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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Suares Amaro Da Costa v Eurostock Foods NI Ltd [2012] NIIT 02872_10IT (20 January 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/02872_10IT.html
Cite as: [2012] NIIT 02872_10IT, [2012] NIIT 2872_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2872/10
CLAIMANT: Manuela Rosa Suares Amaro Da Costa
RESPONDENT: Eurostock Foods NI Ltd
DECISION
It is the unanimous decision of the tribunal that the dismissal of the claimant was unfair both on statutory procedural grounds and general procedural grounds. However, the tribunal also considered that there was very little chance that the claimant would have been retained in employment even had the full statutory procedures been observed. Accordingly, the tribunal has assigned a deduction of 95% from the compensation to be paid to the claimant to reflect that there was a very small chance that she would have been retained in employment, with a further deduction of 95% in respect of her contributory fault. The tribunal noted that the claimant’s claim was not received pursuant to Article 145(2)a before the end of the period of three months beginning with the effective date of termination, but found that it was received within a further period that the tribunal considered reasonable being satisfied that it was not reasonably practicable for the complaint to be presented before the end of the period of three months. The respondent is ordered to pay the claimant £974.70 in compensation.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr W Irwin
Mr B Gourley
Appearances:
The claimant was represented by Miss Carolina Aguinaga.
The respondent was represented by Mr Michael Lavery, Barrister-at-Law, instructed by Diane Coulter, Solicitor.
SOURCES OF EVIDENCE
1. The claimant gave evidence on her own behalf.
2. The following gave evidence on behalf of the respondent:-
Mr Paul Anthony White
Mr David White
Mr Martin White
Mr Gary Thomas White
3. Additionally, there was a bundle of documents before the tribunal. In general, these were not challenged by or on behalf of the claimant but the tribunal did note that the claimant took issue with the notes made of the disciplinary and grievance stages of the procedure.
THE CLAIM AND THE DEFENCE
4. The claimant claimed that she was unfairly dismissed. The respondent claimed that she was fairly dismissed for theft of company property.
THE RELEVANT LAW
5. The relevant law considered by the tribunal is found in Article 130 A(2) and Article 130(4)(a).
6. In connection with the jurisdiction point the tribunal considered Article 145(2). All references are to The Employment Rights (Northern Ireland) Order 1996.
7. In relation to the issue of statutory procedural unfairness the tribunal considered Schedule One of The Employment (Northern Ireland) Order 2003.
CASE LAW
8. The tribunal considered:-
British Home Stores v Burchell [1980] ICR 303.
Iceland Frozen Foods v Jones [1983] ICR 17.
Polkey v A E Dayton Services Ltd [1987] IRLR 503.
THE FACTS
9. The claimant was employed by the respondent as a Process Operator and at the time of her dismissal she was working on the nightshift. The claimant commenced employment with the respondent in or around 15 April 2009 and her employment ended on 8 June 2010.
10. The claimant is of Portuguese nationality and can speak virtually no English.
11. At the time of dismissal, the claimant was 47 years of age and had one complete year of service with the respondent which took place when she was in the age band of over 41 years (making the multiplier 1.5).
12. During a routine check of CCTV footage relating to the evenings of 4 and 5 June 2010, the claimant and three others were seen by Mr Paul White (the acting personnel manager) involved in a joint operation to remove meat from the respondent’s premises. This footage showed the claimant moving the basket into which waste product was emptied on the processing line to a different stage of the processing line and eventually putting its contents into a different colour of liner and handing it to her Supervisor, Mr Valdir Ramos (also of Portuguese nationality) who took it out to her car. On the next night, Mr White again witnessed company products being removed from the company’s premises, but the claimant was not an active participant on this footage.
13. A disciplinary hearing was convened on 8 June 2010 attended by the claimant, Mr Valdir Ramos, the claimant’s daughter, Vanessa Costa, and Mr Ramos’ daughter, Bruna Ramos. Mr David White, Mr Paul White and Mr Declan Hearty were present on behalf of the company and Mr Martin White took minutes. The respondent alleged that the claimant had been asked whether she wanted the disciplinary hearing to take place there and then or whether she wanted to come back on another day. It was also alleged that she was asked whether she wanted an interpreter, and it was agreed that her daughter, Vanessa Costa (a co-accused), would translate for her. The net result of this meeting was that none of the four accused denied involvement in removing products. The claimant contended that she had taken waste product for her dog with the permission of her Supervisor, Mr Ramos. The four accused were informed they would be dismissed for gross misconduct. The claimant denied that the minutes of the meeting are correct and also denied that she was invited to attend another day or that she was offered the services of a translator from the factory by the respondent. Given that there seemed to be a singular lack of provision of company literature and notices in the claimant’s language, the tribunal considered that it is more likely than not that the claimant was not offered the services of a translator by the respondent.
14. The Appeal Hearing took place on 10 June 2010 allegedly at the request of the claimant who waived the requirement to appeal in writing as she allegedly wanted the appeal heard as quickly as possible. The appeal was conducted by Mr Gary White, the group Managing Director, and minutes were taken by Mr Martin White, the Operations Manager. The claimant once again denied having taken products from the factory saying that she had taken waste products for her dog with the permission of Mr Ramos. The claimant alleges this was a regular occurrence in the factory but refused to give any further details. The tribunal considers that as the claimant knew her job was at risk it is more likely than not that she did not have further details to give the respondent, rather than simply refusing to do so. The tribunal has noted that the claimant was not allowed to see the footage at this stage upon which the respondent relied.
15. On 16 June 2010, the claimant’s nephew, Ricardo, contacted the respondent on her behalf regarding the outcome of the appeal and was told that it had been dismissed. The claimant, with the assistance of the local Citizens Advice Bureau, wrote an appeal letter, dated 21 June 2010. In this letter, she eventually placed all the responsibility for what had happened on her Supervisor, Mr Ramos, but she then at hearing, reiterated her original position that she had been given his permission to take meat from the respondent. The respondent wrote to her on 23 June 2010 upholding the original decision.
16. The claimant’s claim to the tribunal was lodged on 10 December 2010, which was outside the time limit of three months set out in the 1996 Order.
17. The statutory dismissal procedure was not complied with and the tribunal attributes the failure to do this to the respondent. As the respondent contended that it was also a disciplinary offence to remove waste product from its factory, the tribunal has not considered it necessary to make detailed findings on whether the amounts of meat removed by the claimant and her fellow workers constituted only good meat, good meat and waste or waste alone. The respondent has a procedure for selling its waste product.
CONCLUSIONS
The Jurisdiction Issue
18. By Article 145(2)(a) and (b).
“... an Industrial Tribunal shall not consider a complaint under this Article unless it is presented to the tribunal:-
(a) before the end of the period of three months beginning with the effective date of termination; or
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
The tribunal noted that this issue was not raised in the hearing by either side and only addressed when the tribunal asked the parties to deal with it. The alleged reason for the claimant failing to present her claim within the time period of three months from dismissal was that the claimant had posted her claim to the tribunal at a time which would have allowed it to have been received within a three month period, and the Post Office subsequently returned it to her undelivered. Once the claimant was aware that this had happened, she submitted a new claim. Ms Aguinaga alleged that they had been told to fill out a new claim form and to send it with the original envelope. Whether or not this actually took place was unclear. Certainly, the original envelope did not appear to have been kept on the tribunal file relating to this matter. However, the tribunal has also taken account of the fact that the claimant was unwell in the period after her dismissal and suffered from depression. There was no evidence before the tribunal as to the length and depth of that depression, but it was clear to the tribunal in the hearing that the claimant was still in a highly emotional state and that she could speak very little English. Adding these factors to the alleged excuse, the tribunal considers that it would not have been reasonably practicable for the claimant to have lodged her claim with the tribunal within the period of three months from the date of dismissal. Having so found, the tribunal accepts that the claimant did take steps to submit the claim within a further period that the tribunal considered reasonable. It was lodged on 10 December 2010.
STATUTORY PROCEDURAL UNFAIRNESS
19. Under Schedule One of The Employment (Northern Ireland) Order 2003 the standard procedure is set out as follows:-
1- (1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend the meeting to discuss the matter.
Step 2 Meeting
2- (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless:-
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it; and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step Three - Appeal
3- (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 further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before dismissal or disciplinary action takes affect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.
20. There was a singular lack of compliance with this statutory procedure. There was no statement in writing of the alleged conduct of the employee or the circumstances leading to the respondent contemplating dismissal or disciplinary action. The tribunal has noted that the respondent relied heavily on the CCTV footage as its basis for contemplation of dismissal or taking disciplinary action. Yet the claimant was not shown the footage until a considerable time after the dismissal had elapsed with the assistance of her legal advisor. Indeed, the claimant had to fight hard to see this footage. There was no statement of the grounds for action. The tribunal has noted that a written summary of what the CCTV footage showed was in the bundle before it.
21. The statutory procedure requires the employer to invite the employee to a meeting to discuss the matter. This is not to take place until the employee has been told what the basis is for the contemplation of dismissal and the employee has had a reasonable opportunity to consider his response. Plainly this did not happen. On 8 June 2010, the claimant, her daughter, Mr Ramos (her Supervisor) and his daughter were without any notice escorted into the presence of Mr David White, Mr Paul White and Mr Declan Hearty, with Mr Martin White taking notes. None of them were previously informed why this was the case. The tribunal has noted that the four accused were treated together rather than having individual hearings. The tribunal questions what level of discussion was capable of taking place as the person conducting the hearing, Mr Martin White, would make points and then these were then discussed in Portuguese between the four accused. The tribunal does not consider that this was affording the claimant a reasonable opportunity to consider her response to the information against her.
ARTICLE 130A(2)
22. It was not disputed that the statutory procedure applied to the claimant’s situation. Under Article 130A(2):-
“... 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 purposes 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.”
23. There was certainly evidence from the company witnesses that nothing would have changed their view of the culpability of the claimant given the contents of the CCTV footage. However, the tribunal considers that there were issues that were not investigated and that the dismissal was also procedurally unfair on general grounds.
BRITISH HOME STORES V BURCHELL [1980] ICR AT 303
24. “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 more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would itself have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before, for instance to see whether it was the sort of material, objectively considered, which could 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 circumstances be a reasonable conclusion.”
25. The tribunal questions whether the employer had carried out as much investigation as was reasonable in all the circumstances of the case. The CCTV footage would certainly give a clear idea of what was happening. However, the tribunal does not think that this obviates the necessity for the respondent to carry out investigatory meetings with each of the accused. This might have given a clearer idea of, for example, the level of responsibility of the various employees. This simply did not take place. While there were attempts on behalf of the claimant to attack the quality of the CCTV footage and whether or not it was reasonable to believe in the guilt on the basis of the footage, we do not consider that it is the function of the tribunal to examine the quality of this material. Indeed, we refused to view the CCTV footage, though urged to do so by the representatives for the respondent and the claimant. However, there was no investigatory meeting with each of the individuals allegedly involved and in circumstances such as a disciplinary meeting, we consider that it is not reasonable for the respondent to rely on the translation by one co-accused for another co-accused especially where they had a family relationship. The claimant attacked the level of knowledge that she gained from the translation. It would have been reasonable for the respondent to have provided a translator who was totally independent from the circumstances of the case. Whilst the tribunal considers that if a proper investigatory meeting had happened it is possible that some information would have come out which would have reflected potentially on the guilt of the claimant, the tribunal only seeks to assign a percentage likelihood that is very slight to this possibility, given the evidence of the respondent management that the CCTV footage was so clear that they did not have to carry out any further investigation. The tribunal also considers that if the claimant had been given an opportunity to view the footage, it is possible that she would have been in a better situation to consider her response to that information. As it was, she was simply defending herself blindly.
26. The tribunal is supported in finding that there would have been a very slight chance that the claimant would not have been dismissed by the clear evidence of the respondent witnesses which was to the effect that the claimant was seen opening new packs of meat and emptying them into the bin. It certainly was the evidence of Mr Gary White that not only was this good product, but it was a substantial amount of good product. The tribunal cannot look past this evidence. Accordingly, the tribunal assigns a percentage likelihood that the claimant would not have been dismissed even had proper statutory dismissal procedures and general procedural requirements being followed, of 5%. Her compensation will therefore be reduced by 95%.
The tribunal also considers on the basis of the evidence of the respondent that the claimant did engage in conduct that was culpable and blameworthy by being involved in the removal of this product and as such that she contributed to her dismissal. The tribunal has noted that this conduct only happened once the claimant went on to the nightshift and that she waited until management had left the factory (which was at a reasonably lengthy period into her shift) before asking whether she could remove the alleged waste product allegedly for her dog. If the claimant really believed that she was able to do this with consent, we consider it more likely than not that she would have asked the appropriate level of management rather than simply asking her Supervisor after more senior managers had left the factory for the night. It could be argued that the claimant approached him because he spoke her language. If that is the case, the tribunal considers that it is more likely than not that Mr Ramos could have been asked by her to accompany the claimant to seek the appropriate consent of the appropriate level of management.
We consider the claimant contributed heavily to her dismissal to the extent of being 95% responsible for her dismissal.
CALCULATION OF COMPENSATION
Assessment of Compensation
Basic Award
27. In this case, if the tribunal had found that the dismissal was substantively unfair, the claimant would have been entitled to her gross weekly wage x a multiplier of 1.5 x a multiplier of 1) to reflect her one completed year of service (this would have entitled the claimant to a basic award of £348.00). However, as we have found that there is a breach of the statutory dismissal procedure this means that the basic award is increased to four weeks pay. This means that the basic award will be £928.00. The tribunal does not consider that such an increase would result in injustice to the employer considering that the employer is fundamentally responsible for the almost total lack of consideration of the procedural requirements of fairness, both statutory and general.
COMPENSATORY AWARD
Immediate Loss
28. The immediate loss period runs from 9 June 2010 to 25 October 2011 which is a period of 72 weeks. The claimant earned net £200.00 per week with the respondent. The claimant has not been able to obtain any employment at all as she speaks so little English. Accordingly, the immediate loss element is calculated as follows:-
72 x £200.00: £14,400.00
The tribunal considers that it is just and equitable to increase this award by 10% pursuant to Article 17 of The Employment (Northern Ireland) Order 2003. Whilst the respondent was responsible for the non-completion of the statutory procedure to the extent that the only written communication with the claimant took place a number of days after the appeal had been decided, and then only when prompted by the claimant’s nephew’s telephone call, the tribunal accepts that this is to be balanced against the fact that in substantive terms the claimant was involved in culpable and blameworthy conduct which contributed to her loss of employment. Accordingly:-
£14,400.00 x 10%: £15,840.00
Loss of Statutory Rights
29. The claimant had one completed year of service with the respondent and the tribunal considers that it is appropriate to award the figure of £200.00 to reflect that the claimant will have to spend 52 weeks of employment in the future to accrue the right not to be unfairly dismissed. The tribunal declares that the immediate loss period runs from 9 June 2010 to 25 October 2011. (A total period of 72 weeks during which the claimant was in receipt of Jobseeker's Allowance and was not able to find any alternative work. The attention of the parties is directed to the Recoupment Notice which is attached to this decision.
Future Loss
30. The tribunal awards future loss in the sum of 12 weeks:-
12 weeks x £200.00: £2,400.00
Uplift by 10%: £240.00
Total Future Loss: £2,640.00
31. The tribunal has noted the economic situation as it currently stands and has noted that the claimant, because she speaks very little English, has a particular difficulty in obtaining employment. However, the tribunal does not consider that these factors are sufficient to require an employer to be punished by awarding an extended period of future loss, especially when it has found that the dismissal was not unfair on substantive grounds (ie, it arose because of the misconduct of the claimant).
Summary of Compensation
Basic Award: £928.00
Immediate Loss: £15,840.00
Loss of Statutory Rights: £200.00
Future Loss: £2,640.00
Total (-95% Contributory Fault): £19,608.00
Compensatory Award: £18,680.00
-95% “Polkey” deduction: (£17,746.00)
= £934.00
-95% Contributory Fault: (£887.30)
Balance:
Compensatory Award: £46.70
Total Unfair Dismissal Compensation
= £928.00 + £46.70 = £974.70
COSTS
32. Miss Aguinaga submitted that the claimant had not acted vexatiously, abusively, disruptively and unreasonably in bringing the claim and Mr Lavery contended that her behaviour could be so categorised, when she was caught red-handed on the CCTV, taking product. The tribunal is conscious that it is not permitted to view the CCTV footage, only to consider whether or not the employer has complied with the Burchell guidance. However, in Rule 40 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, the tribunal is required to form its own view on the behaviour of (in this case) the claimant. The tribunal does not accept that it should view the footage for one purpose and not for another.
However, the tribunal is
also conscious of the fact that this claimant was a person who could speak very
little English and as such could not really understand the function and powers
of the tribunal. The tribunal did explain that it was not there to determine
her guilt and that it could not award her damages for injury to feelings or
“clear her name”. These are views and perceptions that any
self-representing person might have and the tribunal does not consider that it
would be appropriate to award costs against the claimant, who while not being
self-representing, was not legally represented and had very little knowledge of
English. As such, the tribunal considers that to do so would be effectively to
award costs against the claimant simply because she was of Portuguese
nationality and practically unable to speak English. The tribunal has noted
that it was required to place a heavy reliance upon the interpreter in this
case to ensure that the claimant had some understanding of the proceedings as
they unfolded.
33. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 27 May 2011; 23 and 29 June 2011;
11 and 31 August 2011, Belfast.
Date decision recorded in register and issued to parties: