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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Lyons v Henderson Wholesale Ltd [2013] NIIT 01410_12IT (09 April 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1410_12IT.html
Cite as: [2013] NIIT 1410_12IT, [2013] NIIT 01410_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1410/12
CLAIMANT: Michael Lyons
RESPONDENT: Henderson Wholesale Ltd
DECISION
The decision of the Tribunal is that the claimant was not unfairly dismissed.
Constitution of Panel:
Chairman: Ms P Sheils
Members: Mr H Fox
Mrs E Gilmartin
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Barry Mulqueen, Barrister-at-Law, instructed by Hewitt and Gilpin Solicitors Ltd.
THE CLAIM AND THE RESPONSE
The Claim
1. The claimant lodged a claim form on 28 July 2012 alleging that he had been unfairly dismissed.
The Response
2. The respondent presented the response on 31 August 2012. The respondent accepted that they had dismissed the claimant but this was due to gross misconduct, namely serious insubordination by disregarding a reasonable instruction issued by his line manager.
The respondent’s title
3. The title of the respondent was amended to that shown above.
SOURCES OF EVIDENCE
Witnesses
4. The Tribunal heard evidence from the claimant.
5. On behalf of the respondent the Tribunal heard from Mr Frank Sillitoe, Deputy Assistant Manager, Mr Alan Abraham, Warehouse Manager and Mr Philip Mahaffey, Operations Manager.
DOCUMENTS
6. The Tribunal was given two trial bundles, one from the claimant, and one from the respondent and took into account only those documents out of each to which the parties referred.
FACTS
7. The Tribunal found the following relevant facts as agreed, or as proven on a balance of probabilities:-
The
claimant worked for the respondent from January 2008 up to his dismissal
in May 2012. He was employed as a Warehouse Supervisor. This case arose
out of events which occurred on the late night and early morning of the
claimant’s
work-shift on the 20/21 April 2012.
8. During the course of this work shift the claimant told his line manager, Mr Mark McGuinness, that he wanted to leave work early at 12.30 am. Mr McGuinness told the claimant that ordinarily he would have agreed to this request but due to issues around the need for greater team effort, the claimant should run his request passed one of two senior managers, either Mr Frank Sillitoe or Mr Frankie Whiteside.
9. The relevant team issues had been raised by Mr McGuinness with the claimant and his colleague at a meeting earlier that same day. The discussion had related to team targets and for the team to be more aware of their need to achieve their goals. At that meeting Mr McGuinness intimated that their team was now under close scrutiny by senior management and he called for the team to carry out all their expected duties and requests as the failure to do so might result in all of them facing stringent scrutiny from senior management.
10. Having spoken to Mr McGuinness the claimant sent an e-mail to both Mr Sillitoe and Mr Whiteside. It read:-
“Hi guys, I was supposed to get work done on my wet room this Sunday although the guy has phoned to say he can only do it in the morning therefore I will need to go at 00:30 as I will have to get the shower taken out and get the room prepared. I will also be giving the guy a hand and will need to be up early doors, therefore can’t stay to finish as I would only get a few hours sleep. This was a last minute thing, regards, Michael.”
11. Mr Sillitoe responded to this and there ensued an exchange of e-mails between him and the claimant thus:-
“Michael you have already been given time this week to sort out your personal issues. You are required to work until the end of the shift tonight, regards, Frankie”.
The claimant replied
“Hi Frankie I don’t want to make a big issue of this, I haven’t been given time off this week, on Wednesday I was stuck in a traffic jam due to a car crash on the Antrim Road as previously discussed. I am not asking to get away early, I am just letting you know that I cannot stay on due to legitimate reasons. Are you ok with this request as I don’t want to get anyone’s back up, regards, Michael.”
To this Mr Sillitoe replied
“Hi Michael, you are required to work until the end of the shift, please arrange your work at home around your weekly work schedule, thank you, regards, Frankie.”
12. The claimant left work at 00:30 am. Before leaving, he sent an e-mail to Ms Emma Gibson in Human Resources saying that he had wanted to leave early and that he had already worked over his basic hours this week and was unable to stay on to do additional hours. The claimant stated that he did not think he was asking much and that he believed he was not being treated fairly.
13. The claimant advised Ms Gibson that he was lodging a formal complaint about this. He stated that he knew Mr Sillitoe would be unhappy (that he had left work) but that he had tried to resolve the matter. The claimant added that he would send Mr Sillitoe an e-mail to let him know he had made this complaint against him and stated that he found it unfortunate to have had to lodge a grievance.
14. Ms Gibson contacted the claimant on 23 April 2012 to acknowledge his e-mail. She invited the claimant to try to resolve his complaint informally in the first instance with Mr Sillitoe before resorting to formal grievance to give him time to respond. The claimant agreed to meet Mr Sillitoe and this meeting took place on 25 April 2012.
MEETING ON 25 APRIL 2012
15. There was some confusion between the parties as to the purpose of this meeting. As far as the claimant was concerned, he had asked for the meeting on Ms Gibson’s advices as an informal discussion with his Mr Sillitoe about the complaints he had against him before proceeding to formal grievance.
16. However, at the end of this meeting, Mr Sillitoe stated that he had a separate issue that he wished to discuss. He expressed his disappointment that the claimant had not stayed to finish his shift on the Friday night and advised the claimant that he was recommending a disciplinary hearing for his failure to carry out a reasonable work request.
17. The claimant claimed that the respondent did not follow their proper procedures in relation to the hearing of his grievance, that it was not properly heard or completed and that this failure contributed to the unfairness of his dismissal.
18. A review of the minutes of this meeting made clear that the greater part of it consisted of Mr Sillitoe’s analysis of the claimants “concerns”, as raised by him in the grievance. The exchange of e-mails was discussed and at one stage the claimant stated that Mr McGuinness had “okayed” his leaving early but then stated that Mr McGuinness had not actually said yes but that the claimant had got that impression.
19. At another stage in the meeting Mr Sillitoe queried why the claimant had chosen to take a grievance against him without first approaching Mr Sillitoe’s manager.
20. It was clear from the note of this meeting that Mr Sillitoe had investigated the level of staffing that had been in place on the Friday night in question and had also investigated the claimant’s working hours.
21. The claimant’s complaints were distilled into his reluctance at having to work every Friday until 3:00 am and what the claimant perceived as a lack of support for him in Mr Sillitoe’s insistence that he finish his shift on the Friday night in question.
22. In response to these concerns, Mr Sillitoe stated that they needed to discuss a way forward when “something like that happens”, namely the late request to leave early and that he would look at Fridays to see what could be addressed.
23. When the claimant stated that he would just like to finish at 00.30 on the odd Friday here and there, maybe one in three, Mr Sillitoe replied “the Friday hours are a separate issue which I will discuss with you at another stage”.
24. There was also a discussion about the level of the claimant’s working hours. Mr Sillitoe had averaged these out at 36 hours per week. The claimant disagreed with this calculation and stated that he was working an average closer to 42 or 45 hours per week.
25. When Mr Sillitoe offered to look again at the claimant’s overall hours for the week, the claimant stated that he had really wanted the meeting to discuss the e-mails from Friday the 20th. Mr Sillitoe then said he would look at Friday’s and see what can be addressed.
26. After this discussion and towards the end of the meeting, Mr Sillitoe stated that he had a separate issue that he wished to discuss. He expressed his disappointment that the claimant had not stayed to finish his shift on the Friday night and advised the claimant that he was recommending a disciplinary hearing for his failure to carry out a reasonable work request.
27. The following day the claimant went to Human Resources and sought clarification of this meeting. He was under the impression that this meeting was the informal discussion about the complaints raised by him in his grievance, against Mr Sillitoe, arising out of Friday the 20th, which had been the course of action recommended to him by Ms Gibson.
28. On 26 April he was advised by Human Resources that the meeting had been the informal discussion regarding his grievance complaints, namely the manner in which Mr Sillitoe had dealt with the claimant’s request to leave early on Friday the 20th and the claimant’s excessive working hours.
29. Human Resources advised the claimant that Mr Sillitoe had advised them that, arising out of the meeting, he would be investigating the claimant’s working hours and be reverting to the claimant with a response thereafter. Human Resources also advised the claimant that there was now a separate alleged misconduct issue and that Mr Sillitoe had recommended that this proceed to a formal disciplinary hearing.
30. The Tribunal found that this meeting consisted of both the informal discussion around the claimant’s grievance and a meeting at which the claimant was advised that there would be a disciplinary hearing for the claimant’s failure to carry out a reasonable work request. The Tribunal concluded that this was at best an unhelpful conflagration of processes that gave rise to the claimant’s feelings of unfairness of process.
31. The claimant’s grievance had two aspects, his reluctance at having to work every Friday until 3:00 am and what the claimant perceived as a lack of support for him in Mr Sillitoe’s insistence that he finish his shift on the Friday night in question. The Tribunal concluded that this second aspect was converted from a grievance to a misconduct issue, without explanation or clarification.
32. For example when in the earlier part of the meeting Mr Sillitoe had dealt with the early leaving issue and, in response to the claimant saying “I was just letting you know that I needed to go I wasn’t requesting to go early but I was just saying that I couldn’t stay on and with the pack the way it was I knew I would have to stay, something came up and it was just one of those things” had replied “we will need to discuss a way forward when something like that happens again” the Tribunal concluded that this remark was disingenuous as it was apparent that Mr Sillitoe had pre-determined to deal with this as a disciplinary matter.
THE DISCIPLINARY HEARING
33. By letter dated 3 May 2012, the claimant was invited to a disciplinary hearing to take place the following day, 4 May 2012, in relation to the allegation of “serious insubordination by failing to carry out a reasonable instruction on 21 April 2012, to remain on site and continue your duties. It is alleged that you disregarded the reasonable instruction issued by your line manager and left work premises without authorisation from 21 April at 12:41 am”.
34. The claimant was advised that the respondent regarded such an act as gross misconduct which could result in his dismissal. The claimant was invited to bring a companion to the disciplinary hearing.
35. In the event, the disciplinary hearing took place on 15 May 2012 and it was chaired by Mr Alan Abraham. The hearing addressed the allegation of serious insubordination and canvassed why, in spite of e-mails requesting him to stay until the end of his shift, the claimant had left his shift early at 12:30.
36. In particular, it was put to the claimant that his e-mails appeared to be stating that he would be leaving rather than making a request to do so. The claimant was reminded that Mr Sillitoe was at management level, at least equivalent to Mr McGuinness, and was asked why he had ignored Mr Sillitoe’s clear instructions.
37. By way of response, the claimant stated that he had followed the authorisation he had received from Mr McGuinness. However the claimant conceded that he had not advised Mr Sillitoe of this.
38. On
a number of occasions during the hearing the claimant stated that he had got
prior authority to leave from his Manager, Mr McGuinness, who had no
problem with his request. However the claimant confirmed that on receipt of Mr Sillitoe’s
e-mails requiring him to finish his shift, he had not sought further
clarification from Mr McGuinness on the subject. The claimant conceded
that, no matter what Mr Sillitoe said, he had decided that he would go
home in any event.
39. During the disciplinary hearing, Mr Abraham was unable to explain why Mr Sillitoe had not wanted the claimant to leave work early that evening. Following a brief adjournment Mr Abraham asked the claimant a number of pertinent questions around staffing levels on the night of the 20/21 April 2012.
40. The claimant confirmed that there had been a number of difficult staffing issues, including absence and sickness. However the claimant disputed that his leaving early further compounded the staffing levels and compromised the length of time it took to complete the work.
41. In the event, Mr Abraham concluded that the claimant should be dismissed with immediate effect. He stated that the reason for the dismissal was the claimant’s serious insubordination in his disregard of two requests to remain on shift. Mr Abraham stated that this amounted to breach of trust and confidence in the claimant in his going forward as their employee and that dismissal was appropriate in the circumstance.
42. In reaching this decision Mr Abraham took into account the fact that the claimant had not advised Mr Sillitoe that the claimant had obtained prior authorisation from Mr McGuinness for his leaving.
43. Mr Abraham also considered the fact that the claimant was a supervisor and a team leader to a number of employees and that in this role the claimant had failed in his obligation was to set an example, at the least complete work the claimant was contracted to finish and by leaving early.
44. Mr Abraham also stated that he had taken into consideration the fact that the claimant’s leaving early had added an element of costs to the Company, by further compromising staffing levels.
THE APPEAL
45. The claimant exercised his right to appeal this decision. This appeal was heard by Mr Philip Mehaffey on 4 June 2012.
46. The claimant’s grounds of appeal included that he had not left his shift without permission, inconsistent treatment with others, communication issues, harshness of the decision, his previous work history, health and safety issues around loss of sleep, personal issues and factual issues.
47. Each of these issues was fully canvassed at the appeal hearing. In particular, the claimant again maintained that he had got permission to leave from Mr McGuinness, that he had been treated differently than someone he identified who had been in a previous position and not been dismissed, that he had 16 years clear work record, that he was exhausted and there was a likely health and safety issue on the grounds of that and that he had had to take the time to deal with an urgent family matter. These issues were also aired at this hearing but the claimant brought no evidence to support his contentions.
48. At the appeal hearing the claimant conceded that he had not told Mr Sillitoe that he had got prior permission from Mr McGuinness. He also accepted that his e-mail to Mr Sillitoe could be construed as his telling Mr Sillitoe he was leaving rather than asking his permission to do so.
49. The claimant cited an example of his having reported, in 2011, the failure by one of his team to comply with a reasonable management instruction where no action had been taken and stated that there were probably other people who had done the same thing and not been dismissed.
50. It
was also accepted by the claimant that he had a previous final written warning.
The claimant also complained that Mr Sillitoe had not warned him in his
replying
e-mails that there was a possible consequence to the claimant of not staying
until the end of the shift.
51. The claimant referred to a recent discussion he had had with Mr Whiteside in relation to sleep deprivation and reiterated his view that his working hours had been wrongly calculated at 36 hours rather than 45 hours per week.
52. The claimant also maintained Mr Sillitoe ought to have warned him of the possibility that he could lose his job if had not stayed until the end of his shift.
53. The appeal hearing was adjourned to conduct further investigations. Subsequently Mr Mehaffey spoke to Mr McGuinness. Mr McGuinness told Mr Mehaffey that the claimant had spoken to him on the evening of 20 April 2012 and had told Mr McGuinness that he would be going home at 12:30. Mr McGuinness advised Mr Mehaffey that he had told the claimant that this was not a good idea but if that he was still thinking about going home, he would need to get authority from Mr Sillitoe and Frankie Whiteside.
54. Mr Mehaffey also interviewed Mr Sillitoe. Mr Mehaffey queried why Mr Sillitoe had not advised of consequences of the claimant leaving the depot without authority and Mr Sillitoe replied that he had not thought that the claimant would have left without permission.
55. Mr Mehaffey also investigated the alleged inconsistency of treatment as put forward by the claimant and concluded that the two situations arose out of different circumstances.
56. Mr Mehaffey refused the appeal and upheld the original decision to dismiss. He concluded that on 20 April the claimant had not had authority to leave early and that the claimant had been aware of this. He concluded that the claimant had disregarded two clear and unequivocal written requests from management to remain on site.
57. Mr Mehaffey based his decision on what he understood was the clear business justification insisting that the claimant remain on shift and concluded that the claimant’s leaving work without authority represented serious insubordination resulting in a major breach of the trust and confidence expected from an employee, especially from the claimant in a supervisory capacity. Mr Mehaffey did not take the claimant’s previous Final Written Warning into account when reaching this decision.
THE LAW
Unfair Dismissal
58. 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.
59. 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,
(c) is that the employee was redundant or,
(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.
60. 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) –
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;
shall be determined in accordance with equity and the substantial merits of the case.
61. 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.
62. The statutory test for what reasons may amount to dismissal is set out at Article 130 of the Order. These include capability of modifications, conduct, redundancy, a statutory-necessary dismissal or some other substantial reason.
63. 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
64. The Tribunal took relevant case law into account and in particular:-
British Home Stores Ltd v Burchell [1978] IRLR 379.
Rogan v South Eastern Health and Social Care Trust [2009] NICA 57
65. Case law gives the Tribunal guidance on the way in which it should carry out its determination. The 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.
66. If the Tribunal concludes that the employer had a reasonable belief in the guilt of the employee of the misconduct as charged, as informed by having carried out a reasonable investigation and that the employer’s response is within the band of reasonable responses, the Tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view for that of the employer.
67. In assessing this statutory test in light of the guidance in British Home Stores Ltd 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
68. In light of the facts found and how the law applies to these the Tribunal concluded that the claimant had not been unfairly dismissed.
69. In reaching this conclusion the Tribunal noted that the respondent had dismissed the claimant for their belief that he had been guilty of serious insubordination in refusing to follow instructions to complete his work shift on the night of 20 April which belief they based on their reasonable investigation.
70. The Tribunal concluded that the early conflagration of the grievance and disciplinary processes was unhelpful but given the extent of the subsequent disciplinary and appeal processes concluded that it had not contributed to the decision to dismiss the claimant or amounted to sufficient unfairness to tarnish that decision.
71. The Tribunal concluded that the respondent otherwise reasonably investigated the claimant’s contentions that he had not left work or not unreasonably left without permission by exploring all the issues raised by him during the investigation.
72. In addition the Tribunal concluded that the respondent’s belief that the claimant had left work without permission was reasonably founded given the claimant’s own initial concession in this regard and the evidence of Mr McGuinness that Mr McGuinness had not given permission at all but had advised the claimant to seek permission from either Mr Sillitoe or Mr Whiteside.
73. The Tribunal further concluded that the respondent also properly and reasonably investigated whether the instruction to stay had been a reasonable. This was particularly important where the claimant conceded that he had only been telling Mr Sillitoe that he was leaving early and that he had intended to leave, no matter what. Although the claimant disputed the respondent’s rationale for deciding that staffing levels were compromised by his having left early the Tribunal was satisfied that they investigated this point sufficiently to take a reasonable view on it.
74. The Tribunal noted that in deciding to dismiss the claimant the respondent did not penalise the claimant for his erroneous assertion that he had a clear service record nor did they take the previous Final Written Warning itself into account.
75. The respondent was clear that when considering how to deal with the claimant’s offence of serious insubordination they had done so in the context of his role as supervisor and the bad example he had set for his team and had taken account of the compromising and costly position in which he had placed them.
76. The Tribunal concluded that the decision to dismiss the claimant on the factual issues they established and in the above circumstances did not fall out with the band of responses that other reasonable employers would have chosen in the same circumstances.
77. Accordingly the claimant’s claim for unfair dismissal fails.
Chairman:
Date and place of hearing: 27 & 28 November 2012, Belfast.
Date decision recorded in register and issued to parties: