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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mackin v Reisswolf NI Ltd [2012] NIIT 01545_11IT (02 February 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01545_11IT.html
Cite as: [2012] NIIT 01545_11IT, [2012] NIIT 1545_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1545/11
CLAIMANT: Vincent Paul Mackin
RESPONDENT: Reisswolf NI Limited
DECISION
The unanimous decision of the tribunal is that claimant’s claim of unfair dismissal is dismissed.
A complaint of unlawful deduction from wages and breach of contract was dismissed following notification of a conciliated settlement entered into by the parties with the assistance of the Labour Relations Agency. The settlement includes an agreement by the claimant to refrain from continuing this part of the proceedings.
Constitution of Tribunal:
Chairman: Ms J Knight
Members: Mr H Stevenson
Mr J P Magennis
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by Rosemary Connolly Solicitors.
ISSUE TO BE DETERMINED BY THE TRIBUNAL
1. The sole remaining issue to be determined by the tribunal was whether the claimant was unfairly dismissed by the respondent?
EVIDENCE
2. The tribunal heard the oral evidence of the respondent’s witnesses, Mr Brendan Durkan, Ms Elaine Rooney, Mrs Lorraine Rooney and Ms Emma Lewis; and of the claimant, Mr Vincent Mackin and his partner Ms Joan Lockhart. The tribunal considered documentation to which it was referred by the parties during the course of the hearing.
3. The tribunal at the outset of the hearing rejected an application on behalf of the respondent to rule inadmissible transcripts of tape recordings made covertly by the claimant of meetings which took place on 14 June 2011 on the premises of Prestige Employment Services Limited. The tribunal gave full reasons for this ruling at the hearing but in summary, was satisfied that the transcript was both relevant and of probative value to the issues which it had to determine.
FACTS
4. The tribunal made the following findings of relevant fact:
5. The claimant was employed as an HGV lorry driver by the respondent company from 22 February 2010 until his dismissal with effect from 17 June 2011. The respondent company is based in Newry and its business is the collection and disposal of confidential data from business customers throughout the island of Ireland. Mr Brendan Durkan is the Managing Director of the respondent and carries out a number of roles within the company. Before the events in June 2011 leading to the claimant’s dismissal, Mr Durkan had friendly personal relationships with the claimant and his partner Ms Joan Lockhart. The respondent placed an advertisement in the Newry Reporter in May 2011 for 2 drivers as part of a contract tendering process by the respondent’s parent company. In the event no one was appointed as the tender was unsuccessful.
6. On 2 June 2011, the claimant received a telephone call from Mr Raymond Burns, the office manager, asking him to do a run to Cork on Friday, 3 June 2011. The claimant initially agreed to this. The claimant told the tribunal that after his conversation he did a rough calculation of how long it would take him to do the trip by which time he had arrived back at the yard. He went into the office and asked Mr Burns if “he was having a laugh about doing this trip?” He stated that he could not do the trip legally. Mr Burns told him to phone Mr Durkan. The claimant phoned Mr Durkan and told him that he could not do the trip legally in one day. The claimant was “heated and annoyed” that he was being asked to go to Cork. Mr Durkan told him that he was not asking him to break the law and if necessary the trip would have to go into a second day. The claimant accepted at the hearing that he was abusive towards Mr Durkan. Mr Durkan told him that if he was refusing to do the run, he was suspended. The claimant’s contractual hours were Monday to Friday 6.00 am until 6.00 pm with paid lunch and tea breaks. The claimant was entitled to take time off in lieu of hours worked in overtime. The claimant had on previous occasions carried out runs which required him to stay out overnight. A £60 bed and breakfast allowance was available on these occasions. Mr Durkan told the tribunal that had the claimant not been able to drive the following day because he had exceeded maximum driving times, someone could have been sent to pick him up. Mr Durkan accepted that this had not been mentioned during this telephone but this was because the claimant kept interrupting him. There was no evidence before the tribunal as to the driving hours of the claimant during that week.
7. The claimant left the office and his partner, Ms Lockhart arrived at the yard. The claimant explained to her that he had been suspended and she suggested that he speak with Mr Durkan. Mr Durkan returned to the yard shortly afterwards and walked straight over to the office trying to avoid the claimant. The claimant followed him to the office and an altercation took place in the yard. Ms Lockhart did not witness this whole episode as she had been moving her car. When she came on the scene it was to witness the two men in a face to face standoff. The tribunal accepted that Ms Lockhart said that she started to “give out” to Mr Durkan who asked her to leave the yard as she did not work for him. Mr Durkan then walked into the office and told the claimant that he would contact him the following day.
8. On 3 June 2011 Mr Durkan sought advice from his solicitor who drafted a letter to the claimant confirming his suspension and that he would be invited to a disciplinary hearing. Mr Durkan was referred to Prestige Employment Solutions Limited (PES) for advice about the disciplinary process. Mrs Lorraine Rooney, Director and HR specialist advised Mr Durkan. Mr Durkan prepared a written statement of his own account of what happened on 2 June 2011 and spoke to employees about what they had witnessed. He made notes about their responses. Mrs Rooney drafted the letter sent to the claimant on 8 June 2011 to attend a disciplinary hearing on 14 June 2011 to investigate two charges of gross misconduct, namely the “failure to carry reasonable duties (Cork run) on Friday 3 June as requested Thursday 2nd June” and “your attitude towards me on Thursday 2nd June” and a further “misconduct” of “your refusal to forward any vetting details as requested.” Mr Durkan’s statement and his notes referred to above were enclosed with the letter. The claimant was advised that he was entitled to be accompanied at the meeting by a “work colleague or an accredited trade union official of your choice”. The claimant’s contract provided that “you may be accompanied by a colleague or friend of your choice”. Neither Mr Durkan nor Mrs Rooney read the claimant’s contract before writing to the claimant. Mrs Rooney erroneously assumed that the provisions for the right to be accompanied at a disciplinary hearing, as set out in the Labour Relations Agency Code of Practice, applied. The tribunal was satisfied that the claimant had previously been provided with a copy of his contract or the disciplinary in or about May 2010, but had not been referred to this document in the letter of invitation.
9. The disciplinary hearing was to be conducted by Mr Durkan with Mrs Rooney acting as note taker. On 14 June 2011 the claimant attended at the offices of PES accompanied by a friend, Mr Ciaran Coleman. The claimant taped this meeting through means of a tape recording device concealed in his pocket. He did not inform Mr Durkan or Mrs Rooney that he was making the recording. The transcript of the recording, in the event, was the only record of the meeting. Mrs Rooney informed the claimant that Mr Coleman was not entitled to be at the meeting as he was neither a work colleague nor an accredited trade union representative. The tribunal was satisfied having read the transcript that Mr Coleman was aggressive and abusive, raising his voice, during this exchange and that Mr Durkan and Mrs Rooney felt intimidated by his behaviour. The meeting did not proceed as Mr Coleman told the claimant to “forget about the meeting today”. Mrs Rooney said that the meeting could be rearranged for a later date and Mr Coleman asked what would happen if the claimant did not attend the meeting. Mrs Rooney addressed the claimant and told him that it could proceed in his absence and a decision reached on the available evidence. Mr Coleman and the claimant left the office and a letter was drafted to the claimant rescheduling the meeting for the 16 June 2011. This again stated that the claimant could be accompanied by a “work colleague or an accredited trade union representative”. Mr Durkan then left the building and the letter was delivered by taxi to the claimant’s parents’ house.
10. Meanwhile the claimant and Mr Coleman returned to PES’ office and asked to speak with Mrs Rooney. She spoke with them in the reception area and again the claimant secretly taped this conversation. Mr Coleman asked for a definition of co worker and requested a copy of the claimant’s contract of employment which was duly provided. The claimant and Mr Coleman left again and at 3.10 pm the claimant telephoned Mrs Rooney and pointed out that his contract specified that he could bring a friend to the disciplinary hearing. Mrs Rooney then read the contract herself and rang Mr Durkan and left a message for him. When he rang her back she explained to him that the claimant had the right to have Mr Coleman in the meeting. Mr Durkan then rang the claimant on his work mobile phone and left a message as it was switched off. Mr Coleman and the claimant returned again to PES’ office. Mr Coleman was calm at this point and apologised to Mrs Rooney for his earlier behaviour. Mrs Rooney advised the claimant that she had spoken with Mr Durkan who intended to ring the claimant himself but that he would be permitted to be accompanied by Mr Coleman at the reconvened hearing on 16 June 2011. Mr Coleman said that he could not be sure that he would be available that day and the claimant asked what would happen if he did not attend. Mr Rooney advised the claimant that he should attend as it was his opportunity to have his say about the allegations against him. Mr Coleman commented “He’s going to sack you anyway”. Mrs Rooney said this wasn’t the case and advised that in this event the claimant would have the right to appeal against dismissal.
11. After the meeting the claimant rang Mrs Rooney to discuss the letter which had been delivered earlier that day to his parent’s house. As she was not available, the claimant rang Mr Durkan at 4.40 pm. The tribunal is satisfied that Mr Durkin explained that the claimant could have Mr Coleman present at the meeting on 16 June 2011 and that he further commented that Mr Coleman had not done the claimant any favours.
12. On 16 June 2011 the claimant rang the PES’ office and spoke with Emma Lewis the receptionist as Mrs Rooney had not arrived into work at that time. Ms Lewis’ clear recollection, which was accepted by the tribunal, was that the claimant stated that he would not be attending the meeting and that when asked why not, he declined to give a reason. The claimant told the tribunal that he stated that he was unable to attend but accepted that he did not give any reason for this at the time. He said this was because he was still unwell from the night before and was unfit to attend. The claimant produced at the hearing a note from his GP dated 29 November 2011 which confirmed that the claimant had attended at the surgery on 21 June 2011 due to “work related stress” and “new onset of diarrhoea, insomnia and anxiety”.
13. Mrs Rooney informed Mr Durkan who decided that the disciplinary meeting would proceed in the absence of the claimant. Mr Durkan’s decision was to uphold all of the disciplinary charges and to dismiss the claimant. His evidence to the tribunal was that he wished to get things sorted out with the claimant and had he attended, he may not have dismissed him.
14. A letter was sent to the claimant on the same day informing him of his dismissal and setting out the reasons for dismissal. A template letter was used which refers to the right to be accompanied by a work colleague or accredited trade union representative. Somewhat surprisingly, given the very recent controversy between the parties on this very point, Mrs Rooney did not suggest that this aspect of the template letter should be amended to reflect the actual circumstances. The claimant was advised of his right to appeal in writing to Mrs Marmion, the other director of PES who had not had any previous involvement in the process.
15. On 22 June 2011 the claimant wrote to Mrs Marmion stating that it was unfair that the disciplinary hearing proceeded in his absence on 16 June 2011 because he was unwell. He wrote that he had left a message in her office at 10.45 am that day stating this. He went on to say that he had no confidence in “your appeal procedure” and that he intended to pursue his grievances “through other channels”.
16. Mrs Marmion replied by letter dated 23 June 2011 informing him that she had spoken to the receptionist who advised that he had not stated that he could not attend because he was unwell and that the disciplinary meeting had proceeded in his absence as it was a rearranged meeting. She confirmed that the appeal process was still open to him and that if she had not heard from him by 29 June 2011 she would assume that he did not wish to appeal. The claimant wrote back to say that he did not accept her findings or the decision of the disciplinary meeting on 16 June 2011, that he had no confidence in the appeals process and that he intended to lodge a complaint with the industrial tribunal.
17. The claimant lodged his complaint of unfair dismissal with the tribunal office on 5 July 2011.
THE LAW
18. An employee has the right not to be unfairly dismissed by his employer. Article 126 of the Employment Rights (NI) Order 1996.
19. Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 provides:-
“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.
(2) A reason falls within this paragraph if it –
(b) relates to the conduct of the employee,……”
20. Article 130(4) provides:-
“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 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.”
21. Article 130A(2) inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:
“Subject to paragraph(1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) 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”.
The statutory dispute resolution procedures prescribed by the 2003 Order and set out in Schedule 1, part 1 of the 2003 Order apply in this case. Where an employer fails to comply with the 3 step statutory dismissal procedure, a dismissal is rendered automatically unfair.
22. The tribunal considered the following case law: Foley v Post Office; HSBC Bank Plc (formerly Midland Bank Plc) -v- Madden 2000 IRLR 827 CA; Iceland Frozen Foods -v- Jones 1983 ICR17; British Homes Stores -v- Burchell 1978 IRLR 379 EAT; W Weddel and Company Limited -v- Tepper 1980 IRLR96; Sainsbury’s Supermarkets v Hitt 2003 IRLR 23; Polkey -v- A E Dayton Services Limited 1987 IRLR 503; Ulsterbus Limited v Henderson 1989 IRLR 251 NICA; Trusthouse Forte (Catering) Limited v Adonis 1984 IRLR 382; LJ Sewell and J Francis v Ford Motor Co 1973 IRLR 25; W Devis & Sons Ltd v RA Atkins 1977 IRLR 314; CEX Limited v Mark Lewis 2007 UKEAT/0013/07; Software 2000 Ltd v Andrews 2007 IRLR 568 EAT.
In the Burchell case, the EAT set out the following principles:-
“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 entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. First of all, there must be established by the employer the fact of that belief. Secondly, that the employer had reasonable grounds for that belief. And thirdly that the employer had carried out as much investigation into the matter as was reasonable in the circumstances of the case”.
The leading case on the application of Article 130(4) of the 1996 Order is Iceland Frozen Foods v Jones 1982 IRLR 439 EAT in which Browne-Wilkinson J stated that “the correct approach for the industrial tribunal to adopt in answering the question posed by [article 130(4) of the Order] is as follows:-
i. the starting point should always be the words of [article 130 (4)] themselves of the employer’s conduct, not simply whether they consider the dismissal to be fair;
ii. in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they consider the dismissal to be fair;
iii. 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;
iv. in many, though not all cases where there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another employer might quite reasonably take another;
v. 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.”
23. In the case of Sainsbury’s Supermarkets Ltd v Hitt 2003 IRLR 23, the Court of Appeal stated that it was not for the tribunal to substitute its own view for that of the employer. The Court of Appeal stated as follows:-
“The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason”.
CONCLUSIONS
24. The tribunal was satisfied that the respondent had established that the reason for the dismissal of the claimant was his conduct and that this was potentially a fair reason. The tribunal further considered that the respondent’s belief that the claimant was guilty of misconduct was genuinely held in that he refused to carry out the Cork run and was abusive to Mr Durkan during the telephone conversation with him. There was no evidence before the tribunal relating to the claimant’s driving hours that week which would have supported his contention that the journey to Cork could not be carried out legally or that Mr Durkan had specified that the trip should be carried out in one day. The claimant admitted during the hearing that he was abusive towards Mr Durkan during the call and the tribunal accepts that the respondent acted within the range of reasonable responses in treating this behaviour as gross misconduct. The tribunal accepted Mr Durkan’s evidence that the claimant was not dismissed as part of a plan to recruit other drivers on different terms and conditions. The recruitment exercise was terminated when the contract tender was unsuccessful.
25. The tribunal considered whether the disciplinary procedure adopted by the respondent leading to the decision to dismiss the claimant was reasonable in all the circumstances. The claimant’s main complaints in this regard were that he was not permitted to be accompanied on the first occasion by Mr Coleman as per his contractual entitlement; and further that the respondent proceeded with the rearranged disciplinary meeting and went on to reach the decision to dismiss him in his absence.
26. The claimant had a contractual right to be accompanied to the disciplinary meeting by a “colleague or friend of your choice”. Therefore it is most regrettable that Mrs Rooney, who was relied upon by Mr Durkan to provide “expert human resources” advice did not take the precaution of checking the claimant’s contract in advance of the disciplinary meeting on 14 June 2011. It is surprising also to the tribunal that template letters were not amended to reflect the contractual position once it had been established. The tribunal considered this point very carefully because a breach of an employee’s right to be accompanied would be sufficient to render the disciplinary process unfair. The tribunal took into account that the disciplinary hearing did not in fact proceed and no decision was made on the 14 June 2011 but was rearranged for 16 June 2011. It is clear to the tribunal that when the relevant provision of the claimant’s contract was drawn to the attention of Mrs Rooney and Mr Durkan, it was accepted by the respondent that the claimant could be accompanied to the rearranged hearing by Mr Coleman. The tribunal is satisfied that this was communicated to the claimant on 14 June 2011 and that any confusion which may have been caused to the claimant by the letter dated 14 June 2011 was dispelled during the claimant’s telephone call to Mr Durkan at 4.40 pm that day. There was therefore no breach by the respondent of the claimant’s contractual right to be accompanied at the disciplinary hearing on 16 June 2011.
27. The tribunal did not accept that it was unreasonable or inappropriate for Mr Durkan to conduct the disciplinary process, given the structure of the respondent company. The tribunal also took into account that the claimant declined to participate in the appeal which would have been conducted by Mrs Marmion, who was not connected with the disciplinary process and decision to dismiss him.
28. The tribunal carefully considered the reasonableness of the actions of the respondent in proceeding with the disciplinary meeting on 16 June 2011 in the absence of the claimant. The claimant did not contend that his non attendance at the meeting on 16 June 2011 was connected in any way with the issue of who could or could not accompany him. The claimant stated that he could not attend because he was unwell. The tribunal preferred Ms Lewis’ evidence that the claimant simply said that he would not be attending. He accepted in his evidence to the tribunal that when he phoned PES on the morning of 16 June 2011 he did not state in terms to Ms Lewis that he was unwell. The tribunal noted that in his letter to Mrs Marmion the claimant incorrectly stated that he informed the receptionist that he was not attending because he was unwell. The claimant did not provide any medical evidence to the respondent the time to support his contention that he could not attend the hearing.
29. The tribunal gave consideration as to whether the respondent acted unreasonably in not attempting to contact the claimant to clarify why he was not attending. The tribunal was mindful that it could not substitute its own view of what was the right course for the employer to take. It concluded that the respondent did not act unreasonably in the particular circumstances of this case. Once it was established that the claimant could be accompanied by Mr Coleman, both the claimant and Mr Coleman enquired what would happen if he did not attend at the hearing. It was clearly explained by Mrs Rooney that the hearing could proceed in his absence and that a decision could be made on the available evidence. She explained that this was the claimant’s opportunity to put his case. The tribunal accepted that this gave rise to a reasonable belief on the part of Mrs Rooney and Mr Durkan, reinforced by the telephone message from the claimant, that he had simply decided not to participate in the disciplinary process. The tribunal was satisfied therefore that it was reasonable for the respondent to proceed in the claimant’s absence and that there were grounds for concluding that the claimant was guilty of gross misconduct warranting summary dismissal. The tribunal considers that the subsequent correspondence between the claimant and Mrs Marmion and his decision not to appeal against the decision to dismiss him further demonstrates that the claimant did not intend to participate in the process. This leads the tribunal to conclude that it probably would not have made a difference to the claimant’s decision to participate in the disciplinary process had the respondent telephoned the claimant to enquire why he was not attending that day.
30. The tribunal therefore concludes that the decision to dismiss the claimant was within the band of reasonable responses and his complaint of unfair dismissal is not well founded.
Chairman:
Date and place of hearing: 23 November and 2 December 2011, Belfast.
Date decision recorded in register and issued to parties: