Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/00715_11IT.html
Cite as: [2011] NIIT 00715_11IT, [2011] NIIT 715_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 715/11

CLAIMANT: Carlos Cardia

RESPONDENT: Moy Park Ltd

DECISION

The unanimous decision of the tribunal is that the claim of unfair dismissal is dismissed in its entirety.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Members: Mrs T Hughes

Mr M Roddy

Appearances:

The claimant was represented by Mr N Gillam, Barrister-at-Law, instructed by Donnelly and Kinder Solicitors.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed on behalf of the respondent, by Ms Karen Fraser, In-house Solicitor.

THE ISSUES

1. Was the claimant unfairly dismissed by the respondent in or around 6 December 2010 contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (ERO)?

THE FACTS

2. The tribunal heard evidence from Mr John Leathem, Mr Richard Weatherall, Mr Raymond McCrory, Ms Sarah Laverty, Mr Sean McKeever, Ms K Fraser and the claimant. The claimant‘s first language is not English. While the claimant is capable and willing to speak in English, an interpreter was present and sworn in, at the hearing, to be available to the claimant in the event that he didn’t understand any particular words used by the parties present. The tribunal was also referred to a number of documents identified at hearing as R1 (the agreed bundle of documents consisting of 226 pages). The tribunal received submissions from representatives for both parties. On the basis of the evidence, we make the following findings of fact in relation to the alleged unfair dismissal.

3. The claimant was employed by Moy Park Ltd on 25 October 2002 initially starting on production lines. After a year he transferred at his request to work as a hygiene worker. The claimant in that role also provided cover, when others were on holiday or sick leave, as a fork lift driver. He carried out that role from 2003 until his dismissal on 6 December 2010. The frequency he could be called upon to drive a fork lift truck was 1 to 3 times a week.

4. The first-named respondent operates a number of factories within Northern Ireland including Craigavon and Dungannon. Each of those sites employed in excess of 1,000 employees and the total number employed by the respondent in Northern Ireland is between 2,200 to 2,250 persons. All staff when initially employed undergo an induction which includes health and safety training.

5. The claimant had received training in fork lift driving with the most recent occurring on 21 January 2010 for which he received a certificate of accreditation.

6. On 12 November 2010 the claimant was driving a fork lift vehicle on the respondent’s premises when he was involved in a collision with a shunter being driven by another employee of the respondent a Mr James Millar. The collision occurred shortly after midnight on that date. There were no independent witnesses to the collision or CCTV. Both the claimant and Mr Millar made brief statements to the respondent’s management when they first reported the collision. The initial statements indicated the shunter collided into the fork lift truck when it slid while trying to stop to let the fork lift pass. Both indicated that no injury had been sustained. The incident was initially recorded by management as a “Near Miss Report”

7. The claimant finished his shift round 4.00 am. The claimant returned for duty by way of overtime at 12.00 noon on 12 November 2010. The claimant’s initial duty involved assisting in the movement of machinery. Two hours or so into his shift the claimant reported to his dayshift manager that he felt pain on his side. An accident investigation was carried out by Alex Vasloncelos on 12 November 2011. During this investigation the claimant made a statement which recorded not only the collision but that “when he hit me, the fork lift’s seatbelt got loose and I was thrown out of the fork lift. I fell on the floor but got up straight away due to being scared at the size of the truck and because I didn’t feel any pain at the time”. The claimant sought permission to leave this shift early to go to hospital for a check up.

8. Mr John Leathem, a business unit leader, was on holiday at the time the collision occurred. Upon his return from holiday, in or about 17 November 2010, he was requested by the respondent’s Human Resources section, to carry out a full investigation. He had access to the initial report form completed by Alex Vasloncelos on 12 November 2010 but there were sections incomplete. He requested Sharon Dawson to complete a full accident report form. He understood this was carried out the same day as his request. As part of this investigation a third statement was recorded by Sharon Dawson from the claimant and Mr Millar. Mr Leathem interviewed various persons between 17 November and 1 December 2010 as part of his investigation. The interviews included the staff to whom the incident was first reported, Mr Neil Stewart and Sharon Dawson, as well as the claimant and Mr Millar. Mr Leathem also prepared a rough sketch plan of the yard and had the claimant and Mr Millar mark out the routes of their vehicles on the night in question. His investigation identified that unsafe methods of work as well as the environmental conditions contributed to the collision. He identified a need to carry out checks on the tyres of the shunter and the seat belt of the fork lift truck to assess what role if any they played in the collision and its after effect – in particular the falling out of the fork lift truck by the claimant. Those checks led to a report that no fault had been found with the seat belt in the fork lift truck involved in the collision. Mr Leathem raised with the claimant at a meeting on 1 December 2010 various divergences between the claimant’s and Mr Millar’s accounts; the results of the inspection of the seat belt post collision and the maintenance record for the fork lift truck including its maintenance check in September 2010. He established with the claimant that no report of a faulty seatbelt was made by the claimant immediately after the collision. The claimant was aware he had a duty to report apparent defects in equipment to management as soon as possible. The reason given by the claimant was “because he was in a panic”. Mr Leathem passed his findings to another manager, Mr Weatherall, with the documentation created or included in his investigation.

9. Mr Richard Weatherall was a business unit leader at the time of the collision. Since 2003, when he was accepted on the respondent’s trainee management scheme, he has been continuously employed with the respondent. He has been on a number of courses concerning disciplinary procedures, the most recent one occurring a year before this accident. Mr Weatherall was allocated this disciplinary case by the Human Resources department of the respondent. In conjunction with human resources staff he determined that the charge should be gross misconduct – namely the deliberate ignoring of health and safety rules and therefore endangering his own or another’s physical well being or safety. While the letter notifying the claimant of disciplinary action did not specify the exact act or acts which founded the disciplinary charge – at hearing Mr Weatherall gave evidence the deliberate ignoring of health and safety was a failure to wear a seat belt on 12 November 2011. In the absence of any fault being identified with the seat belt this witness and the personnel within human resources concluded that the reason the claimant fell out of the fork lift on impact with the shunter was because the seat belt was not being worn by the claimant.

10. The respondent had various policy documentation relevant to the health and safety of employees. It was not in dispute between the parties that, both in the fork lift training provided and on the documentation signed as an accredited fork lift operator in January 2010, there was a clear instruction given to the claimant that use of the seat belt provided was a health and safety requirement.

11. The respondent had a written policy of “General Rules and Disciplinary Procedures”. The list of examples given of the three recognised types of misconduct – minor, major and gross – are stated not to be an exhaustive list. Minor misconduct included “ignoring safety, hygiene and security rules”. Major misconduct included “serious neglect of safety/hygiene/security rules” and gross misconduct included “Deliberately ignoring safety/hygiene/security rules and therefore endangering one’s own or another’s physical well being or safety”. Principles of the disciplinary procedure include an investigation at which the employee could be accompanied by a shop steward or colleague, before any form of disciplinary action is taken. Further Paragraph 3.4.2 sets out the pre-hearing procedure which includes “In the event the Company does wish to take disciplinary action it will issue a written statement to the employee setting out the employee’s alleged conduct or other matter which has led the company to consider taking disciplinary action against the employee. The statement will be delivered....and given sufficient time to consider the statement prior to the meeting”. The letter issued to the claimant inviting him to the disciplinary hearing referred to the disciplinary rule alleged to have been broken. No statement was enclosed as set out in the respondent’s procedure. There was a reference to “enclosed investigation notes” but no witness called on behalf of the respondent had personal knowledge as to what notes were enclosed if any. The claimant alleged at hearing no notes were enclosed. The tribunal concluded that on a balance of probabilities they could not be satisfied that notes were enclosed with the letter dated 3 December 2010.

12. The disciplinary hearing lasted 26 minutes before Mr Weatherall rose to consider his conclusion. The notes provided of the disciplinary hearing show that most questions were about the seatbelt. Mr Weatherall did not have before, during, or after the disciplinary hearing access to the claimant’s personnel file. He did not give any cognisance to the claimant’s previous disciplinary record in reaching his conclusion about the appropriate penalty. No record of his 14 minute discussion with human resources personnel, post the disciplinary hearing and prior to announcing his conclusion, was made by him or the relevant staff member from human resources. Mr Weatherall displayed and admitted a lack of knowledge regarding the Labour Relations Agency Code of Practice on Grievance and Disciplinary Procedures, hereinafter referred to as the LRA Code. This was his first involvement in a disciplinary hearing which concluded dismissal of an employee was the sanction to be imposed. Mr Weatherall at hearing admitted he was unsure the claimant knew that a failure to wear a seat belt would lead to dismissal however he had concluded dismissal was warranted given the potential seriousness of fatal injury when such basic health and safety requirements exist and are ignored. Mr Weatherall did not appear to concern himself with ensuring before commencing a hearing that the respondent had complied with its own contractual procedure.

13. The claimant exercised his right of appeal by letter dated 7 December 2010. In his letter of appeal he stated that “I know that I have the seatbelt on, but maybe not properly on, and I know this accident was not my fault...I have work in Moy Park for nine years and I have never broke any rules.. I would be grateful for another chance to be a Moy Park employee”. The appeal was heard on 14 December 2010 by Mr Raymond McCrory, a production manager for the Craigavon site. Mr McCrory was in that managerial role for 16 years of his 23 years service with the respondent. Mr McCrory had received training in disciplinary appeals, his most recent training occurring some 3 to 4 years previous to this accident. He had the full investigation notes, drawings and the company handbook and carried out a site visit to the relevant accident location. He also had the claimant’s personnel file in front of him at the appeal hearing. The appeal lasted less than 10 minutes. The accuracy of the notes of the appeal hearing were disputed at this hearing. Conflicting evidence was given by two of the three relevant witnesses present at the appeal hearing. The tribunal did not find either Mr McCrory or Mr McKeever, the full time trade union representative, convincing witnesses as to what was said during the appeal hearing. The tribunal found the claimant the most credible witness on this aspect of the appeal process. The claimant confirmed at hearing that many of the comments recorded in the appeal notes attributed to Mr McKeever he could remember either being said or something similar being said.

14. The appeal hearing took less than ten minutes. Mr McCrory on his own admission failed to note or identify any breach of the company’s own procedures, in particular, the lack of a statement that an employee should receive when invited to a disciplinary hearing. He concluded from the letter of appeal submitted by the claimant that the claimant had “told lies” during the disciplinary process. He also concluded the claimant was partially at fault for the collision although no questions were put by him to the claimant, at the appeal, as to any facts grounding such a conclusion. Mr McCrory concluded the claimant was seeking clemency by way of redeployment in the factory. The witness could not identify any actions taken by him after the appeal hearing regarding his determination of the appeal but confirmed no contact was made with Human Resources to ascertain what penalty if any had been imposed on other staff found guilty of breaches of health and safety policy or rules.

15. The claimant accepted the accuracy of the notes of the investigation produced by the respondent. The claimant described his preparation for the appeal which included writing his letter of appeal on the advice and direction of his shop steward. The claimant was not offered an opportunity to meet with the trade union representative prior to the day of his appeal. On the day of his appeal, as the trade union representative was late arriving due to other commitments, the claimant was introduced to his representative just before they went into the appeal hearing. No discussion was held with the claimant about the approach to be taken during the appeal.

16. The claimant gave evidence at the tribunal hearing that not all staff wear the seat belts provided but when management observed this behaviour in the past they usually just reminded employees to put on their seat belts. However the claimant was not prepared to name employees who indulged in such behaviour and no contention of such acceptance of breaches of health and safety were made to those members of management who conducted the disciplinary and appeal hearings. The claimant had never received any warnings prior to 12 November 2010 for not wearing his seat belt. In the claimant’s experience people were normally dismissed by the respondent for stealing, missing work or fighting on premises. The claimant confirmed to the tribunal they would be correct to conclude that different penalties applied to different breaches of the respondent company’s rules. He also did not dispute that management at Moy Park invariably investigated any breach known to them and more often than not such investigation led to disciplinary action. The claimant accepted at no time prior to this tribunal hearing did he or his trade union representative raise the issue of other people not wearing seat belts or of him being treated differently by the respondent’s managerial staff. The claimant and his partner, Ms Sarah Laverty, gave evidence as to his many attempts to find alternative employment since his dismissal. Both of them were credible witnesses as to the job applications made by the claimant since his dismissal.

Relevant law

17. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

18. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130- (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 principal reason) for the dismissal and

(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as 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 administrative 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.”

19. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined principally in the judgements of Mummery LJ in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“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, it 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 themselves 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 them, 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.”

20. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a sexually suggestive remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

21. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal was again considering a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the counsel’s case on appeal that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

Decision – unfair dismissal

22. The tribunal received a written submission from the respondent’s legal representative and an oral submission from counsel acting on behalf of the claimant. There was no difference between them as to the relevant law to be applied by the tribunal. However each made certain submissions as to how the tribunal should interpret the evidence it had heard from the witnesses. The respondent approach can be summarised as the claimant knew what misconduct he was accused of and that the procedure adopted by the respondent satisfied its obligations in law. The sanction imposed fell within the range of responses for a reasonable employer who like this respondent took health and safety issues very seriously and matters raised before the tribunal were not raised earlier when the claimant was involved in the disciplinary process. The claimant’s approach highlighted failures of the respondent to adhere to the guidance provided to employers in the LRA Code and the approach adopted by Mr McCrory before he commenced the appeal hearing. There was no clear statement in the respondent’s documents that failure to wear a seat belt is a dismissible offence. Even if the tribunal find that the respondent had a genuine belief after a reasonable investigation in the misconduct, the penalty imposed was not proportional or appropriate to the offence. The claimant relied on Harvey on Industrial Relations and Employment law D1 Paragraph [1535] where dismissal can be unfair when the penalty was “perverse and irrational”.

23. Both parties agree the tribunal has to be careful not to substitute its own view for that of the employer. The tribunal took into account all the steps taken by Mr Leathem in the course of his investigation as set out at Paragraph 8 above and concluded that his investigation was thorough. While no documentary evidence was produced at hearing of the training provided to the respondent’s witnesses as their claims of training was not challenged by the claimant the tribunal accepted the details furnished in evidence.

24. Mr Weatherall when making the decision had before him various witness statements and interview notes that were collected during Mr Leathem’s investigation. On the basis of those statements and notes, Mr Weatherall had reasonable grounds to conclude that the claimant had failed to secure his seat belt in the fork lift truck on the night in question. It is clear from the notes of the investigation hearing held by Mr Leathem with the claimant that the results of the subsequent testing of the seat belt post collision was discussed as part of the investigation. Further during the disciplinary hearing the maintenance record of the fork lift truck was outlined to the claimant.

25. The tribunal is satisfied that the respondent conducted a reasonable investigation, judged against the objective standards advocated in Sainsburys Supermarket Ltd v Hitt and that the respondent held a genuine belief as to the guilt of the claimant in respect of the disciplinary charge. It is clear the claimant knew what he was accused of and was given an opportunity to state his case. The tribunal did not consider there was any failure of natural justice due to the failure of the respondent to provide a statement of the conduct as required by Paragraph 3.4.2 of the respondent’s policy. It was clear the claimant knew from the investigation hearings, in particular the hearing held on 1 December 2010 that the respondent was querying whether or not he had breached health and safety by failing to wear a seat belt while driving the fork lift truck. Accordingly the employee had been informed of the nature of the case against him – see Hussain v Elonex plc [1999] IRLR 420.

26. The claimant’s representative contended that the dismissal was unfair as the claimant did not know he could be dismissed for not wearing a seat belt. The tribunal noted that when the claimant was asked directly by his own representative “were you ever told not to wear a seat belt was gross misconduct” the claimant answered “told us to always wear a seat belt”. The tribunal also noted that the LRA Code at Paragraphs 57 to 59 specify as examples of gross misconduct “a very serious breach of health and safety rules”. The tribunal did not find this contention credible against the background of the instructions on the health and safety training slides as well as the various references to health and safety provisions within the respondent’s company procedures. The tribunal were satisfied on a balance of probabilities that the claimant knew that failure to wear a seat belt would leave him vulnerable to disciplinary procedure which could result in dismissal.

27. The real issue in this claim appeared to the tribunal, as the hearing progressed, to be whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it, the failure to wear a seat belt, as a sufficient reason for dismissing the employee taking into account the equity and substantial merits of the case. It is clear to this tribunal Mr Weatherall’s training in disciplinary procedures require updating as he was clearly ignorant of the requirement for him as decision maker to acquaint himself with the employee’s personnel record before determining the appropriate penalty. Further he appeared to have no knowledge of the LRA Code. It is well known that a failure to follow any part of that Code can be taken into consideration by a tribunal in reaching its conclusions on the fairness of a dismissal. Mr Weatherall failed to check all company procedure had been complied with as part of his role in conducting the disciplinary hearing. The tribunal were unimpressed by the failure of Mr Weatherall to record the 14 minutes discussion he held with human resources personnel which culminated in his decision to dismiss the claimant – a breach of Paragraph 51 of the LRA Code. The tribunal concluded that the decision to dismiss was not solely the decision of Mr Weatherall but was a decision made by him in conjunction with the relevant human resources staff member who participated in the 14 minute discussion. The tribunal were referred to certain paragraphs of the Code of Practice by the claimant’s representative and it accepts that Mr Weatherall failed to take into account all but one of those matters specifically mentioned in Paragraph 18 of the LRA Code. However a failure to follow any part of the LRA Code does not, in itself, make a person or organisation liable to proceedings. The breach is just one of the factors to be taken into consideration by the tribunal.

28. The conduct of the appeal hearing is also vulnerable to criticism given Mr McCrory on minimal evidence concluded that the claimant had “lied” during the investigation and disciplinary process but he did not put this conclusion to the claimant to allow him to explain his apparent concession that the seat belt might not have been “properly“ secured. He, like Mr Weatherall, did not concern himself with ensuring the respondent’s disciplinary process had been conducted in accordance with company procedure. He identified none of the deficiencies identified during this hearing. However the case presented to him at appeal did not resemble the case made on behalf of the claimant before this tribunal. During the respondent’s disciplinary or appeal procedure the claimant did not include any allegation of a breach of company procedures or of similar behaviour by other employees being handled by management in a different manner. In the absence of such evidence being presented or a similar contention being made at the relevant time in the disciplinary process, it is impossible for the tribunal to give these allegations credence. It was submitted to this tribunal on behalf of the claimant that no where in any of the documents is there a clear statement that failure to wear a seat belt is a dismissible offence. It is noteworthy this was also not an argument put during the appeal hearing to Mr McCrory. More importantly the decision of the respondent to dismiss can only be viewed in the light of the evidence it had in its possession at the relevant time in December 2010.

29. The claimant’s case in the appeal hearing and the submission made to this tribunal was essentially that the penalty imposed was not proportional to the offence. The tribunal took careful note of the documentation available to it in particular those documents relating to the training and instruction provided to the claimant as well as his evidence. It appeared clear to us that the claimant knew very well that the wearing of his seat belt while driving a fork lift truck was an essential part of the respondent’s health and safety requirements. The signing by employees of the document found at Page 82 of the agreed bundle of documents could only have emphasised to staff that they were accepting an obligation to take the steps detailed on the form as appropriate for the safe operation of that machinery. It does seem the respondent could have taken an obvious opportunity with this form to make clear to staff the disciplinary penalty for a failure to adhere to this commitment. It appears to this tribunal to be an obvious step that would provide clarity to all staff as to the nature and consequences of the obligations being undertaken when agreeing to operate this equipment. However the failure to put such a consequence in writing on this form cannot be taken in isolation from the other documentation.

30. The copy of the PowerPoint presentation of the training provided to staff and the direct evidence of the claimant was that he knew he was required to always wear a seat belt when operating the fork lift. There was no evidence presented to this tribunal of an inconsistent approach with regard to compliance with the requirement to wear seat belts. No discovery had been sought in respect of past breaches of health and safety disciplinary action and the outcome. The issue of inconsistency was never raised with either employee who conducted the disciplinary or appeal hearings. The respondent complied with the minimum requirements of the three stages of the statutory dismissal procedure. The claimant was offered an appeal process and while the appeal process was conducted in an imperfect manner by both Mr McCrory and the trade union representative, the matters raised with this tribunal as to an incorrect classification of the conduct and possible inconsistency as to the penalty, were not raised at any time with the respondent. The tribunal had some reservations that Mr McCrory’s handling of the appeal was fair to the claimant but we were forced to conclude when all the evidence was balanced against each other, we could not be satisfied that a fairer hearing would have been likely to result in a different outcome. The main reasons for this conclusion is that many breaches of health and safety can lead to employers being placed before courts and liable to a criminal prosecution and penalty. It is a reflection of the importance given by society to the duty of care imposed on employers for those they employ. It appeared clear to this tribunal this respondent took their duties in Health and Safety seriously – reflected in the many references in the company documentation to disciplinary penalties for failure to adhere to legal requirements or other conduct which could place people or products at harm. The tribunal noted that according to the respondent’s policy “depending on the severity of the offence, disciplinary action will take one of the following forms, verbal warning, written warning, a final written warning and dismissal”. Dismissal could be with or without notice. The tribunal found nothing to support the claimant’s submission that the respondent’s penalty was “perverse or irrational”. The tribunal considered the claimant’s case, when distilled down from the evidence, was that a final written warning instead of the penalty of summary dismissal would have been “fair”. It appeared to this tribunal on the evidence before the respondent both at disciplinary hearing and at appeal, that while dismissal without notice could appear harsh to some persons, there was little or no evidence placed before the tribunal that supported a conclusion, on a balance of probabilities, that such a sanction did not fall within the band of reasonable responses open to a reasonable employer in these circumstances. The dismissal was therefore a fair dismissal.

31. Accordingly the claimant’s claim is dismissed.

Chairman:

Date and place of hearing: 17 – 18 October 2011, Belfast

Date decision recorded in register and issued to parties: