Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS  

 

CASE REF:    176/12

 

 

CLAIMANT:                           Jacqueline Blain

 

RESPONDENT:                     South Eastern Health and Social Care Trust

 

 

 

DECISION

 

The unanimous decision of the Tribunal is that the claimant's claim is dismissed.

 

 

Constitution of Tribunal:

 

Chairman:                             Ms P Sheils

 

Members:                             Mrs C Stewart

                                             Mr J Patterson

 

 

Appearances:

 

The claimant appeared and represented herself.

 

The respondent appeared and was represented by Mr F O’Reilly of Counsel, instructed by Directorate of Legal Services, Business Services Organisation, Belfast.

 

 

 

THE CLAIM

 

1.       The claimant, whose date of birth is 6 May 1967, was employed by the respondent in August 2001 as an Auxiliary Nurse.  The claimant was ultimately dismissed by the respondent on 22 October 2011 and the claimant contended that her dismissal was unfair on the basis that the respondent had failed to follow procedures in setting out in writing details of her alleged misconduct or other circumstances which had led them to dismiss her and had failed to provide her with a document outlining the basis of the discussion at a meeting in September 2011 at which the decision had been taken to dismiss her.

 

 

THE RESPONSE

 

2.       The respondent’s response to the claim was that the claimant had been dismissed by them on 6 September 2011 on the basis that she had failed to accept numerous offers of alternative employment, that she had failed to co-operate with the respondent in its endeavours to secure her alternative employment and in her failure to return to work when she was fit to do so.

SOURCES OF EVIDENCE

 

3.       Witnesses

 

          The Tribunal was supplied with a number of witness statements.  The Tribunal took into account those witness statements whose proponents appeared at hearing, namely:-

 

          (a)      the claimant;

 

          (b)      for the respondent;

 

                    i.        Ms Denise Christie, Senior Human Resource Officer.

 

                    ii         Ms Tracey McKittrick, Human Resource Business Partner.

 

                    iii.       Mr Martin O’Toole, Human Resource Manager.

 

                    iv.       Mr Seamus McGoran, Director of Hospital Services.

 

                    v.        Mr Eamonn Molloy, Director of Human Resources and Corporate Affairs.

 

                    vi.       Sarah Browne, Assistant Director Older People Services.

 

                    vii.      Noeleen McCreanor, Assistant Director Human Resources.

 

                    viii.      Mrs Margaret Moorhead, Assistant Director Allied Health Professionals.

 

                    ix.       Miss Jennifer Buchanan, Assistant Director Employee Relations.

 

 

Documents

 

4.       The Tribunal was provided with a number of witness statements and other documents contained in the trial bundle, approximately 413 pages.

 

Facts

 

5.       The Tribunal found the following findings of fact as agreed or on a balance of probabilities;  

 

          Background 2005 to 2006

 

          In August 2005 and while the claimant was employed by the respondent as a Nursing Auxiliary, she brought a complaint against her Nursing Manager alleging assault.  At this time the claimant had just returned to work from a period of sick leave having sustained a shoulder injury in a road traffic accident. 

 

          The claimant alleged that when her nursing manager had taken her by the arm and escorted her to the Nursing Manager’s Office that this gesture had amounted to an assault and had further exacerbated her shoulder injury.

 

          An investigation was conducted and it was concluded that although the Nursing Manager’s actions had been inappropriate and had exacerbated the claimant’s
pre-existing injury the evidence was insufficient to conclude that the Nursing Manager had assaulted the claimant.

 

          The Nursing Manager resigned shortly after this incident but the Tribunal noted that there was no evidence to support the claimant’s contention that her resignation was a direct result of the incident in question.

 

          The claimant went on sick leave after this incident.  The claimant’s pay was reduced to half pay in or about December 2005 and in about May 2006 the claimant’s pay was reduced to zero.

 

          The claimant contended that during the period between the incident in August 2005 and February 2006 she frequently contacted the respondent to ascertain the result of the investigation.  The claimant alleged that she had had numerous telephone conversations with Mrs McKittrick, who had responsibility for making a determination after the investigation and the claimant alleged that Mrs McKittrick had been condescending and offhand to her in these conversations and had lied to her on a number of occasions.

 

          Mrs McKittrick refuted these allegations.  Mrs McKittrick accepted that the claimant had contacted her on several occasions and she referred the Tribunal to a note of one of these telephone conversations where she had recorded the claimant’s aggressive tone towards her and her own efforts to calm the claimant down so that she could advise the claimant of the outcome of the investigation.

 

          During one of these conversations and in or about 1 or 2 February 2006 the claimant advised Ms McKittrick that her reduction in pay was causing her financial difficulties.  Ms McKittrick explained to the claimant that as she had signed off as being medically unfit to work, the Occupational Sick Pay Scheme would apply to her in the normal way.

 

          The claimant attended Occupational Health on 14 February 2006.  The Consultant concluded that the claimant was unfit to return to her Nursing Auxiliary job but anticipated that she might be so fit within 4 to 6 weeks.

 

          In the event the claimant did not return to work within that timeframe.  Another Occupational Health referral appointment was made for her on 26 May 2006.

 

          The claimant contended that in the interim no suggestion was made to her that she should be redeployed.  The Tribunal noted that the issue of redeployment did not arise until the Occupational Health Report in 26 May 2006.

 

          This report recorded that the claimant felt she could return to work within the next few weeks but that she would prefer to return to a post that did not involve lifting and handling.  Mrs McKittrick received this report on 1 June 2006 and delegated to her team the task of redeploying the claimant.

 

          The claimant stated that she had never been given any opportunity to return to her Nursing Auxiliary job on the ward but that she had specifically requested lighter duties.

 

          Mrs McKittrick accepted that the claimant had not been offered further Auxiliary Nursing work.  She stated that although Auxiliary Nursing work at night-time would have involved less lifting and handling duties the claimant had advised a member of her team that she preferred day working only.

 

          Redeployment to Comber July 2006

 

          The claimant discussed her willingness to consider clerical duties and on 25 July 2006 the claimant was redeployed to the Manual Handling Team in Comber.  In spite of its title, this job did not involve lifting and handling by the claimant.  The claimant was advised this was a temporary post.

 

          In November 2006 Mrs McKittrick became aware of difficulties in the working relationships within the team at Comber.  Mrs McKittrick held a number of facilitated discussions to resolve these difficulties.  These took place between December 2006 and January 2007.  However, the claimant contacted Mrs McKittrick in May 2007 and advised Mrs McKittrick that she was unable to continue to work in the team.

 

          Mrs McKittrick asked the claimant to forward a written complaint about the incident that had occurred and she agreed to do so.  At this point, in May 2007, the claimant commenced another period of sick leave, suffering from laryngitis.

 

          The claimant did not submit a formal complaint at this stage.  She sought a copy of her personnel file stating that she needed to receive this before she could properly make her complaint.  The claimant stated that the failure to provide her with her personnel file contributed to the delay in her not making a formal complaint until January 2008.

 

          In July 2007 the claimant submitted a fit to work certificate.  However in a telephone call with Mrs McKittrick the claimant advised Mrs McKittrick that returning to the post in Comber was no longer an option.  At this point Mrs McKittrick advised the claimant that further redeployment could only be considered if the claimant made a formal complaint about what had happened in Comber between 2006 and 2007.

 

          Again the claimant advised Mrs McKittrick that she was holding back from making the complaint until she had received her personnel file.  Mrs McKittrick expressed surprise that the claimant had not received her file and queried why the claimant had not re-requested it from her in any of their conversations between May and July 2007.

 

          Mrs McKittrick also advised the claimant that the submission of the complaint was not dependent on the production of the personnel file and advised the claimant to submit the complaint as soon as possible.

 

          Mrs McKittrick was under the impression that the claimant was on sick leave and would continue to be so while her complaint was being resolved.  She herself was thereafter involved with the upheaval of RPA and was unaware of the fact that the claimant had not submitted her complaint as directed in July 2007 until she received a telephone call from the claimant on 30 November 2007.

 

          November 2007

 

          On 30 November 2007 the claimant contacted Mrs McKittrick to query a letter she had received form payroll advising the claimant that, in the absence of medical certificates from the claimant, the respondent concluded that her absence from work (from July to November 2007) was unauthorised.  The claimant was advised to submit medical certificates or her pay would be withheld.

 

          It transpired that the claimant had been under the impression that she had been on sick absence for laryngitis and pending the result of the investigation into the circumstances of her leaving her employment from Comber in May 2007.

 

          Mrs McKittrick reminded the claimant that she had not yet made a formal complaint.  Mrs McKittrick described the claimant’s tone and manner in that telephone call as so aggressive as to necessitate curtailing the telephone call.  However Mrs McKittrick stated that the claimant had said she would be contacting Mr Eamonn Molloy on the matter.

 

          In December 2007 the claimant reverted to no pay.  On 20 December 2007 the claimant contacted Mr Eamonn Molloy about this.  He confirmed that as they had received no medical certificates from her they had regarded her as being on a period of unauthorised absence.

 

          In what Mr Molloy described as a particularly difficult discussion he gathered that the claimant was under the impression that she was on leave pending an investigation and that her financial position was critical.  At this point, Mr Molloy again invited the claimant to submit a formal complaint in relation to this and as a good will gesture he returned her to the payroll immediately.

 

          Complaint about Comber, January 2008

 

          The claimant submitted a complaint on 4 January 2008 in relation to the events that had occurred in the Comber team prior to and up to May 2007.  This complaint included allegations of bullying and harassment by some of her colleagues.  An investigation was commenced in February 2008.  It was conducted by Ms Buchanan and Mr Robert Moore and concluded in March 2009.

 

          The investigation found no evidence to substantiate her complaint of bullying and harassment.  However the subsequent report concluded that there had been a breakdown in the working relationships and recommended that the claimant be redeployed as soon as practically possible.

 

          Complaint outcome and first discussions around redeployment, May 2009

 

          A meeting took place in May 2009 to discuss the report’s findings and the issue of redeploying the claimant.  It was conducted by Mrs Margaret Moorhead and Mr O’Toole.  The claimant was accompanied by her union representative.

 

          It was common case that the discussion around redeployment included a discussion about Band 2 clerical posts, equivalent to the grade she had been on as auxiliary nurse.  It was also agreed that the claimant had advised the respondent that she had now obtained a law degree and wanted the respondent to take this into consideration when redeploying her.

          The respondent’s case was that the claimant refused to consider a number of possible Band 2 clerical vacancies and had insisted that the respondent recognise her law degree when considering redeployment.  The respondent also stated that the claimant said that she did not want to be considered for a caring role.

 

          However the claimant denied that she had sought employment at a higher grade on account of the law degree.  She stated that she was simply opening up her CV to facilitate the redeployment process.  The claimant contended that she had given consideration to the possible clerical posts but that none of them had been suitable.

 

          The Tribunal accepted the respondent’s view of this meeting and found that the claimant had given scant regard to the possible clerical posts and had insisted that the respondent reflect her law degree achievement in redeploying her.

 

          Further redeployment meeting, 8 October 2009

 

          This meeting failed to reach a conclusion on redeployment and another meeting took place on 8 October 2009.  The claimant was again accompanied by her trade union representative.  Prior to the meeting Mr O’Toole sent the claimant an updated list of possible Band 2 positions for the claimant’s consideration.

 

          The claimant stated that none of the potential Band 2 vacancies had been suitable for one reason or another.  She denied that she had wanted a post commensurate with her law degree.  She claimed that all she had wanted was her old job back.

 

          The respondent stated that the claimant refused to give proper consideration to the potential vacancies provided to her and that she had again insisted they provide her with re-deployment possibilities commensurate with her now having a law degree.  Their evidence noted the claimant’s request to be considered for a post within the Trust’s Litigation Department.

 

          The respondent stated that they had advised the claimant that they could only
re-deploy her to a grade commensurate with the one she had vacated.  Their evidence on this also included an uncontested note of the meeting where the claimant’s trade unionist had stated that re-deployment to a higher post would be unfair.

 

          The respondent stated that at no time during this or any of the other meetings at which re-deployment was discussed did the claimant ask for her old job back.

 

          The Tribunal preferred the respondent’s evidence in relation to the claimant’s failure to give proper consideration to suitable alternative re-deployment.  The Tribunal found that the claimant did not ask for her old job back and that she wanted the respondent to re-deploy her to a higher post to take account of her law degree.

 

          At the meeting on 8 October 2009 the claimant’s union representative asked if there were any possible redundancy packages that might be available to the claimant.  This was in the context of the RPA where the Trust had a number of redundancy packages available to offer staff in the changing environment.

 

          Redeployment meeting, 15 October 2009

 

          Another meeting took place on the 15 October 2009.  The claimant rejected further vacancies that had been forwarded to her in the interim.  She advised the respondent that she had applied for a post in Litigation and had been unsuccessful.  The claimant stated that this failure was down to her previous experiences with the Trust and her now tarnished reputation.

 

          The claimant was assured that applications for posts were considered on content and merit only and that no information re previous experience with the Trust would have been taken into account.

 

          Redeployment meeting 19 November 2009, 12 weeks’ interim period to facilitate Claimant’s own attempts at redeployment

 

          Prior to the next meeting on the 19 November 2009 the respondent forwarded to the claimant an estimate of her possible redundancy and a list of suitable alternative posts.

 

          At this meeting the claimant requested a period of time to allow her to apply for posts, both internal and external and stated that if she failed to secure work in that interim she would accept a Band 2 position within the Trust.

 

          The respondent acceded to the claimant’s request for a period of time and agreed to give her a period of 12 weeks to apply for posts at the end of which she would have acquired a new post, accepted a Band 2 post or accepted redundancy.

 

          Redeployment Meeting March 2010

 

          In the event the next meeting did not take place long after the 12 week period and it took place in March 2010.  At this meeting the claimant advised Mr O’Toole that she had not gained employment and had not accepted any of the Band 2 posts on offer.  Mr O’Toole told the claimant that he would be referring the matter up to Ms Jennifer Buchanan, the Assistant Director.

 

          Rejection of redundancy offer/“counter –offer”

 

          On 4 March 2010 the claimant wrote to Ms Margaret Moorhead and complained of the treatment she had received over the previous four years.  The claimant set out a number of difficulties she had faced when trying to apply for internal posts during the period of time she had been given to do so.  The claimant also made reference to the fact that she now had a law degree which made her both flexible and diverse in securing re-deployment.

 

          The claimant alleged that there was clearly a vendetta against her and set out the terms on which she would leave.  These were the redundancy package on offer, holidays accrued to date, compensation in lieu of contributions paid to superannuation and an additional equivalent one year’s salary.

 

          The respondent treated this letter as a grievance.  They did not make any response to the claimant’s comments about redundancy.

 

          For her part the claimant contended that this letter evidenced her acceptance of the respondent’s offer of redundancy.

 

          The Tribunal found that this letter did not amount to an acceptance of the respondent’s offer of redundancy.  All this established was that the claimant had responded to the respondent’s offer of redundancy.  At best it could be construed as a counter offer but the Tribunal found that it amounted to a repudiation of the respondent’s offer.

 

          The Tribunal also found that the claimant’s continued insistence at this hearing, in light of this letter, that she had accepted the respondent’s offer of redundancy, was disingenuous and obstructive.

 

          Mrs Moorehead forwarded this letter of complaint to Mrs Jennifer Buchanan, who instructed her staff to form a panel to investigate the claimant’s grievance.  The claimant was invited to attend a grievance meeting on 3 June 2010 but she neither acknowledged the letter of invitation nor attended the meeting.

 

          The respondent wrote to the claimant and asked her if she wished to have the grievance meeting rescheduled.  The claimant did not respond to this letter and the respondent took no further action in relation to the grievance.

 

          The claimant stated that she had made a number of attempts to speak to the respondent to advise them that she had not wished to take a grievance and that she had eventually spoken to Mrs Jennifer Buchanan on this.  The claimant stated that Mrs Buchanan had been condescending and threatening towards her during this telephone call.

 

          Mrs Buchanan stated that she did not recall having had a telephone call with the claimant and completely refuted the suggestions that she had been condescending or threatening towards the claimant.

 

Letter offering redeployment posts, August 2010

 

On 4 August 2010 Mrs Buchanan wrote to the claimant and enclosed a list of all available Band 2 positions within the Trust and attached a job description in relation to each specific post.  Mrs Buchanan asked the claimant to confirm in writing by 20 August 2010 which post she would accept.

 

Mrs Buchanan’s letter also advised the claimant that the position whereby the claimant had remained at home on full-pay could not continue and the claimant would be expected to co-operate in her return to work.

 

First notice of possible disciplinary action, August 2010

 

Mrs Buchanan’s letter also advised the claimant that if the claimant had not responded by 20 August 2010 in writing detailing her chosen post or if she responded with a decision declining all posts that this would have serious implications for her and the respondent would have to consider all options open to it, including potential disciplinary action.

 

The claimant failed to write to Mrs Buchanan before the 20 August 2010.  On 20 August 2010 she contacted Mrs Buchanan by telephone.  There was considerable dispute between the parties as to the content of this telephone call.  Mrs Buchanan stated that the claimant had telephoned her to say that none of the posts sent to her had been suitable.

 

The claimant’s witness statement was silent on the subject of this telephone call.  However, at this hearing, the claimant stated that she had rung Mrs Buchanan to ask her for the job descriptions in relation to the posts in question.  Mrs Buchanan refuted that the claimant had raised the issue of job descriptions and stated that if this had been raised she would have re-sent the job descriptions immediately.

 

At this hearing, the claimant’s evidence in relation to this telephone call was contradictory.  At first she stated that no job descriptions had been attached to Mrs Buchanan’s letter of 4 August and that this was why she had telephoned Mrs Buchanan on 20 August.  Then she stated that Mrs Buchanan had never wanted to engage with her in relation to alternative work.  Then she stated that she had not known at the time to ask for job descriptions.

 

The Tribunal warned the claimant at this point that her evidence was contradictory and that the Tribunal would take this into account in its overall assessment of the claimant’s evidence.

 

The Tribunal found that the claimant had contacted Mrs Buchanan on 20 August 2010 specifically and only to advise her that none of the alternative posts was suitable to her.  The Tribunal accepted Mrs Buchanan’s account of the telephone call and concluded that the claimant did not raise any issue of job descriptions.

 

The Tribunal concluded that the claimant’s evidence was contradictory and mendacious.

 

Second notice of possible disciplinary action

 

Mrs Buchanan next wrote to the claimant on 14 September 2010, she referenced a telephone call with the claimant on 20 August confirming that the claimant had advised that none of the alternative posts was suitable to her.

 

Mrs Buchanan expressed her disappointment at this and invited the claimant to attend a meeting on 28 September 2010 to resolve the situation and to facilitate a return to work. 

 

Mrs Buchanan reminded the claimant of her right to be accompanied and added that her continued failure to consider suitable alternative positions would leave the respondent with no option but to consider terminating her contract.

 

On 27 September 2010, the claimant telephoned Mrs Buchanan.  The claimant advised Mrs Buchanan that her Trade Union representative was not available for the following day’s meeting.  During the conversation the claimant advised Mrs Buchanan of a number of hospital appointments she was committed to attend.

 

In light of this Mrs Buchanan agreed to reschedule the meeting to a date to suit the claimant’s Trade Union representative.

Attendance at Occupational Health

 

The claimant contended that there followed a period of time whereby the respondent made numerous attempts to refer her to Occupational Health in order to sack her.

 

Mrs Buchanan had noted the claimant’s reference to numerous hospital visits and invited her to attend Occupational Health on 12 October 2010 to assess her fitness to work.

 

However, the claimant failed to attend that appointment, stating that the letter of appointment had come after the date of appointment.  She cancelled a further appointment made for her for 26 October 2010.

 

On 28 October 2010 Mrs Buchanan wrote again to the claimant advising her that a new appointment had been made for her (Tuesday 2 November 2010) and reminded the claimant of her contractual obligation to attend Occupational Health when requested to do so.

 

The claimant attended Occupational Health on 24 January 2011.  The Occupational Health report made reference to the difficulties there had been in dealing with the claimant.  The claimant had made an issue about signing her consent form, refusing to allow them to explain the consent form procedure and refusing to allow them to explain the reason for her referral.

 

The Occupational Health Report indicated that the claimant had refused to discuss her referral any further and that in absence of being able to update the claimant’s medical history, Occupational Health could not assess her fitness for work.  In the event the claimant deemed herself to be fit for work.

 

The Tribunal saw notes of the claimant’s communications with and attendance at Occupational Health on 18/19 and 24 January 2011 detailing the claimant’s behaviour towards staff on each occasion which was summarised as loud and aggressive, confrontational and challenging, scathing and upsetting.  The behaviour was also described as “puzzling”.

 

The notes recorded exchanges the claimant had had with staff and that at the end of a serious of fraught conversations the claimant added the comment “you have all been very good.  I hope you don’t think I was having a go at you”.

 

The Tribunal noted that these notes were not attached to a witness statement so that it fell to the Tribunal to decide what weight to give them.

 

The Tribunal also noted that the claimant did not refute her behaviour on these occasions but rather sought to defend it by reference to circumstances that had caused her some frustrations. 

 

In light of this the Tribunal found that the claimant had behaved at Occupational Health in the manner as described by the notes and the report.

 

Redeployment posts offered, February 2011

 

The respondent wrote again to the claimant on 11 February 2011.  This letter noted that the claimant had deemed herself fit to return to work and enclosed two Band 2 posts available in the Trust.  The claimant was asked to confirm in writing by Monday 21 February 2011 which post she would accept.

 

Mrs Buchanan wrote again on 24 February 2011 in the absence of the claimant’s reply to her by 21 February 2011.  This letter requested the claimant to meet Mr Martin O’Toole and herself on 10 March 2011 to discuss the two available roles, to enable the claimant to confirm which of the posts she would accept.

 

Third notice of possible disciplinary action

 

Mrs Buchanan’s letter added that she was extremely disappointed that despite protracted efforts by the Trust to facilitate her return to work, there was a consistent and repeated failure by the claimant to accept available positions within the Trust.  Mrs Buchanan advised the claimant that her failure to attend this meeting or to accept one of the available posts on offer, would give the respondent no alternative but to invoke the Disciplinary Procedure against her.

 

Invitation to meeting to discuss termination of employment

 

The claimant did not attend the meeting on 10 March 2011 and did not contact the respondent to advise or provide any explanation for her non attendance.  Mrs Buchanan wrote to the claimant again.  This letter canvassed all issues that had occurred since the Investigation Report of 2009 detailing numerous attempts that had been made by the respondent to re-deploy the claimant into suitable alternative posts and recorded her failure to accept any of these.

 

The letter went on to invite the claimant to a meeting on 24 June 2011 with Mrs James Livingstone, Assistant Director and Mrs Noeleen McCreaner, Assistant Director, to consider the potential termination of her employment.

 

The claimant contacted Mrs Buchanan on 21 June 2011 and confirmed that she had a hospital appointment on 24 June and additionally that her Trade Union representative had resigned his post and that she would have to update another representative with the details of her case.  Mrs Buchanan confirmed that the meeting would be rescheduled and advised that she would notify the claimant of the next date in due course.

 

On 26 August 2011, Mrs Buchanan wrote to the claimant and advised her that the meeting would take place on 6 September 2011.  On 2 September 2011 the claimant wrote to advise that she had received Mrs Buchanan’s letter on 30 August and the accordingly there was insufficient time for her to prepare her case.

 

The claimant also advised she had difficulty securing Trade Union representation.  She indicated that a trade union representative, Ms Maureen Thompson, could attend the day of the case but could afford her no preparation time.

 

Mrs Buchanan advised the claimant that the meeting would go ahead on 6 September as planned.  This was on the basis that the claimant had previously been advised that the meeting would discuss possible termination of her contract and that Mrs Buchanan’s letter of June 2011 fully set out the issues to be discussed at the meeting, giving the claimant enough time to prepare and enough time to organise Trade Union representation.

 

Meeting on 6 September 2011, Termination of Contract

 

This meeting did take place on 6 September 2011.  It was chaired by Mr James Livingstone, who was accompanied by Mrs Noeleen McCreanor.  Mr O’Toole was the respondent’s Presenting Officer.  There was considerable divergence in the accounts of this meeting between the respondent’s witnesses and the claimant.

 

The claimant contended that the respondent had deliberately sent away her Trade Union representative and had conducted the meeting in the manner of an interrogation.  She claimed Mrs McCreanor had called her a liar when the claimant advised her that she had not spoken to her trade union representative.  She also stated that Mr O’Toole presented the facts to the panel from a document she had not seen prior to the meeting.

 

The claimant stated that the meeting had been staged and that every time she went to speak she was told to shut up.  She claimed there were not breaks during this meeting save for 30 minutes at lunchtime and no drinks were provided.

 

All three respondent witnesses at the meeting stated that the claimant had behaved very badly throughout.  The claimed that the claimant was rude and aggressive and continually spoke over everyone.

 

They also contended the claimant had arrived late and had demanded a car parking space.  This request was facilitated even though the claimant had been aware of proper parking facilities within the hospital prior to the meeting.

 

Before the meeting began, Mrs O’Toole had met the claimant’s Trade Union representative, Ms Thompson, who had been awaiting the claimant’s arrival.  Ms Thompson told Mr O’Toole that the claimant had told her she had not wanted Mrs Thompson to represent her.  Mr O’Toole suggested that in view of this perhaps Ms Thompson should return to her office.

 

However, Ms McCreanor accepted that she had been under the misapprehension that the claimant and Ms Thompson had previously met.  She refuted the suggestion that she had called the claimant a liar.  When Mr Livingstone appreciated that the claimant had not spoken to Ms Thompson, he directed Mr O’Toole to secure Ms Thompson’s attendance and adjourned the meeting to allow Ms Thompson to speak to the claimant.

 

Mr O’Toole returned with Ms Thompson and witnessed a conversation between Ms Thompson and the claimant.  The claimant spoke rudely and directly to Ms Thompson and told her that she did not want her to represent her as she did not know any of the details of her case.  The claimant told Ms Thompson she could remain at the meeting or leave; it was a matter for her. 

 

Mr O’Toole had collated into one file all notes of previous meetings, all previous offers of redeployment and notes of the times the claimant had failed to attend previously arranged meetings.  Mr O’Toole presented the claimant with a copy of this file at the hearing.  However this file contained only documents that had been previously given to the claimant.

 

Mrs Livingstone stated that he had had to ask the claimant to remain quiet on several occasions during Mr O’Toole’s presentation.  He stated that on a number of occasions and with increasing force he had to tell the claimant to remain quiet to allow Mr O’Toole to complete his opening statement.  He refuted telling the claimant to shut up.  Mr Livingstone advised that the claimant took exception to his attempts to control the meeting and accused him of being a bully.  At this point Mr Livingstone responded to the claimant by saying there was only one bully in the room and it was not him.

 

Mr Livingstone expressed his frustration that in all of his 39 years of hearing many disciplinary grievances he had never experienced a situation such as that day.  However, he also accepted that this comment was not in best keeping with his responsibilities and regretted this comment.  His regret was upheld by the Appeal Panel and the respondent offered an apology to the claimant.

 

The meeting concluded prior to lunchtime.  The Panel considered the matter and held that the case against the claimant had been proven and recommended her dismissal.

 

The Appeal and Grievance

 

By letter dated 26 October 2011 the claimant appealed the decision to terminate her contract on the basis that she had been fit to return to work since July 2007 and had been pleading with the respondent to find her a suitable alternative position since; that she had requested the meeting on 6 September to be adjourned in the absence of proper representation for herself and that both panel members at the meeting had constantly told her to shut up and had bullied her throughout the meeting and that Ms McCreanor had called her a liar.

 

The respondent arranged an appeal hearing for 21 December 2011.  They advised the claimant that the Panel would also address the complaints she had made in her appeal letter about the conduct of the meeting on 6 September 2011.

 

On 21 December 2011 the claimant contacted the respondent and stated that she could not attend the scheduled meeting due to a family bereavement.

 

By letter dated 9 February 2012 the claimant was invited to an appeal/grievance hearing on 8 March 2012.  The appeal panel was Mr Seamus McGoran and Ms Sarah Browne.  Mr McGoran chaired the meeting.  Mr McGoran tried to open the meeting by outlining that the panel would hear the claimant's appeal against the decision to terminate her contract and thereafter hear her grievance against the way in which the meeting was handled.

 

However, the meeting was very difficult from the outset with the claimant constantly interrupting Mr McGoran and challenging his right to chair the meeting.  It took some time before Mr McGoran could outline the format of the meeting and at one point he suggested that if the claimant did not calm down and listen, that the panel would have no option but to hear the appeal and the grievance in her absence.

 

The appeal hearing was heard first.  The claimant was given an opportunity to state the grounds of her appeal.  Mr Martin O’Toole presented the respondent’s case.

 

In the afternoon and at the conclusion of the appeal hearing, the panel heard the claimant’s grievance against Mrs McCreanor, Mr O’Toole and Mr Livingstone in respect of the conduct of the meeting of 6 September 2011.

 

By letter dated 23 April 2012 the respondent advised the claimant that, having considered all the evidence before them, the appeal panel had decided that the original decision to terminate her employment was appropriate on the basis that she had refused to accept a number of suitable posts, that they considered her decision to refuse suitable posts unreasonable and unacceptable, that she had failed to
co-operate with the respondent to attend meetings and discuss a number of options concerning her future, and in particular, she had failed to engage with the respondent to attend a planned meeting on 10 March 2011 having been told that her employment was at risk and by failing to co-operate with the respondent’s instructions in respect of her obligations as an employee by not complying with her duties as an employee.

 

In the same letter, the claimant was advised that the respondent had not upheld her grievance in respect of any of the three respondent’s Officers.

 

Accordingly, the appeal panel upheld the decision to terminate the claimant’s employment.

 

 

THE LAW

 

Unfair Dismissal

 

         

6.       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.

 

          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.

 

          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.

 

          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.

 

          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.

 

          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

 

7.       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.

 

          It is case law that gives the Tribunal guidance on the way in which it should carry out its 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.

 

          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 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.

 

          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.

 

Tribunal’s Conclusions

 

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

 

          The Tribunal noted that throughout the entire process from the origins of this case in 2005 up to and including the last meeting attended by the claimant on 8 March 2012 all of the respondent’s witnesses testified to the claimant’s rude aggressive and challenging manner.  The evidence was overwhelmingly to the effect that the claimant repeatedly talked across people, contradicted them and refused to listen.

 

          The Tribunal found that this evidence was entirely consistent with the claimant’s demeanour and behaviour during this hearing.  The Tribunal had several times to ask the claimant not to interrupt Mr O’Reilly and not to talk over him.

 

          The Tribunal gave the claimant consideration for being an unrepresented litigant and made allowance for the difficult task she had in presenting her own case.  However, the claimant’s manner was not always consistent with someone under stress or in confusion with the Tribunal process but rather was at times plain rude and disruptive.

 

          The Tribunal also noted that the claimant’s propensity for obtuseness and noted that the claimant’s grasp on her own version of events faltered when confronted with the weight of the respondent’s evidence.  This was to the extent that the claimant varied her evidence in the face of incontrovertible truth.

 

          The Tribunal noted that this had been an extremely long drawn out process in the respondent’s dealings with the claimant in their attempts to re-deploy her.  This was between her period of sick absence, after Comber, in July 2007, and their first serious attempts to redeploy her thereafter, in March 2011.

 

          The Tribunal took into account the upheaval in work caused by RPA and noted the difficulty the claimant herself presented in constantly rescheduling meetings.  However the Tribunal still found the delay astonishing.

 

          However, it was also clear to the Tribunal that from at least that first serious attempt to redeploy her in March 2011 until the termination of her contract in 2012 the claimant consistently failed properly to engage with the respondent to secure redeployment and unreasonably refused suitable alternative posts.

 

          The Tribunal noted that the claimant was advised as early as March 2011 that her failure to accept a suitable alternative post could possibly lead to disciplinary action being taken against her.  Not only did the claimant take no heed of this but she neither attended that meeting nor did she advise anyone that she would not be attending.

 

          At first the Tribunal considered the respondent’s decision to conduct an appeal hearing and follow this with a grievance hearing to be inconsistent with good practice but on reflection found that this would not amount to a procedural anomaly amounting to unfairness on the basis that it is at least possible that someone could lose an appeal against termination of contract and at the same time have a grievance upheld but that the latter would not affect the former.

 

          Accordingly the Tribunal concluded that the claimant’s termination of contract was substantively and procedurally fair and the claimant’s claim fails.

 

 

 

 

 

 

 

Chairman:

 

Date and place of hearing:       3-7 December 2012, Belfast.

 

Date decision recorded in register and issued to parties: