Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1754/12  

 

 

CLAIMANT:                 Wayne Green

 

RESPONDENT:           Kemfast P.A.S.S. Ltd

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant did not receive a Statement of Main Terms of Employment and is therefore entitled to two weeks’ pay being £565.36.  The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

 

 

Constitution of Tribunal:

 

Chairman:                   Ms F Oliver

 

Members:                   Mr I O’Hea

                                   Mr P Kearns

 

 

Appearances:

 

The claimant was represented by Ms Sarah Hansen, Barrister-at-Law, instructed by Messrs Holmes and Moffit.

 

The respondent was represented by Mr Timothy Warnock, Barrister-at-Law, instructed by Messrs Millar McCall Wylie Solicitors.

 

 

EVIDENCE

 

          The tribunal considered the oral evidence from Lynne Seaton, Gary Faulkner, Ian McKeown and Jim Collins on behalf of the respondent and oral evidence from the claimant.  The tribunal were also provided with an agreed bundle of documents.  A letter was provided by the claimant from a work colleague which was not agreed.

 

 

THE ISSUES

 

1.       The claimant claims that he was unfairly dismissed on 17 July 2012 contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (ERO).  The respondent accepts that the claimant was dismissed but contends that the dismissal was not unfair.  In the context of this claim, the following issues arise for determination by the tribunal:-

 

          i.        Whether the respondent after a reasonable investigation held a genuine belief that the claimant committed a disciplinary offence by using his own gym equipment on work premises during working hours without permission.

 

          ii.        If so, was dismissal for that offence within the range of reasonable responses for an employer?

 

          iii.       Whether the reason given by the respondent for dismissal was the real reason for dismissal.

 

          iv.       In the event that the tribunal concludes that the claimant was unfairly dismissed, did the claimant by his conduct contribute to his own dismissal and, if so, to what extent?

 

 

THE FACTS

 

2.       The respondent company is a small business set up in 2003 with 4 employees and now employing approximately 26 employees.  The company’s main purpose is to provide storage facilities for a large client.

 

          The company has two sites, the main site at Prince Regent Road and an ancillary warehouse at Moscow Road, both in Belfast.

 

          Employees clock on for work at the Prince Regent site and take their tea and lunch breaks there.  There are no lunch facilities at the Moscow Road site.

 

          The company has a flat management structure.  This is a deliberate policy by the managing director as he wished to keep managerial input to a minimum.  The company relied very heavily on employees fulfilling their role without direct supervision and with as little managerial input as possible.  

 

          The claimant commenced employment with the respondent on 30 November 2010 as a warehouse driver/operative.

 

          On 17 April 2012, the claimant sustained an injury to his wrist and he was off work from that date.

 

          On 19 June 2012, Lynne Seaton, a self-employed business management consultant, was asked to go and look at the premises on Moscow Road to see if they could be made suitable for use as a more permanent site.  Whilst she was there, she came across gym equipment in a side office which she initially assumed belonged to the Landlord of the site.  The gym equipment consisted of a pull up frame, and various sets of weights in working order.

 

          Later in the day it became apparent that the gym equipment actually belonged to the claimant.

 

          The managing director, Mr Gary Faulkner, was informed of the position and he asked Ms Seaton to carry out an investigation of the position regarding the gym equipment.

 

          Ms Seaton obtained statements from four employees which indicated that the claimant had used gym equipment at the Moscow Road site on at least one occasion during working hours.

 

          The managing director took the view that this was a very serious matter as it indicated to him that he could no longer trust the claimant, particularly in relation to managing his own workload without supervision.

 

          By letter of 2 July 2012, the claimant was called to a disciplinary hearing on 5 July 2012.  The letter clearly outlines the issues to be considered and makes it clear that a finding of gross misconduct could result in summary dismissal.

 

          The claimant attended the hearing on 5 July 2012 accompanied by a colleague, Simon Wilson.

 

          The claimant was dismissed for gross misconduct following the disciplinary hearing.

 

          The claimant appealed the decision and the appeal was heard by an independent investigator, Mr Tim Collins, who dismissed the appeal and upheld the company’s decision to dismiss.

 

          No issue was taken by the claimant’s representative regarding the fairness of the disciplinary process and we find that the process was fair and open and that the company was entitled on the evidence before it to make a finding that the claimant had used the gym equipment during working hours without permission and that this amounted to gross misconduct.

 

 

RELEVANT LAW

 

3.       The issue for the tribunal is to determine whether the dismissal was fair or unfair in accordance with Article 130 of the Employment Rights (Northern Ireland) Order 1996.  It is for the employer to show the reason for the dismissal, and that it is a potentially fair reason within Article 130(2) of the Order.  In this case the respondent relies on the claimant’s conduct.

 

          By Article 130(4) 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 the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

 

          (b)      must be determined in accordance with equity and the substantial merits of the case.

 

4.       The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47.

 

          Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

                    “130-(1)        In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

 

                                        (a)      the reason (or if more than one the principal reason) for the dismissal and

 

                                        (b)      that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

                              (2)      a reason falls within this paragraph if it –

 

                                        (b)      relates to the conduct of the employee, …..

 

                              (4)      where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

 

                                        (a)      depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

 

                                        (b)      shall be determined in accordance with equity and the substantial merits of the case.”

 

5.       The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

 

                    “(49)     The correct approach to [equivalent GB legislation] was settled in two principal cases  –  British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined principally in the judgements of Mummery LJ in two further cases Foley  v  Post Office and HSBC Bank Plc (formerly Midland Bank)  -v-  Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR111.

 

                    (50)       In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

                                         “Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

                                        (1)   the starting point should always be the words of [equivalent GB legislation] themselves;

 

                                        (2)   in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

 

                                        (3)   in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

                                        (4)   in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

 

                                        (5)   the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”

 

                    (51)       To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

                                         “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, it must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term, such as to put the matter “beyond reasonable doubt”.  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

 

                                 In Bowater  v  North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  The employment tribunal had determined that a sexually suggestive remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal.  Lord Justice Longmore stated at Paragraph 18 of the decision that:-

 

                                        “I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

 

6.       In Fuller  v  London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal was again considering a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer.  Lord Justice Mummery stated at Paragraph 7 of the decision that:-

 

                    “In brief the counsel’s case on appeal that the ET erred in law.  It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’.  That favourite form of words is not statutory or mandatory.  Its appearance in most ET judgment in unfair dismissal is a reassurance of objectivity.”

 

          At Paragraph 38 of the decision, he continued:-

 

                    “On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair.” 

ANALYSIS OF EVIDENCE

 

7.       The tribunal was asked by the claimant to make a finding that the reason given by the respondent for dismissal was not the true reason for dismissal.  In the statement attached to the ET1, the claimant contended that the real reason for his dismissal was that he had been absent from work as a result of an injury he sustained at work.  At hearing the claimant then stated that the real reason was that he had made a claim for injuries and because of his disclosures to Health and Safety.  The tribunal noted that none of these explanations for dismissal was raised by the claimant either at the initial disciplinary hearing or at the appeal hearing.  When asked to explain this, the claimant stated that he did not know he could raise these issues.  We do not accept that explanation.  If the claimant had indeed thought that the real reason for his dismissal was his absence from work, we believe that the claimant would have raised this at the time.

 

We accept that there was some argument between the claimant and the employer regarding his entitlement to sick pay during his period off sick and we also accept that there was dispute over when the claimant would return to work.  However, we did not believe that this was the reason for the dismissal.  We found the evidence from Ms Seaton to be honest and straightforward and we accepted her evidence that she raised the issue of the gym equipment for the simple reason that it would have to be removed from the premises.  It was this request which set the chain in motion in respect of an investigation into the claimant’s use of the gym equipment.

 

          We accept the evidence from Mr Faulkner that his reason for dismissing the claimant was as a result of his using the gym equipment during working hours without permission.  We accept Mr Faulkner’s evidence that he considered that this was a breach of trust by the claimant and that in view of the system of flexibility and independence which he encouraged within the workforce, the appropriate sanction was dismissal.

 

          We also found the evidence from Mr Collins to be useful when we addressed our minds to the severity of the sanction imposed.  The tribunal must decide if the sanction of dismissal was within the band of reasonable responses which a reasonable employer might adopt.  Mr Collins was clear that he considered whether a sanction short of dismissal would have been appropriate but he came to the conclusion after consideration of all the issues that dismissal was appropriate and so he did not uphold the appeal.

 

 

APPLYING THE LAW TO THE FINDINGS OF FACT

 

8.       We find that the claimant was dismissed for gross misconduct in that he brought gym equipment on the company’s premises and used it without permission during working hours.  We accept that this constituted gross misconduct and one of the appropriate sanctions is summary dismissal.  We gave careful thought to whether this sanction fell within the band of reasonable responses of a reasonable employer.  We noted the structure of this company and the reliance which was placed on being able to trust employees to carry out their work without excessive supervision.  We find that the decision to dismiss is one which a reasonable employer could have taken and we therefore find that the claimant was not unfairly dismissed.

 

          We find that the claimant was not provided with written terms of employment and is therefore entitled to two weeks wages being £565.36.

 

9.       This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

Chairman:

 

Date and place of hearing:  26 March and 12 April 2013, Belfast.     

 

Date decision recorded in register and issued to parties: