Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/1044_11IT.html
Cite as: [2012] NIIT 01044_11IT, [2012] NIIT 1044_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1044/11

CLAIMANT: Paul Thompson

RESPONDENT: JMT Direct Ltd

DECISION

The decision of the Tribunal is that the claimant was not unfairly dismissed and his claim fails.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mr E Grant

Mr J Patterson

Appearances:

The claimant appeared and was represented by his father, Mr Thompson.

The respondent appeared and was represented by Mr Hamill of Counsel, instructed by Worthingtons Solicitors.

THE CLAIM AND THE RESPONSE

1. The claimant lodged a claim form on 27 April 2011 claiming that his dismissal from the respondent company for gross misconduct was unfair.

2. The respondent presented a response on 9 June 2011 accepting that they had dismissed the claimant for gross misconduct but refuting that his dismissal had been unfair.

SOURCES OF EVIDENCE

Witnesses

3. The Tribunal heard from the claimant. For the respondent, the Tribunal heard from Mrs Diane Moorehead, Human Resource Manager, and Mr Joseph Thompson, owner/shareholder/Managing Director.

DOCUMENTS

4. The Tribunal was presented with a lever arch folder containing the hearing bundle running to over 400 pages. The Tribunal found the following facts as agreed or proven on the balance of probabilities.

5. The claimant, Mr Paul Robert Thompson, was born on 10 May 1982. He commenced employment with JMT Direct Ltd, the respondent, on 18 November 2009. He was employed by them as a Call Centre Agent.

6. The respondent is a firm based in Derry which acts as a fundraising Agent for a number of client charities particularly within the hospital and other health service outlets in the Republic of Ireland. The respondent employs approximately 36 staff members in Northern Ireland.

7. The claimant’s job as a Call Centre Agent with the respondent involved him making telephone calls to perspective donors and seeking their participation in a range of fundraising activities for client charities. The telephone system in the Call Centre generates the outward calls and it was the claimant’s responsibility to record how these calls were answered, for example, by a personal reply from “a live human” who responded to the claimant’s opening script or by “answering machine” or by “no response”. It was the claimant’s responsibility to ensure that each circumstance of each reply was to be properly recorded. The claimant was fully trained in this aspect of his work which was referred to as either “dispositioning” or “statusing” the calls.

8. The claimant’s team leader was Oonagh Coyle. It was her responsibility to monitor all calls made and recorded within her team for quality of service. She did this by a process known as “live eavesdropping”. Staff members, including the claimant, were aware of this aspect of Ms Coyle’s role.

9. On 20 October 2010, Ms Coyle invited the claimant to come to her desk and listen in to some of his calls that she had monitored. These were a number of calls which had taken place between 11.00 am that morning and 13.12 pm that afternoon, which appeared to Ms Coyle to indicate that the claimant had hung up on live calls and in one such instance had recorded the circumstance as “answering machine” instead of “live contact”.

10. It was the respondents’ contention that at this meeting with Ms Coyle the claimant had accepted that the calls were his and admitted that there were a number of problems with the calls. Ms Coyle played the incorrectly statused calls to the claimant and asked the claimant for his reasons, for example, for having recorded live contacts as answering machine. Ms Coyle noted the claimant’s response that he was “not focused”.

11. The Tribunal noted that the claimant did not at any stage deny either that the problematic calls were his or that he had incorrectly recorded the status of the calls. The claimant reiterated his initial position throughout the subsequent disciplinary procedure and claimed at that stage he had not been cautioned or given any warning that this issue could be construed as falsifying records or that this might constitute misconduct.

12. Accordingly the Tribunal found that the claimant had made these calls and had incorrectly recorded the status of the calls on the system.

13. On the same date, Ms Coyle wrote to her Line Manager, Mrs Nuala Hamilton, she advised Mrs Hamilton that she had discovered a major issue with the claimant’s statusing of calls and stated that the claimant was picking the calls he wanted to do, cutting live calls off and flagging them as answering machine calls.

14. Ms Coyle attached to this note to Mrs Hamilton a list of calls which indicated a number of calls between 11.00 am and 13.00 pm where the claimant had hung up on live contacts and in one such instance had recorded the circumstance as answering machine instead of live contact.

15. On Friday, 22 October, the claimant was invited to a meeting with the respondents’ Human Resource Manager, Mrs Diane Moorehead. The respondent claimed that the purpose of the meeting was to investigate how the claimant had recorded his telephone calls. The claimant confirmed that at this meeting, Mrs Moorehead informed him that there were concerns that he had been incorrectly statusing calls and according to the claimant had been advised that “this was not a good situation to be in”.

16. Mrs Moorehead stated that she had prepared a note of this meeting either on the same day as the meeting or at least by the following Monday (25 October 2010). Mrs Moorehead’s note recorded the fact that she had been advised by Mrs Hamilton that Mrs Hamilton had been approached by Ms Coyle to the effect that the claimant’s call contact levels were very low, that she (Mrs Hamilton) had decided to monitor this from Thursday, 14 October, and that in doing so had noted issues with these calls.

17. Mrs Moorehead’s note went on to record the fact that Ms Coyle had approached the claimant and had invited him to explain his responses to the calls she discovered to have been wrongly statused and that the claimant’s reply had been “I don’t know, not focused”.

18. Mrs Moorehead’s note also recorded the fact that Mrs Hamilton had herself listened into five of the claimant’s so-called answering machine calls at random on Monday, 18 October, and she had noted that four of these answering machine calls had actually been live human answers and that the claimant had hung up and statused the calls as answering machine.

19. Mrs Moorehead’s note recorded that she had advised Mrs Hamilton that this “was falsifying records and was considered an act of gross misconduct”. Mrs Moorehead further recorded that she advised Mrs Hamilton that she, Mrs Moorehead, had now had to investigate the matter.

20. Mrs Moorehead asked Mrs Hamilton to check the claimant’s calls further and asked her to listen to 10 random answering machine calls for every day of the previous week and of that week with the exception of Wednesday (as already covered by Oonagh Coyle). Mrs Moorehead requested Mrs Hamilton not to speak to the claimant on this matter as she would speak to him as soon as she had collected all the facts of the matter.

21. At this hearing, the claimant stated that this note and in particular the words “that this was falsifying records and was considered an act of gross misconduct” indicated clear that Mrs Moorehead had already reached a conclusion at this stage, that the claimant had falsified his call records and that he was guilty of gross misconduct.

22. At this hearing, Mrs Moorehead stated that perhaps she ought to have used the term “allegedly” when she referred to the words “falsifying records” and “act of gross misconduct”. However, she stated that she was merely describing what she believed had taken place and how it might be categorised. She stated that she had certainly not reached any conclusions as to the claimant’s culpability and stressed that the evidence for this was her next decision, which was to conduct a further investigation into the full facts of the matter.

23. The Tribunal noted that Mrs Moorehead had advised Mrs Hamilton to conduct further checks and noted her decision to investigate the matter and collect all the facts.

24. The Tribunal accepted Mrs Moorehead’s account of her use of this phrase and concluded that at this stage Mrs Moorehead had not reached any conclusions about whether the claimant had falsified his call records or whether he had been guilty of an act of gross misconduct.

25. Mrs Moorehead met Ms Coyle the same day. Ms Coyle advised Mrs Moorehead that her attention had been drawn to the claimant’s calls as they had been consistently at the bottom of the board, had had no contact rate and had about a 30% conversion rate.

The Investigation Meeting

26. Mrs Moorehead invited the claimant to an investigation meeting that same day and told him that she was investigating concerns she had about his incorrectly statusing calls, that she wanted to establish the facts first and would take his comments about the matters thereafter.

27. Mrs Moorehead described to the claimant what Ms Coyle and Mrs Hamilton had advised her in relation to his calls and advised the claimant that this was considered to be gross misconduct, an action that could warrant dismissal. Mrs Moorehead advised the claimant that she had asked Mrs Hamilton to monitor more of the claimant’s calls and Mrs Moorehead showed the claimant Mrs Hamilton’s report summarising the results of these checks.

28. Mrs Moorehead asked the claimant why he had hung up on a number of live human responses and subsequently flagged the calls incorrectly. At this point the claimant put his head in his hands and asked if he could bring Donna, his colleague and girlfriend, into the meeting because she could explain it better to Mrs Moorehead than he could.

29. Mrs Moorehead advised the claimant that this was only an investigatory meeting and this was not a disciplinary meeting and continued.

30. The claimant went on to explain to Mrs Moorehead that he had problems with depression and that it had begun affecting how he worked. He stated that he found some of the contacts he was dealing with (“St Pat’s”) personal to him and that he was aware of the fact that he had not been doing it well.

31. The claimant added that he had had a problem with mental health in the past and went on to add that he had not been aware of the extent to which it had been affecting his work until Ms Coyle had pointed out to him what he had been doing.

32. The claimant confirmed that he was not on medication and that he had neither treatment nor medication for over a year.

33. Mrs Moorehead indicated that while some live human calls had been hung up and flagged as answering machine there were also others that should have been flagged as not available but that these too had been flagged as answering machine. The claimant stated that these calls were due to a lack of attention on his part.

34. Mrs Moorehead pointed out that in some of the calls the claimant had hung up before anyone had spoken and therefore he could not have been upset by them as there had been no conversation to which the claimant replied “I couldn’t hang up on everyone”.

35. Mrs Moorehead put it to the claimant that in changing the status of his calls to answering machine the claimant was improving his conversion rate and she asked him if this had been his intention but the claimant denied this.

36. At the end of this meeting, Mrs Moorehead advised the claimant that his actions amounted to gross misconduct, falsifying records, which was conduct that the company could not condone. She advised him that there were consequences to his actions and that these could lead to complaints from their clients and damage to the company.

37. Mrs Moorhead advised the claimant that “this was not a good situation to be in” and advised him that, from what he had told her and the evidence she had gathered and had shown to the claimant, she believed that he had been falsifying records. Mrs Moorehead went on to advise the claimant that she needed to take some time to consider what action was now appropriate and asked the claimant to wait in reception.

38. Approximately 25 minutes later Mrs Moorehead reconvened the meeting and the claimant joined her in the boardroom. Mrs Moorhead advised the claimant that his conduct amounted to gross misconduct, that it was a very serious matter and that she had no alternative but to invite him to a disciplinary meeting where this could be discussed further.

39. Mrs Moorehead handed the claimant a letter inviting him to a disciplinary meeting at which disciplinary action against him including dismissal would be considered. Mrs Moorehead advised the claimant that he would be suspended with immediate effect and that he should report to work on Monday, 25 October for the disciplinary meeting.

40. At this point, the claimant broke down and cried. The claimant then collected his personal belongings and went home.

41. On the same day, 22 October 2010, the respondent wrote to the claimant and advised him that he had been suspended on full pay and invited him to a disciplinary meeting on 25 October 2010.

The Disciplinary Meeting

42. The disciplinary panel consisted of Mrs Moorehead and Mr Chris Kershaw. At the outset of the disciplinary meeting the claimant asked if he could make a submission to the panel. The claimant handed over copies of a letter addressed to Mrs Moorehead. This letter had been written by the claimant’s father and was comprised of five A4 sized pages of close handwriting.

43. Mrs Moorehead and Mr Kershaw took some time to read the submission at the end of which they advised the claimant that they were not in a position to continue with the meeting until they responded to this submission. Mrs Moorehead advised the claimant that they would provide a response to his submission that same day and that their response would be hand-delivered to his home thereafter.

44. The claimant’s letter raised two issues for the respondent. He complained about their taking a disciplinary against him and he lodged a grievance in relation to discrimination, bullying and harassment.

45. On receipt of this submission Mrs Moorehead wrote to the claimant and advised him that the disciplinary issue would be postponed until the grievance issue had been dealt with. Her letter stressed that the claimant was not dismissed and that his suspension with pay would continue.

The Grievance

46. In this letter, Mrs Moorehead asked the claimant to clarify several aspects of his grievance and advised him that she had scheduled a formal grievance meeting for Wednesday, 27 October, when the matter would be discussed further. Mrs Moorehead confirmed Ms Mullan could represent the claimant at that meeting.

47. On 27 October 2010, in the morning, the claimant hand-delivered a letter to Mrs Moorehead comprising his submission in relation to his grievance and in response to the questions he had asked. This submission was set out in 11 A4 sized pages of close handwriting and comprised some detail of the allegations the claimant was making.

48. The grievance outcome conclusion dismissed the claimant’s grievances. The grievance investigation and the grievance outcome were not matters that were of concern to this hearing except in relation to one matter only. This arose out of a remark made by Mrs Moorehead in the grievance outcome conclusion where it was stated “Paul was found to have committed an act of gross misconduct. When he was invited to attend the disciplinary meeting to discuss this further these grievances were raised we believe in order to detract from the disciplinary situation that he now found himself in and where he felt the outcome could be dismissal”.

49. It was the claimant’s contention that this remark indicated that the respondent had made a decision at this stage in relation to the alleged acts of gross misconduct, in the absence of the disciplinary hearing.

50. The Tribunal found that, after her investigations into the complaints about the claimant’s conduct and during the investigatory meeting, Mrs Moorehead had reached the conclusion that the complainant had falsified his call records and had thereby committed an act of gross misconduct.

51. The Tribunal concluded that as Mrs Moorehead had reached this conclusion on the basis of her conversations with Ms Coyle and Mrs Hamilton and the investigations carried out into the matter, including her meeting with the claimant himself, that her belief at this stage that the claimant had been guilty of falsifying his call records was reasonable.

52. However, the Tribunal did not accept that Mrs Moorehead had reached any decision in relation to any disciplinary action that would be taken against the claimant.

53. The claimant subsequently appealed the outcome of his grievance and in accepting his letter of appeal, the respondent confirmed that the disciplinary meeting in regard to the gross misconduct issue had not yet taken place and had been put on hold in order the resolve the grievance.

54. In this letter, Mr Joseph Thompson, the respondents’ Managing Director, pointed out that the gross misconduct issue had been discussed with the claimant at an investigation meeting where it had become apparent that the claimant had committed an act of gross misconduct, ie, falsifying records and that this matter would have to be discussed further at a disciplinary meeting. Mr Thompson went on to advise the claimant that the disciplinary hearing would resume on completion of the grievance issue.

Grievance not upheld

55. At a meeting on 11 November 2010 attended by the claimant, his representative, Mr Thompson and Ms Moorehead, Mr Thompson gave the claimant a letter confirming that his grievance appeal had not been upheld.

56. At this point Mr Thompson advised the claimant that the grievance procedure had now been concluded. He stated that as the disciplinary matter was still outstanding in which he was not involved he would withdraw from the boardroom and after some time Mrs Moorehead and Mr Kershaw would return to speak to him.

Disciplinary Process continues and the sick absence issue

57. After a short time the disciplinary panel joined the claimant in the boardroom and advised the claimant that the disciplinary hearing would proceed. At this point the claimant submitted a Self Certificate sick note stating depression and the meeting ended.

58. The claimant went on a period of sick leave which, in line with the GP sick notes sent by the claimant, was due to lapse on 23 December 2010. On 9 December 2010 and again on 5 January 2011, the respondent wrote to the claimant asking him to sign a consent form so that they could contact his GP for a medical report of his current state of health.

59. In their letter of 5 January, the respondent reminded the claimant that his last statement of fitness for work covered his absence only up to 22 December. They noted that they had received no further such statements from him or his GP covering the subsequent period and advised the claimant that they had paid him seven days holiday to cover the rest of that four weekly pay period ending 31 December 2010.

60. The respondent further advised the claimant that he would receive one day’s holiday pay in the next pay period to cover the New Year customary holiday period and asked the claimant to forward medical cover for his uncovered absence or to contact them if he was ready to return to work.

61. On receiving no reply the respondent wrote again to the claimant on 7 January, enclosing their letter of 5 January. Both letters were hand-delivered to the claimant.

62. In the absence of any reply the respondent wrote again to the claimant on 14 January and advised him that if he had not contacted the respondent by Friday, 21 January, the respondent would consider further action in relation to the ongoing unauthorised absence. This letter was delivered by hand at 9.26 am.

63. The claimant telephoned the respondent at 3.30 pm that afternoon. He advised the respondent that the letters that had been hand-delivered to him that day but that he had received no other letters. The claimant stated that he had not signed for any recorded delivery and if any had been signed for it had not been by himself. The claimant stated that he was living at the same address but there were times when he was not there.

64. In any event, the claimant advised the respondent that he had been fit to be back to work on 23 December at the expiry of his statement of fitness to work but that he had assumed he was back on suspension and waited to hear from them about the disciplinary meeting. In light of this, the respondent advised the claimant to report to work on Monday, 17 January.

The claimant’s return to work

65. The claimant reported to work on Monday, 17 January and was advised that the respondent wished to continue with the outstanding disciplinary matter. The respondent gave the claimant a letter which invited him to a disciplinary meeting on 19 January and confirmed that Ms Mullan would be made available to attend the meeting to represent him. The claimant was advised that he continued to be suspended from work on full pay until the date of the meeting.

66. The claimant was also advised not to forward written submissions just prior to the meeting as he would be given an opportunity to put forward his points of his case at the meeting.

67. A letter from the respondent dated the 17 January 2011 to the claimant confirmed the invitation to the disciplinary meeting and enclosed the following information:-

- Notes of meeting held between Mrs Moorehead and Ms Coyle.

- Notes of meeting held between Mrs Moorehead and Mrs Hamilton.

- Answering machine call report.

- Photocopy of summary answer machine calls as discussed on 22 October 2010.

- Notes of investigation meeting.

- Notes of telephone conversation between Mrs Moorehead and Mrs Hamilton.

- Copy disciplinary rules and procedures for misconduct.

The Disciplinary Hearing, resumed

68. On the morning of the disciplinary hearing on 19 January 2011, the claimant presented himself at reception and presented a letter. He confirmed that it was in regard to the disciplinary meeting but when advised by Mrs Moorehead that she would deal with the letter at the hearing, the claimant became flustered and asked her to read it prior to the meeting.

69. The claimant stated that the letter related to him requesting information under the Data Protection Act and in relation to the respondent not complying within 40 days. However, Ms Moorehead stated that they would discuss the contents of the letter at the meeting in the afternoon.

70. The letter in question was comprised of five close handwritten submissions. Some of these referred to the respondents’ failure to provide information on the Data Protection Act 1998 in relation to requests for information made by the claimant in his submission to the original disciplinary hearing on 25 October 2010.

71. The letter also made reference to an enclosure entitled “notes of investigation meeting held with myself (Mrs Moorehead) with claimant on 22 October 2010” but the claimant drew the respondents’ attention to the fact that these notes had not in fact been enclosed.

72. The claimant’s letter also noted that “the sheet” where Oonagh (Coyle) had detailed “calls she had listened to” had also not been previously provided to the claimant or enclosed with the other documentation.

73. The disciplinary meeting was adjourned and by letter dated 19 January 2011 the respondent rescheduled the disciplinary meeting and attached the outstanding notes of the meeting and the “call sheet”. However, in this letter, the respondent made it clear that the same information as contained in the sheet had been provided to the claimant in the answer machine call report albeit in a different format.

74. This letter invited the claimant to come to a disciplinary meeting on Friday, 21 January.

The Disciplinary Hearing, resumed, 21 January 2011

75. On the morning of this meeting which had been scheduled for 2.00 pm the claimant delivered a letter. It comprised seven A4 sized pages written in the same close handwriting as before and had been prepared by the claimant’s father. The claimant confirmed that this letter related to the disciplinary hearing that afternoon and that it was a request for additional information.

76. The claimant was advised that he would be given the additional information prior to the hearing and that the other points in his letter would be dealt with at the disciplinary hearing.

77. On arrival to the disciplinary hearing the respondent gave the claimant and his representative sight of “Oonagh’s note” and an opportunity to listen to the recorded calls, which they did. At the meeting the respondents’ recapped the situation and confirmed that it was their belief, based on all their investigations, that he appeared to have falsified call records and that this was an act of gross misconduct. The respondent gave the claimant an opportunity to respond.

78. The call records were played at the hearing and the claimant accepted that the calls were his. Mrs Moorehead reminded the claimant that when he had previously stated that “he couldn’t hang up on every call” she had interpreted this to indicate the claimant’s acceptance that his false recording of his calls was a deliberate act. The claimant did not disagree with this, either at that disciplinary hearing or at this hearing.

79. The claimant made a number of points in his defence. He had told Mrs Hamilton at an early investigation meeting that he had been having problems which affected his work. When Mrs Moorehead stated that the respondent had considered these and had concluded that these had been personal problems and not mental health problems, the claimant disagreed.

80. The claimant also highlighted a statement he had made during his grievance procedure to the effect that he believed himself to have been singled out for disciplinary action against the background of other employees who were committing similar or related offences.

81. The respondent told the claimant that they had investigated his statement to this effect and had found some of his evidence baseless. They also stated that where they had discovered an episode of bad practice by some employees they had reprimanded them but that their behaviour had been “silly and stupid” but otherwise not considered on a par with falsifying call records.

82. The claimant also criticised the manner in which Mrs Moorehead had put to Ms Coyle the question “Is what Nuala said correct”, rather than asking Ms Coyle for her own view.

83. The claimant also stated that it had been Ms Coyle who had said that the calls were as a result of his lack of attention, that this is not what had happened and that he had felt like he was being pushed for an answer. When Mrs Moorehead pointed out to the claimant that he had made the same comment to her (“not focussed”) the claimant asked her not to interrupt him.

84. The claimant continued to contend that he had not told Ms Coyle that he had not been focussed but that he had not been aware of what was happening and that he had not done anything deliberately. However the claimant also stated that Ms Coyle had kept pushing for an answer and he conceded that he might have said that he was not 100% focussed.

85. The claimant also made the point that at his investigation meeting with Mrs Moorehead he had been agitated and in an emotional state and that he ought to have been given time to calm down and review the situation calmly.

86. The respondent asked the claimant how he viewed his calls now, at the disciplinary hearing, and the claimant stated that he had not hung up but that the calls had been disconnected. Further, when asked how he had statused some calls as answer machine when voices could be heard at the other end the claimant stated that he had thought they were answer machine calls as he had not properly heard them through his headset at the time.

87. The claimant also stated that the he believed that notes of the investigation meetings appeared to show that he had admitted to the charges and that he had been coerced by Mrs Moorehead and Ms Coyle to give reasons.

88. The claimant concluded with the point that Mrs Hamilton had been aware that there had been mitigating circumstances caused by the bullying and harassment of him at the time and that these had not been taken into account.

89. After this meeting Mrs Moorehead made further inquiries arising from the claimant’s comments at the disciplinary hearing. She spoke to Ms Coyle and put to her the points made by the claimant, being, that it had been Ms Coyle who had used the term “not focussed”, that she had coerced the claimant or put him under pressure to answer her questions and that she herself had admitted to incorrectly flagging calls. Ms Coyle denied these suggestions.

90. Ms Coyle was also asked if the claimant had reported any difficulty with a faulty headset but she stated that although this issue was raised to her by others from time to time she had no recollection of the claimant having approached with such a query.

Disciplinary Decision Meeting

91. The claimant was invited to attend a disciplinary decision meeting on the 24 January 2011 when he was advised that the respondent had found the allegations against him to have been proven, that he had committed a very serious offence and that he was dismissed. The claimant was advised of his right to appeal this decision.

The Appeal

92. By letter dated 27 January 2011 the claimant appealed this decision. His letter set out the grounds of his appeal which included the following;

Not all evidence against him had been provided to him

That the matter had been predetermined against him

Denial of representation at investigation meeting with Mrs Moorehead

Incorrect call statusing on dates when he had been on leave and the failure to accept that mistakes could be made

No due consideration to allegation of faulty headset

Respondent formed a hasty belief in his guilt of misconduct

Production of some evidence just prior to disciplinary hearing

No equality of arms

93. The claimant also requested a copy of the document from which the call sheet had been prepared and a copy of the notes of the disciplinary hearing.

94. The respondent replied to the claimant by letter of 1 February 2011 and dealt with each ground of the appeal. They reiterated the answers they had previously given to these points and provided the claimant with the documents and notes as requested.

95. The respondent advised the claimant of the date for the appeal hearing, 9 February 2011.

Appeal Hearing

96. The respondent wrote to the claimant on 1 February 2011 and identified 4 broad grounds of appeal which they had distilled from his letter to them. These were the issues that were to be discussed at the appeal hearing (which subsequently took place on Wednesday, 9 February 2011) and they comprised the following:-

(1) “Oonagh’s sheet.” The claimant had previously sought a copy of the calls Ms Coyle had originally attached to her message to Mrs Hamilton and it was a copy of this sheet that the claimant now required. The respondent explained that this information had already been provided to the claimant albeit it limited format and that this explanation had been accepted by him at his disciplinary hearing. They also added that prior to the disciplinary hearing on 21 January 2011, the claimant had been provided with time to look over this “sheet” and he was given ample opportunity to do this.

(2) “Audio copy of the 15 calls provided together with the full and complete dates.”

The respondent reiterated that an audio copy of the 15 calls provided to could not be provided to him because of the respondents’ obligation under Data Protection to protect third parties. However, the respondent went on to invite the claimant to attend their premises on 4 February 2011 to allow him further opportunity to hear the calls in advance of his appeal hearing. The respondent went on to set out the details of each of these calls in question.

(3) The claimant had requested a note of the disciplinary hearing of 21 January and the respondent provided him with this.

(4) “Allegations considered and conclusions made which led to the decision of dismissal by the panel”.

The respondent indicated that the full allegations made against the claimant had been supplied to him in format of the answer machine call report of 17 January 2011. The respondent advised the claimant that they had told him that the calls listed for 11 October 2010 would be disregarded for the purposes of the disciplinary as these have been archived under the wrong date.

The respondent included in this letter a note of their conversation with Ms Coyle which had taken place after the disciplinary hearing.

97. The respondent went on to advise the claimant that the appeal hearing was scheduled for 9 February and asked him to confirm that Ms Mullan would attend with him.

THE APPEAL MEETING

98. The claimant arrived at the appeal meeting without Ms Mullan and the respondent asked the claimant if he wished her to continue to represent him. The claimant agreed and the meeting was held up slightly to allow Ms Mullan to join them. Mr Joseph Thompson chaired the meeting and was attended by Mr Paul Thompson. Mrs Moorehead was present but only in the capacity of note taker.

99. The respondent asked the claimant to clarify what evidence he claimed had not been provided to him and by way of an answer the claimant submitted a letter to Mr Joseph Thompson. Mr Thompson returned the letter to the claimant and asked him to answer the question. The claimant stated that he had made countless requests for evidence and that they had not been provided to him, that “Oonagh’s sheet” was the main one and her note on the back of this sheet where she had written the word “major” on it.

100. Mr Thompson sought to identify any other evidence the claimant felt he had not been provided with and the claimant stated that there could be more, as far as he knew.

101. Mr Thompson asked the claimant to clarify his difficulties with the investigation meeting of 22 October 2010. The claimant indicated that he felt that, at the disciplinary hearing, the investigation meeting notes had made it sound that he had admitted his guilt and that it was due to depression and that in reaching his conclusion the disciplinary hearing had relied on the words “I could not have hung up on everyone”. The claimant stated that these remarks were inaccurate and that he had requested a witness to be present at the meeting but his request had been refused.

102. The claimant went on to state that he believed that the investigation meeting notes and evidence relied on had been constructed after the disciplinary hearing. He stated that this was because of the inaccuracies in them and that they had not been provided to him for signing after the investigation meeting. The claimant stated that this was contrary to the disciplinary procedure which states that evidence should have been provided to him before the disciplinary meeting.

103. The respondent noted that the claimant had not accepted their invitation to visit the premises and listen to a recording of the calls on 4 February 2011 and asked the claimant why he had not do so. The claimant stated that he had not seen the point in coming in to listen to them and that he had been refused the audio copy requested by him on the Data Protection Act.

104. During the meeting, the claimant stated that he had a submission to make (a letter) which he handed to Mr Thompson. Mr Thompson returned the letter to the claimant stating that he had already set out the grounds of his appeal and that the purpose of the meeting was to allow the claimant to speak to those grounds.

105. The claimant stated that other evidence had come to light. This was that he had discovered that when he left the disciplinary hearing on 21 January 2011 at 3.10 pm that it had continued in his absence. The claimant stated that the disciplinary panel had met with Ms Coyle to clarify issues and that neither he nor his representative had been allowed to participate in this.

106. Again, the claimant gave the respondent the letter enclosing his submission. The respondent accepted the letter and adjourned the appeal hearing for 20 minutes in order to peruse it.

107. Having read the letter, which contained a request for the appeal hearing to be adjourned, the respondent confirmed that the claimant’s appeal letter was the full extent of his appeal. The respondent reminded the claimant that they had confirmed with him these would be the issues discussed at the appeal hearing. In light of this, the respondent refused to adjourn the appeal hearing and advised the claimant that they would consider their decision and write to him within the next five days.

108. By letter dated 16 February 2011, Mr Joseph Thompson advised the claimant that he could find no evidence that the disciplinary panel had acted unfairly in the disciplinary proceedings against him and that he upheld their decision and confirmed his dismissal. Mr Thompson attached to this letter a 22 page document setting out his analysis of each of the grounds of the appeal, his analysis of the evidence relating to each of the claimant’s grounds of appeal and his findings in relation to each of them. The Tribunal noted that this was an extremely comprehensive review of the disciplinary hearing and all events relating to the claimant’s dismissal in October 2010.

THE LAW

Unfair Dismissal

109. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer. Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.

110. Article 130 states at paragraph (2) a reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.

111. Article 130(4) states where the employer has fulfilled the requirements at 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.

112. Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.

113. The statutory test for what reasons may amount to dismissal are set out at Article 130 of the Order. These include capability of modifications, conduct, redundancy, a statutory -necessary dismissal or some other substantial reason.

114. It is for an employer to establish the reason for the dismissal and that this dismissal falls into one of those potentially fair categories. The decision as to whether the decision to dismiss is fair must be decided (by a Tribunal) with reference to:-

(a) whether in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably or unreasonably in keeping it as a sufficient reason for the dismissal; and

(b) this decision shall be determined in accordance with equity and the substantive merits of the case.

Case Law

115. The Tribunal took relevant case law into account and in particular:-

British Home Stores v Burchell [1978] IRLR 379.

Rogan v South Eastern Health and Social Care Trust [2009] NICA 57.

116. It is case law that gives a Tribunal guidance on the way in which it should carry out this determination. A Tribunal must examine whether the respondent had a reasonable belief in the reason for the dismissal and that that belief was sustained by the employers having carried out a reasonable investigation and that the ultimate sanction of dismissal is “within the band of reasonable responses” of what other reasonable employers would have done in the same circumstances.

117. If a Tribunal concludes that the employer had a reasonable belief in the guilt of the employee of the misconduct as charged as informed by the employers having carried out a reasonable investigation and that the employer’s response is within the band of reasonable responses a Tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view for that of the employer.

118. In assessing this statutory test in light of the guidance in British Home Stores v Burchell as adopted in Rogan v South Eastern Health and Social Care Trust the Tribunal can only scrutinise the employers’ belief and the quality of the investigation conducted to see if these were “reasonable”. The Tribunal cannot conduct an investigation of its own nor can it criticise an employer for not conducting a more stringent investigation. This Tribunal considers that an employer’s investigation includes the whole of the disciplinary process up to the point of the appeal hearing and decision.

The Tribunal’s Conclusions

119. In light of the facts found and how the law applies to these the Tribunal concluded that the claimant had not been unfairly dismissed.

120. In reaching this conclusion the Tribunal took account of the numerous and thorough steps the respondent took to investigate the reason for the dismissal itself. This took the form of exploring the possibility of the claimant’s failure properly to status calls and statusing calls incorrectly by checking this possibility through their recording system, forming a view on this, putting it to the claimant who accepted what he had done and reporting the matter to management.

121. The Tribunal noted that management spoke to their informant and thereafter conducted a thorough investigation, including meeting the claimant and putting their concerns to him at that stage.

122. At the conclusion of these stages the claimant had not denied that he had done what the respondent were putting to him and the Tribunal concluded that the respondent had formed a reasonable belief in the guilt of the claimant at least sufficient to instigate the disciplinary process.

123. The Tribunal concluded that thereafter the respondent had conducted a reasonable investigation in that they had adjourned the disciplinary process to facilitate a lengthy grievance investigation, during the resumed disciplinary process right through to the final appeal, addressed every new point raised by the claimant, however spurious.

124. The Tribunal also took into account the respondents’ attention to detail in how they conducted the disciplinary process and their careful consideration to each of the claimant’s lengthy written submissions at each stage these were presented to them, even after the point when the respondent had told the claimant that such written submissions were unnecessary or helpful. The Tribunal concluded that in doing so the respondent had allowed the claimant two representatives to act for him in this process.

125. The claimant was accompanied by Ms Mullan to all meetings after the investigation meeting and as each submission had been written by the claimant’s father the claimant was effectively availing of two sources of support. This was all the more noticeable by the fact that the claimant himself was unable to speak to his father’s submissions himself but had sought the respondent to read these for themselves.

126. The Tribunal is not reaching the conclusion that the claimant ought to have read out his father’s submissions but it appeared to the Tribunal, from the claimant’s refusal to speak to his father’s submissions when invited to do so, his refusal to do so was likely to have been because he was not familiar with their contents.

127. The Tribunal had no hesitation in concluding that the respondent had carried out a reasonable investigation into the allegations of falsifying records against the claimant which sustained their reasonable belief in the claimant’s guilt and that their decision to dismiss him was fair.

128. The Tribunal also concluded that the respondent had also investigated thoroughly those matters that the claimant had sought to rely on as mitigation, the alleged bulling etc. The Tribunal noted that the respondent had halted the disciplinary process to investigate these allegations thoroughly and in not upholding the grievance this mitigation was lost to the claimant.

129. Accordingly the Tribunal concluded that the clainat was not unfairly dismissed and his claim fails.

Chairman:

Date and place of hearing: 5 and 6 December 2011, Strabane.

Date decision recorded in register and issued to parties: