The letter of appeal was based on the claimant’s belief that Mr Hancock had quality checked the claimant’s work and that Mr Hancock had lied in his statement by stating that he had not quality checked the claimant’s work on the car in question.  Part of the letter of appeal reads:

 

                    “The car I had been working on (Renault Megane) came into our centre for four new tyres, I had removed the wheels and fitted the new tyres, and as I was fitting the last couple of tyres John [Hancock] another fitter in our centre balanced and fitted the wheel to the car, the wheel which came off the car 4 or 5 days later.

 

                    I fitted the rest of the wheels to the car after balancing them.

 

                    After fitting the wheels to the car and tightening them I went and got the torque spanner then let the car down off the car lift and torqued the wheels to 110nm which according to our wall chart is the recommended settings for this car.

 

                    Then as I was putting the spare wheel back into the boot of this car as it had been on the car when it had come into our centre I saw John go towards the front of the car with the torque spanner, as I bent down to work in the boot putting the spare wheel away I was aware of the car moving as someone torqued the wheels again with the torque spanner, as John was the person with the torque spanner I believed that it was him who was checking the wheels on the car, as he was the only person free at the time I would have asked him to QC [quality check] the work but as he had started to do this without me having to ask him to do it I was happy enough that my work had been Qc’d according to company policy, as John had bent down at the front left of the car first to torque the wheels and as I was working in the boot of the car and was aware of him torquing the wheels and could tell from the clicking of the torque spanner from first the front left then the front right then the rears, I know this work was carried out but never stood and watched him do every wheel.

 

                    I don’t believe that gross misconduct is appropriate to this case because although I had not asked for this QC work to be done John had been one step ahead of me and seen that this work needed to be done.

 

                    The work done on this car that was done by John I know was done but in his statement he claims not to have done any work on it and at no time was he asked to QC any wheels.

 

                    At the hearing I stated that I was not happy with John’s statement as he has lied about working on this car, he had worked on the car but had not been asked to QC work done.

 

                    I believe he has lied about this work because of knowing that it would lead to this having to be investigated,….”

 

22.     The appeal was heard before Mr Southgate, who wrote to the claimant stating the appeal meeting would take place on 16 December 2010.  The appeal hearing took place on that date.  The hearing notes indicate that two further issues were raised on appeal, namely, that the requirement of quality checking was not generally being followed at the Newry Depot and that not only had Mr Hancock quality checked the claimant’s work on the car in question, but a company record showed that this was so.

 

23.     As a result of the allegation that, in practice, quality checks were not being carried out, Mr Southgate later (before coming to a decision on the appeal) made further enquiries at the Newry depot and those interviewed by him denied that this was so.  We think that Mr Southgate acted reasonably in making these enquiries.  He satisfied himself that the allegation was unfounded and we consider that this was a reasonable conclusion to come to.

 

24.     The matter of the respondent’s records showing that the claimant’s work had been quality checked by Mr John Hancock, was also later investigated by Mr Southgate.  He found, in our view reasonably, that the record was not a true one in that a supervisor had made a wrong assumption.  Mr Southgate did not establish whether the supervisor faced disciplinary charges as a result.

 

25.     With regard to the main issue, namely, whether Mr Hancock had quality checked the claimant’s work the claimant was given ample opportunity to air this again.

 

26.     By letter, dated 3 January 2011, Mr Southgate wrote to the claimant rejecting his appeal in total: the dismissal stood.  We are satisfied that Mr Southgate acted reasonably with regard to the appeal and it appears to us, and we so hold, that his decision was a reasonable one to make.

 

27.     We are satisfied that the claimant’s dismissal related to conduct.  We are also satisfied that the respondent carried out reasonable investigations into the matters in question, that the respondent believed, on reasonable grounds, that the claimant had committed the conduct alleged and that there were reasonable grounds to sustain that belief.  The weight to be given to the evidence was for the decision makers (Mr Thompson and Mr Southgate) and we are satisfied, on the matters put before us, that neither acted unreasonably in this regard.

 

28.     We now have to ask ourselves whether the misconduct found was sufficient to lead to dismissal.  The yardstick that we must apply in determining this issue is not whether we would have dismissed the claimant had we been his employer, but whether the respondent’s response to the conduct falls within a band of reasonable responses which a reasonable employer could adopt.  Having considered the matter carefully, we have concluded that the action of dismissal falls within the band of reasonable responses referred to.

 

29.           We find that the claimant was not unfairly dismissed.

 

 

 

 

 

 

 

Chairman:

 

Date and place of hearing:       21 June 2011, Belfast.

 

Date decision recorded in register and issued to parties: