Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

 

CLAIMANT:                          Don Errol Morrison                                   

 

RESPONDENT                    South Antrim Boiler Services Ltd

 

CASE REF:                          2385/10

 

 

 

CLAIMANT:                          South Antrim Boiler Services Ltd                                 

 

RESPONDENT                    Don Errol Morrison

 

CASE REF:                          2761/10

 

 

DECISION

 

The unanimous decision of the tribunal is that in case reference 2385/10 the claimant was not unfairly dismissed and that the Tribunal has no jurisdiction in case reference 2761/10.

 

Constitution of Tribunal:

Chairman:                Mr Uel A Crothers

Members:                 Dr Carol Ackah

                                    Mr Aubrey Crawford

 

           

Appearances:

The parties appeared and represented themselves.

 

 

 

The Claim

 

1.                  Don Errol Morrison (hereafter referred to as “the claimant”) claimed in case reference 2385/10 that he had been unfairly dismissed by the respondent (“the Company”).  The company in case reference 2761/10 claimed, in the nature of a counterclaim against the claimant, for an amount allegedly due at the date of termination of the claimant’s employment.

 

 

 

The Issues

 

2.         The issues, as agreed by the parties at the outset of the hearing were as follows:-

 

            (1)     Whether the claimant in case reference 2385/10 was unfairly dismissed by the company (“the dismissal”).

           

            (2)     Whether the company in case reference 2761/10 was entitled to a sum for breach of contract by the claimant (“the counterclaim”).

 

Sources of Evidence

 

3.         The tribunal heard evidence on behalf of the company from Yvonne Gowdy, Services Manager, Charles Kerr, Managing Director and David Withers, Administration Director.  The claimant also gave evidence.  The tribunal was presented with bundles of documentation and took into account relevant document referred to it by the parties.

 

4.         The tribunal referred at the outset of the hearing held on 1 February 2010 (which was subsequently postponed at the request of both parties), to the Northern Ireland Court of Appeal Decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – Judgement delivered on 13 October 2009.  It also allowed both parties during the period of postponement of the case to read the decision in detail and to obtain any necessary advice.  Paragraph 29 of the judgement of Morgan LCJ, points out that:-

 

                     “The judgement as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal”. 

 

            The tribunal therefore sought to avoid straying into the “forbidden territory” of making its own determination of the evidence, having taken into account that the claimant was summarily dismissed and that the only hearing was an Appeal Hearing.

 

Findings of Fact

 

5.         Having considered the evidence insofar as same related to the dismissal, the tribunal made the following findings of fact on the balance of probabilities:-

 

            (i)      The claimant was employed by the company as a boiler fitter from

                     22 October 2002.  His gross weekly wage was £381.00 and his net weekly wage was £297.99 at the end of his employment with the company.  The tribunal was shown a contract of employment signed by the claimant dated

                     26 June 2008. 

 

            (ii)     Appendix 2B to the claimants’ contract deals with dismissal and disciplinary procedures for misconduct.  Under the heading of “gross misconduct” the Appendix states as follows:-

           

                               “Committing gross misconduct will lead to a disciplinary hearing during which the employee will be given the opportunity to offer an explanation.  If it is decided that gross misconduct has been committed the employee will be dismissed summarily; ie without notice and without wages-in-lieu of notice”.

 

                     Such a disciplinary hearing was not convened in this case.

 

            (iii)    The disciplinary rules categorise conduct into minor misconduct, major misconduct and gross misconduct.  One of the examples given under “gross misconduct” is “refusal to carry out a reasonable work instruction”, which was relied on by the company in its dismissal of the claimant.  The rules further provide for the right of appeal against any disciplinary decision.  They state that:-

 

                               All appeals must be made within 5 working days of being informed of a disciplinary hearing decision to the admin director stating the basis of the appeal and shall be heard by the Managing Director.  At the appeal hearing the employer will be represented as far as reasonably practicable by a more senior manager than the manager who attended the disciplinary hearing.  … disciplinary action/penalty decisions taken following disciplinary hearings may be implemented before appeals against these decisions are heard”.

 

            (iv)    The tribunal finds it helpful to set out the contents of undated correspondence forwarded to the claimant following a meeting held on 19 July 2010:-

 

                     “Dear Don

 

                     Please find enclosed your P45.  I can confirm that your employment with this company was terminated on 14 July 2010.

 

                     The reason for your dismissal was your failure to attend work on Wednesday 14 July 2010.  You had been told earlier in the week that it was vital that you went to the job at Ulster Carpet Mills in Portadown.  Your failure to come into work caused major problems for us.  Furthermore your personnel record shows that you have had warnings regarding this aspect of your conduct over a long period.  The most recent recorded warning was issued to you in February of this year.

 

                     At the meeting on Monday 19 July we offered an appeal against your dismissal to be held by our company personnel solicitor.  We have tried to contact her without success and believe that her company may be out of business.  We can, however, offer an appeal through our Admin Director, David Withers, in accordance with your Conditions of Employment.  If you wish to arrange this, please contact us and we will arrange a date and time that is mutually convenient.

 

                     As regards your request to forward outstanding pay for your last week you will recall that you were paid in advance for a 40 hour week due to holidays taken by our wages bookkeeper.  This was paid  into your bank account on Friday 16 July.  You were only entitled to a total of 24 hours for that week (16 flat, 1 normal overtime and 7 premium overtime).  You were therefore overpaid by 8.5 hours at flat rate.  Furthermore you are only paid for customary holidays if you attend work the day before and after the holiday.  As you did not attend work on Wednesday 14 July you are not entitled to pay for 12-13 July.

 

                     Please find below listed the situation regarding your annual holidays for 2010:

 

                     Total annual entitlement                      24.0 days

                     2010 holidays taken in 2009                3.5 days

                     Net entitlement for 2010                      20.5 days

                     Accrued up to date of leaving 11.0 days

                     Taken in 2010                                      22.8 days

 

                     As you can see South Antrim Boiler Services does not owe you any holiday pay; in fact you owe the company 11.8 days.

 

                     Finally you left a valuable transformer (cost price £55 + VAT) on a customer site and we have been unable to recover this.

 

                     I am sure you would agree that you are not owed any money by this company.  In fact you owe the company £1035.12 broken down as follows:

 

                     Overpayment for week ending 11 July - £80.96

                     Holidays paid but not accrued - £899.16

                     Loss of transformer - £55

 

                     Yours sincerely

 

                     Charles Kerr

                     Managing Director

 

                     Enc P45; payslip for week ending 11-07-10.”

 

                     The claimant confirmed during the hearing that he had agreed to David Withers hearing his appeal, and also agreed that he would be impartial in conducting such an appeal. 

 

            (v)     The tribunal was shown the claimant’s sickness record.  This was agreed by the claimant and is appended to the decision.  On a number of occasions the claimant contacted the company, usually on Monday mornings, to state that he would not be in work as he was unwell but normally gave an assurance that he would most likely be at work on the following day.  This type of absence had caused problems for the company, in rescheduling its work programme on

                     10 February 2009, 29 September 2009, 30 September 2009, 9 November 2009, 25 January 2010, 31 January 2010, 29 March 2010, and 28 June 2010.

 

            (vi)    As a result of visiting the claimant’s home on 16 July 2010, when the claimant’s wife handed over the company’s keys, a meeting was arranged for Monday 19 July 2010 at 9.00 am.  This was attended by Charles Kerr and David Withers on behalf of the company and by the claimant and his wife.  The circumstances leading to the claimant’s summary dismissal were discussed and he was offered the opportunity of an appeal to David Withers.  The claimant’s case was that the respondent had not complied with necessary procedures and should have warned him instead of dismissing him.  At the date of his dismissal there was one recorded verbal warning outstanding in respect of the claimant’s failure to attend work on 22 January and 25 January 2010.  Other written warnings had already be expunged from the claimant’s record.  The claimant further maintained that the respondent had changed the charge against him to gross misconduct only at the appeal stage.  The tribunal, in assessing the weight given to the evidence by David Withers at the Appeal hearing held on 20 August 2010, also examined the Appeal hearing minutes which were adopted by him as part of his evidence, as being an accurate record of what transpired.  They record the following:-

   “Company Position

                              

                               DW outlined the sequence of events leading to DM’s dismissal:

 

                               This section of the meeting opened with DW making general comments on the 8 years that DM had been with the Company working as a Boiler Fitter.  The point regarding DM’s quality of work was discussed.   This was not an issue in his dismissal and this point was emphasised by DW stating that his quality of work was excellent.  It was stated, however, that DM’s reliability over this period was very poor.

Numerous warnings, both official and unofficial, had been issued over the years that DM had worked in the Company.  One verbal written warning issued on 1 February of this year was still in force at the time of the incident on 14 July.  DM had been told several weeks before his dismissal, after not coming into work, that he was going the same way as another employee, who had been dismissed two years ago.

 

                               The Company has been working at Ulster Carpet Mills in Portadown for many years and every July complete[s] an insurance survey on the steam boilers on the site.  The Company contended that DM would have known this and also that this customer was extremely important to the Company and it was very important that the job was completed on time and to their satisfaction.  The non-attendance of DM on Wednesday, 14 July put the future of this prestigious job in jeopardy.

On Monday, 12 July DM met Charlie Kerr, Managing Director of the Company in Hillsborough.  During their discussions, Charlie said to DM not to “let him down” as he needed him to attend work on Wednesday

                               14 July.

On Wednesday morning at 8.01 am Charlie checked the office answering machine and found a message from DM saying that he would not be in work that day.  Charlie phoned DM’s mobile and left a message saying that if he was not in work within 15 minutes he was dismissed.  He then asked DM’s brother Jeffrey to phone DM to try to make him come into work.  This was also unsuccessful and Jeffrey told Charlie that DM would be available for work on Thursday.  Jeffrey was then told that DM was dismissed.  On Friday Charlie arranged for DM and JM to attend a meeting at the company offices to discuss dismissal.

This meeting attended by Charlie Kerr, DM, JM and DW took place on Monday 19 July.  The reason given for dismissal was non-attendance at work on the previous Wednesday coupled with DM’s poor record in this regard over many years.  The following Tuesday the letter confirming dismissal was sent to DM along with his P45.

 

                               Finally the Company maintains that DM was dismissed for non-attendance at work on 14 July constituting Gross Misconduct punishable by summary dismissal.  The gross misconduct in question relates to refusal to carry out a reasonable work instruction.

 

                               At this point in the meeting DW offered the appellant the chance to discuss with JM in private the Company position.  After some discussion it was agreed that they did want a private discussion and DW and DMcC left the room while this was in progress.

 

                     The claimant’s position is also set out in the appeal hearing notes as follows:-

 

                     “Appellant’s position

 

                     DM stated that he felt he was unfairly dismissed.  Procedures were not correctly followed and a second warning should have been issued rather than a straight dismissal.

 

                     The comment that he was going the same way as an ex-employee who had been dismissed was made in front of other work colleagues and should have been made in private.

 

                     There was no message on his mobile from Charlie Kerr on Wednesday

                     14 July and no contact at all from the Company on Wednesday 14 July.

 

                     DM stated that he wants compensation for dismissal in view of the fact that he has worked for the Company for 8 years and has missed redundancy payment.

 

                     DM stated that he did not remember instruction to come into work when he met Charlie Kerr as he had been drinking and did not remember that the Ulster Carpet Mills job was starting then.

 

                     To summarise, the basis of the appeal is:

 

§         There were procedural irregularities,

§         Comment made by Charlie Kerr should not have been made in front of other employees and

§         DM was not aware of the Ulster Carpet Mills job.”

 

                     It is further recorded in the appeal hearing notes that:-

 

                               “The appeal is dismissed for the following reasons:

 

·        The appellant was dismissed [because] for non-attendance at work on 14 July constituting Gross Misconduct (refusal to carry out a reasonable work instruction) punishable by dismissal.  In view of his very poor attendance record over many years it is decided that this was in fact a reasonable view for the Company to take and summary dismissal was a reasonable option in the circumstances.

 

·        The appellant’s comment that he did not receive a message on Wednesday, 14 July is difficult to understand as the Company phone records show a call being made to DM’s mobile from Charlie Kerr’s mobile at 8.09 am (see attached mobile phone record).  If this call had not been picked up by DM’s mobile voicemail, it would not have shown up at all on Charlie Kerr’s mobile phone bill.

 

·        It is also difficult to understand how the appellant did not know of the Ulster Carpet Mills job or the importance of this.  He has worked for the company for 8 years and the job at Ulster Carpet Mills is completed regularly at this time of year.

 

·        The Appellant was not made redundant.  He was the subject of a dismissal for Gross Misconduct.

 

                                    David Withers

                                    Admin Director

 

                                    Copies to

 

                                    Don Morrison

                                    Charlie Kerr

                                    Debbie McClure

                                    File”

 

            The claimant was accompanied by his wife Jenny Morrison, at the appeal hearing.

 

            (vii)   The tribunal also heard evidence from the claimant relating to his alleged loss.

            (viii)  The tribunal heard evidence from David Withers on 28 March 2011 in relation to whether or not there was more than a 50% chance of the claimant being dismissed in any event, even if a disciplinary hearing had been held in accordance with the company’s procedures referred to previously. 

 

6.         Having considered the evidence insofar as same relates to the counterclaim, the tribunal made the following findings of fact on the balance of probabilities:-

 

(1)          Paragraph 11b of the claimant’s contract of employment states that:-

 

                   “employees may be asked to take annual leave during periods when enough work is not available”. 

 

          Paragraph 15(a) of the contract states that:-

 

                   “where holidays have been taken in excess of accrued entitlement and at the date of termination of employment such excess shall be deducted from final wage payment”.

 

(2)     At the hearing, the company had analysed the situation as follows:-

 

                   “2010 Paid Holidays

                   Don Morrison

 

                   Gross Entitlement                                   32.00 days

                   Carry-over                                               -3.50 days

                   Net Entitlement                                       28.50 days

                   Tot taken                                                 26.75 days

                   Customary Holidays                               4.00 days

                   Annual leave                                           22.75 days

                   Holiday year start date                           1 Jan 10

                   Date of dismissal                                   14 Jul 10

                   Holidays accrued to 14-07-10              10.95 days

                   Overpayment                                          11.80 days

                   Pay rate per day                         £76.20

                   Overpayment                                          £899.00”

 

(3)          During the hearing the claimant agreed to pay the company for three days at £57.83 per day (being the figure relied on by the Company at that stage of the hearing) together with the amount of £80.96 claimed for overpayment for week ending Sunday 11 July 2010.  It further emerged during the hearing that the amount claimed by the company was a gross figure.  The proper calculation is £59.59 x 11.8 = £703.16.  The company had suffered a substantial downturn in business since March 2010 and for the first time in its history requested employees to take Wednesday, Thursday and Friday of Easter week off as an extended holiday.  However, during the period referred to at (2) above, the company was prepared to allow the claimant to perform other types of work during times of work shortage but the claimant chose not to participate and instead took days off as holidays.

 

However, as reflected in the agreed issues before the Tribunal, the claimant did not make a breach of contract claim in this case, and the Respondent is therefore unable to make a counterclaim.  (See paragraph 7(6) below).

 

The Law

 

7.         (1)       The law in relation to unfair dismissal is set out in Rogan as follows:-

 

                        “… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.

 

“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 it 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.

 

(xiii)         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."”

 

Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this 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.

 

[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.

 

“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.

 

[49] The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

 

[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 section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-

 

(1)     the starting point should always be the words of section 57(3) 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 the 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 Homes 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, 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 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’.”

 

            (2)       At paragraph 26 of Rogan, Morgan LCJ states as follows:-

 

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

 

                        Again at paragraph 27 of his judgment, Morgan LCJ states:-

 

                                    “In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.

 

                        In paragraph 28 he continues:-

 

                                    “The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence.  None of this is an indicator of a lack of reasonable investigation”.

 

                        Girvan LJ in paragraph 7 of his judgement states as follows:-

 

                                    “The investigation was one which was reasonable in the circumstances.  It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellant court would subject a tribunal decision.”

 

            (3)     The tribunal also considered the Court of Appeal decision in Octavious Atkinson and Sons Limited v Morris [1989] IRLR 158 CA which held that where an employee is summarily dismissed during the course of a working day, and no question arises as to whether that dismissal constitutes a repudiation by the employer which the employee has not accepted, both the contract of employment and status of the employee cease at the moment when the dismissal is communicated to the employee. 

 

            (4)     Harvey on Industrial Relations and Employment Law at D1[2794] states as follows:-

 

                     “the modified dismissal and disciplinary procedure is limited to cases in which dismissal has already taken effect.  In such cases the employer is required to provide the employee with information regarding the reasons for dismissal and to permit the employee to appeal against that decision”.

 

The modified procedure is found in Schedule 1 to The Employment (Northern Ireland) Order 2003 which provides as follows:-

 

                                    “4.        The employer must –

 

                                    (a)       set out in writing -

 

                                               (i)        the employees alleged misconduct which has led to the dismissal,

 

                                               (ii)       what the basis was for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct, and

 

                                               (iii)       the employee’s right to appeal against dismissal,

 

                                    (b)        send the statement or a copy of it to the employee.

 

 

                                                Step Two:  appeal

 

          (5)  -                  (1)       If the employee does wish to appeal, he must inform the employer.

 

                                    (2)       If the employee informs the employer of his wish to appeal, the employer must invite him to attend a meeting.

 

                                    (3)       the employee must take all reasonable steps to attend the meeting.

 

(4)       after the appeal meeting, the employer must inform the employee of his final decision.”

 

(5)     Article 130(A) of the 1996 Order refers to automatically unfair dismissal.  A Tribunal must consider whether a dismissal is automatically unfair under Article 130(A) even where this has not been pleaded (Venniri v Autodex Ltd (EAT/0436/07)).  A dismissal will be automatically unfair if the Statutory Dismissal and Disciplinary Procedure applies, the procedure has not been completed, and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.  (Article 130A(1)).  Furthermore, subject to the forgoing, failure by an employer to follow a  procedure in relation to the dismissal of an employee shall not be regarded as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure (Article 130A(2)).  This only arises where the statutory procedures have been complied with.  Moreover compliance with the statutory procedures is a necessary, but not a sufficient prerequisite for a employer attempting to show that a dismissal was fair.  An employer may satisfy the requirements of the statutory procedures, but the dismissal may nonetheless still be unfair under the general test of fairness set out at Article 130(4) of the 1996 Order.  Thus, applying the case of Polkey v AE Dayton Services Limited (1987) IRLR 503HL, (“Polkey”), where the procedures have been complied with but there is a breach of procedures other than statutory procedures, and the employer can show more than a 50% chance that he would have dismissed the employee anyway, the dismissal is fair (Article 130A(2)).  Polkey will therefore be inapplicable and there is no question of compensation at all. 

 

            (6)     The provisions of the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 apply to the counterclaim as being a claim for a sum due by the claimant to the company which is outstanding on the termination of the employment of the claimant against whom it is made. (Article 4).  However, an employer can present its own contract claim only as a counterclaim raised against the employee’s contract claim (Article 4(d)).

 

Submissions

 

8.         The claimant did not make any oral submissions.  The respondent made brief oral submissions.

 

Conclusions

 

9.         The tribunal, having carefully considered the evidence together with any submissions, and having applied the principles of law to the findings of fact concludes as follows:-

 

            (1)     The tribunal is satisfied that the effective date of termination of the claimant’s employment was 14 July 2010.

 

            (2)     The tribunal is satisfied on the evidence that, even if a disciplinary hearing had been convened, there was more than a 50% chance that the claimant would have been dismissed in any event.

 

            (3)     The tribunal finds it helpful to replicate the statement of issues in Paragraph 15 of Rogan, duly adapted as follows:-

 

                     Was the dismissal of the claimant by the respondent fair in all the circumstances?  In determining this primary issue the Tribunal should consider the following:

 

(a)          Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

 

(b)     Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

 

(i)            Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

 

(ii)     At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the

                                    matter as was reasonable in all the circumstances?

 

   (c)   Was the dismissal a fair sanction in the circumstances?

 

   (d)  Was the claimant afforded an effective right of appeal in the circumstances?

 

(4)     The tribunal concludes that the answers to the above questions are in the affirmative.

 

(5)     In relation to the counterclaim the tribunal concludes that it has no jurisdiction as the claimant had no breach of contract claim before it.

 

 

 

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:     1 and 25 February 2011 and 28 March 2011, Belfast.               

 

Date decision recorded in register and issued to parties: