Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 2098_12IT, [2013] NIIT 02098_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2098/12

CLAIMANT: Sean Hannon

RESPONDENT: Camden Group Limited

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed and it dismisses the claimant’s claim of unfair dismissal.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Mr P Laughlin

Mr S Kearney

Appearances:

The claimant was self-represented.

The respondent was represented by Ms Lisa Bryson, Solicitor of Carson McDowell Solicitors.

1. The claimant complained in his claim that he was unfairly dismissed by reason of an allegation of misconduct that he had used his mobile phone on the factory floor contrary to company regulations which he denied. The claimant complained that the allegation was false and motivated by reason of previous grievance complaints he had made of harassment against his supervisor, none of which were fully investigated; that numerous complaints had been made against his supervisor within the organisation; that his supervisor was the only witness to the alleged conduct and in the months leading up to dismissal she had constantly made unfounded complaints against him; that the respondent did not want to check his phone in spite of an earlier request to do so and claimed its cameras were broken.

2. The respondent resisted the claimant’s claim and asserted that it had fairly dismissed the claimant by reason of conduct in breach of working rules in relation to the use of mobile phones after following a fair procedure and the prior issue of a general final written warning on 8 May 2012 which was ‘live’ at the point of dismissal. The respondent contended that it considered it would not be able to verify whether or not the phone was used at the time in question from checking the claimant’s phone; that its CCTV system had been inoperable for a number of years, that grievance complaints of harassment made in 2008 and 2012 by the claimant against his supervisor were fully investigated, no evidence of harassment was found, the claimant was informed of the outcome and right of appeal on both occasions but did not appeal.

3. It was confirmed at the outset by parties that the claimant was employed by and the correct title for the respondent is Camden Group Limited, the title of the respondent is accordingly amended from Camden Group to Camden Group Limited.

ISSUES

4. In determining the question whether the claimant was unfairly dismissed by the respondent the following issues were before the tribunal:-

(i) Has the respondent shown the reason for dismissal?

(ii) Was it for a reason relating to the conduct of the claimant?

(iii) Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal? That is:-

· Did the respondent have a reasonable suspicion amounting to a belief in the misconduct of the claimant and reasonable grounds upon which to sustain the belief?

· Did the respondent carry out as much investigation into the matter as was reasonable in all the circumstances?

· Was the misconduct in question a sufficient reason for dismissing the employee?

EVIDENCE

5. The tribunal considered the claim, response, agreed bundle of documentation, heard oral evidence from Mr Robin Service the respondent’s production manager, Mr Peter Bell formerly the respondent’s production manager now purchasing manager, the claimant and Mr Kamil Kopec a fellow employee of the respondent.

FINDINGS OF FACT

6. The respondent is one of the largest makers of PVC windows and doors for trade customers in Ireland and Britain and has three factories. The day to day running of ‘factory three’ is undertaken by Ms Louise Carlton, employed by the respondent as a supervisor. Ms Carlton reports to Mr Service.

7. The claimant was employed by the respondent as a factory operative between 20 November 2000 and 24 July 2012.

8. Under paragraph 10 of the respondent’s working rules the use of mobile phones during working hours is not allowed and it states that, ‘unauthorised use of a personal mobile phone during working hours will lead to action being taken under the Disciplinary and Dismissal Procedure, which could include dismissal’. The claimant was aware of this rule.

9. The respondent’s disciplinary and dismissal procedure is set out at paragraph 18 of the respondent’s working rules and states, ‘Before considering a warning or dismissal, steps will be taken by the Company to establish and encourage improvement.’ Also, ‘you will only be issued with a disciplinary warning or dismissed following a formal disciplinary meeting at which you have been given the right to be accompanied by a fellow employee or accredited trade union official.’

10. Following an incident on 21 March 2012 reported by Ms Carlton the claimant was required by the respondent to attend a disciplinary hearing on 22 March 2012 regarding his conduct and behaviour on 21 March 2012 in refusing to cut the rubber end off the bead on a frame, this hearing was however subsequently postponed.

11. On 26 March 2012 the claimant by letter to the respondent raised a grievance about the incident on 21 March 2012 in respect of which he stated that Ms Carlton said he and his colleague were going to get a warning relating to the removal of a bead which had to be snipped off, whereas his colleague had the ‘snips’ which were to be used to remove this bead and that it was the job of the ‘saw man’ to snip the rubber, and he stated, ‘Louise is trying to get me another warning’ and that he felt as though , ‘Louise has it in for me.’

12. Investigations into the claimant’s grievance were carried out by Ms Irene Wilson, the respondent’s production manager. Following a grievance meeting on 12 April 2012 at which the claimant was accompanied and at which issues relating to the claimant’s grievance that he had been treated less favourably by his supervisor were discussed, Ms Wilson set out her conclusion to the claimant in a letter dated 26 April 2012 that from investigatory meetings held she could not find evidence that the claimant had been treated less favourably than any other employee by his supervisor and for this reason was unable to uphold his grievance. The claimant was advised of his right to appeal but did not exercise it.

13. Following a disciplinary meeting conducted by Mr Alan Barron the respondent’s HR Manager on 1 May 2012 and re-convened on 8 May 2012 at which the claimant was accompanied by Mr Kopec, the respondent issued the claimant a general final written warning for the claimant’s conduct and behaviour in relation to four matters:-

· Refusing to cut the excess rubber off the end of the bead.

· His behaviour towards his team leader and supervisor.

· Time and attendance.

· Refusal to work back flexi time in conjunction with previous arrangements made with his production manager.

The claimant was advised of and exercised his right of appeal but following investigation and an appeal meeting held by Mr Service, at which the claimant was accompanied, Mr Service upheld the general final written warning issued to the claimant.

14. Following a report to HR by Ms Carlton the claimant was required by the respondent to attend a disciplinary hearing on 22 June 2012 conducted by Mr Service regarding refusal to carry out a reasonable request for refusing to work back flexi hours when requested on three separate occasions. Following the meeting at which the claimant was accompanied Mr Service confirmed his decision that no further action would be taken and agreement was reached that the claimant would work back ten hours flexi time which he owed over the following two weeks.

15. On Monday, 16 July 2012, Ms Carlton informed Mr Service that morning while in her office which has an elevated view over the production factory that she had witnessed the claimant texting on his mobile phone.

16. The claimant was required by letter dated 17 July 2012 to attend a disciplinary hearing on 19 July 2012 which was conducted by Mr Service accompanied by Ms Elaine Foster, regarding the use of his mobile phone on the factory floor on 16 July 2012. The claimant was accompanied at the hearing by Mr Kevin Hannon. Minutes of the disciplinary meetings were agreed at hearing and are accepted as accurate. At the disciplinary hearing on 19 July 2012 the claimant was informed that as he was already on a final written warning that the outcome of this matter could lead to his dismissal. It was put to the claimant that Ms Carlton saw him using his phone to which he responded that Ms Dunlop asked, ‘me was I using my phone, and I told her I didn’t know what she was talking about. From 7.10 to 9.30 I was at [the] sash line, that’s where Jacqui came to me. I have witnesses to say that my phone was at beading when I was at [the] sash line, Carol McClenaghan and Dean Armstrong…. I feel victimised by Louise, she is trying to get me sacked’. The claimant raised that Mr Armstrong was treated differently when caught using his phone. Mr Service arranged to speak to relevant witnesses and adjourned the hearing and informed the claimant that he would get back to him. Just before concluding the meeting Mr Service asked the claimant, ‘have you anything against me getting IT to check your phone …’ the claimant replied, ‘no problem’.

17. On 19 July 2012 Ms McClenaghan informed Mr Service that the claimant, ‘was on [the] sash line, I came to [the] frame line and I saw his phone at beading, I went and said to Dean,’ but later approached Mr Service to correct her earlier statement and informed him, ‘On Wed[nesday] morning Sean ask[ed] me did I see his phone at beading the day before and I said yes. So it was actually Tues[day] that I saw his phone on the beading section. I don’t know anything about the phone on Monday. It was definitely Tues[day] that I spoke to Dean about the phone.’ Mr Armstrong initially told Mr Service, ‘ I was working away and he [the claimant] was away about 5 mins when Carol McClenaghan came over to me and said is Sean away to [the] sash line ‘cause his phone is over there at beading. It was around 10am. I did think it strange that he left it’ but subsequently informed Mr Service that it was Tuesday, ‘cause he was over at [the] sash line on Monday really early, not 10am when I saw him. It was definitely Tuesday.’

18. Mr Service spoke with IT to enquire if the claimant’s mobile phone could be checked but they were busy at the time and Mr Service did not pursue this further.

19. The respondent’s factory CCTV cameras were not working on 16 July 2012 having been out of operation for some time.

20. On 23 July 2012 Mr Armstrong was given a general final written warning for using his mobile phone whilst working.

21. The claimant’s adjourned disciplinary meeting was re-convened on 24 July 2012 before Mr Service and Mr Barron. The claimant was accompanied by Mr Kevin Hannon. Mr Service explained that the meeting was adjourned to look at why another employee was not disciplined for a similar offence and to take statements from witnesses who the claimant said could verify his phone was not present. Mr Service advised the claimant that Mr Armstrong who was caught using his mobile phone was not disciplined until 23 July 2012 due to a management family bereavement, also, that witness statements had been taken and both had, ‘changed their evidence from Monday to Tuesday’. Mr Service put to the claimant that Ms Carlton had allegedly witnessed him using his phone, he denied it and asked why she did not come over to speak to him at the time if she had seen him, Mr Barron stated that it was believed she was otherwise busy doing roll calls but had asked Ms Dunlop to speak to him and that when Ms Dunlop arrived he was not using his phone. Mr Service put to the claimant Ms Carlton said she had witnessed him using his phone, to which the claimant asked how the respondent could prove it and Mr Service responded how could the claimant prove that he was not. Mr Barron advised what the panel had to consider was, ‘which story was the more likely, but it could not prove it either way.’ The meeting was briefly adjourned and Mr Service and Mr Barron discussed the matter and Mr Service concluded that the claimant had been using his mobile phone. At hearing Mr Service gave evidence that he could only go by his supervisor who he trusts. Consideration was given to the claimant’s disciplinary record and whilst an employee would not normally be dismissed for using his mobile phone in isolation, because the claimant had a live Final Written Warning Mr Service considered that dismissal was an appropriate sanction in the circumstances. Mr Service was of the opinion that the claimant had a good work ethic and was one of the best beaders they had and that it would not have been in Ms Carlton’s interests to try to have the claimant dismissed. Mr Service considered that any grievances raised by employees were always fully investigated by the respondent and understood that there were no outstanding grievance complaints against Ms Carlton by the claimant. After a five minute adjournment Mr Barron informed the claimant that they had considered the claimant’s two witnesses’ statements and concluded that the claimant had used his phone and was therefore dismissed for misconduct. The claimant was advised of his right of appeal.

22. By letter dated 26 July 2012 to the respondent the claimant confirmed that he would like to appeal the decision made at the disciplinary hearing.

23. In a letter dated 3 August 2012 to the claimant the respondent set out the outcome of the reconvened disciplinary hearing on 24 July 2012 and the claimant’s right of appeal.

24. Prior to the appeal hearing Mr Bell reviewed notes relating to the disciplinary process leading up to the claimant’s dismissal. An appeal hearing took place on 9 August 2012 conducted by Mr Bell accompanied by Ms O’Donnell; the claimant was accompanied by Mr Kevin Hannon. The appeal minutes were agreed and are accepted as accurate. The claimant put to Mr Bell that he was not on his phone, that Mr Service asked to see his phone as IT could check if he was using it but did not come back and ask him for it, that Ms Carlton did not like him and wanted him sacked, that she did not say to him that he was on the phone, that Ms Dunlop did, that he was moved to the sash line at 7.10 am and then spoken to by Ms Dunlop at 8.15 am and asked was he on his phone. The claimant confirmed that he was working on the sash line with Ms Ana Taylor and Ms Ewa Nagradia. Mr Bell concluded the meeting and confirmed that he needed to speak to a few people and would come back to the claimant by letter.

25. Mr Bell interviewed Ms Carlton who confirmed to Mr Bell that she had seen the claimant before Ms Dunlop came in at 8.00 am texting on his mobile phone from her office window, that when he saw her looking at him he put it away and that she did not speak to him because by the time she would have done so he would have had the phone away, that Ms Dunlop was going onto the floor anyway so she spoke to him and that she tries not to speak to him on her own as, ‘ He does not have as much of [a] problem with JD as he does with me.’ Ms Carlton confirmed to Mr Bell when asked what she would do normally if she saw someone using their phone, that she would, ‘put them up for disciplinary’ and that she ,’ Had Dean up recently.’

26. Ms Dunlop when interviewed by Mr Bell confirmed that when she came in that day Ms Carlton, ‘told me she caught SH on mobile phone. She has a clear vision of where he was standing. He was on the beading on sash line. So from F3 [factory 3] office can see right down’ and at 8.05 am, ‘I asked him were you on phone. He said no’.

27. Mr Bell wrote to the claimant on 14 August 2012 confirming that some investigatory meetings were still to take place due to sick and holiday absences and that he hoped that following these meetings he would be able to conclude the appeal as soon as possible.

28. On 22 August 2012 Mr Bell interviewed Ms Taylor, she stated when asked if she saw him using the phone that day, ‘He could have been using it that day but when I was working away I didn’t see him. I wasn’t watching him or keep[ing] tabs on him. Wasn’t using the phone to my knowledge but he could have been.’

29. On 23 August 2012 Ms Nagradia was interviewed by Mr Bell and confirmed that at the time she was cutting the bead and had her back to the claimant, Mr Bell asked if the claimant was taking the bead from her, was there a build-up of work to which she replied, ‘He helped me only one hour. Don’t have time to look too much work there.’

30. Mr Bell investigated where Ms Carlton had allegedly seen the claimant from in her office and concluded that she could look over the sash line and see people from there as she was at a height and the lighting was good enough.

31. Mr Bell upon consideration of all the evidence concluded:-

· That that the witnesses approached could not confirm whether or not the claimant had been using his phone.

· Ms Carlton is a supervisor in the group and a trusted member of staff with sixty staff and four team leaders answerable to her.

· Ms Carlton is responsible for telling people how to do their job and that is never taken well.

· That whilst the claimant mentioned in the initial meeting with him that he had a number of grievances he did not say what these were.

· That HR had in response to an enquiry by him confirmed that there were no live grievances outstanding by the claimant.

· That a proper procedure had been followed in relation to the claimant’s grievance that he was subject to less favourable treatment by Ms Carlton and in respect of which it was held there was no case to answer.

· That any evidence on the claimant’s mobile phone would have been deleted by that stage.

The tribunal accept Mr Bell’s evidence that he did not consider taking the claimant’s phone or phone records because he did not think it would tell him anything. The claimant did not at any stage offer his phone records to the respondent. Mr Bell concluded that he believed that Ms Carlton had seen the claimant using his mobile phone and on consideration of the claimant’s conduct record and current general final written warning decided that it was appropriate to uphold the claimant’s dismissal.

32. By letter dated 29 August 2012 Mr Bell confirmed that, ‘After listening carefully to everything you said at the appeal meeting on 9 August 2012, and after carrying out extensive investigations with all witnesses named in this matter, I have concluded that I am unable to overturn the decision made by the original disciplinary panel as no new evidence was presented.’

33. The general final written warning issued to the claimant on 8 May 2012 was given by the respondent in good faith and both Mr Service and Mr Bell considered this to be so.

34. At hearing reference was made by and on behalf of the claimant to a letter submitted to the respondent on behalf of thirteen employees in May 2012 raising multiple grievances against Ms Carlton; no copy of the letter or detail of the actual content was produced at hearing. Ms Bryson confirmed her instructions were that one employee, Ms Pauline Natora was nominated to speak on behalf of the others and to set out the basis of their complaints, that a meeting took place with her on 28 June 2012 at which she was asked to return to the respondent with factual information as to the substance of what the employee’s wanted investigated as the allegations made were ‘woolly’, that a reminder letter was sent on 2 August 2012 and indicated that in the absence of a reply by 10 August 2012 the respondent would assume no further intention to pursue matters and that no further reply had been received. Mr Kopec gave evidence that he was present at the meeting on 28 June 2012 and that Mr Service was to arrange another meeting to allow Ms Natora to prepare as she could not answer all Mr Service’s questions but to his knowledge she had not received a letter to arrange this. The tribunal find that both Mr Service and Mr Bell if aware of the multiple grievances referred to did not consider there to be any connection to or bearing upon the claimant’s case but genuinely believed the claimant had no live grievance complaint against Ms Carlton at the time of the disciplinary and appeal procedure resulting in his dismissal.

THE LAW

35. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

36. Article 130(1) provides that 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 principle reason) for the dismissal, and

(b) that it 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.

37. Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

38. Under Article 130(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.

39. It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods v Jones [1983] ICR17, such that;

1. The starting point should always be the words of Article 130(4).

2. In applying the Article 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 from 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 the 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.

40. In the context of a misconduct case Arnold J in British Home Stores v Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds 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, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

It is not relevant, as we think, that the tribunal would 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 circumstances be a reasonable conclusion”.

41. In Wincanton Group PLC v Stone (formerly known as Joyce) and another UKEAT/0011/12/LA the Employment Appeal Tribunal of England Wales and Scotland set out at paragraph 29 therein, ‘What is in issue in the case of any dismissal alleged to be unfair for which conduct is an accepted reason is whether the employer acted reasonably or unreasonably in treating that reason as the reason for dismissal. The focus required by statute is thus on the employer’s actions and not on the actions of the employee. Hence where an employer has given a warning in good faith, the view of an Employment Tribunal as to whether it the Employment Tribunal would itself have given the warning or whether it should have been given by the employer is beside the point; the employer is entitled to think at the time of dismissal for later misconduct that the warning should have been given, and the employer’s actions in response in that light to any new misconduct must be judged on the basis that the employer is entitled to take that view. Where the employer knows, as the employer generally will, that the warning is the subject of challenge, plainly the employer will wish to consider whether that challenge moderates the employer’s own view of the warning, and it will be right for the tribunal to take that into account in assessing the circumstances.’

APPLICATION OF THE LAW TO THE FACTS FOUND

42. The tribunal is satisfied that the statutory minimum disciplinary and dismissal procedures have been fully complied with by the respondent in respect of the claimant’s dismissal.

43. Ms Bryson submitted that as set out in Wincanton Group PLC, where a subsequent act of misconduct tips the balance and leads to dismissal a tribunal should not re-visit previous warnings given to the employee where the employer gave them in good faith and considered that the warning should be given and the employer’s actions in response must be judged on the basis that the employer is entitled to take that view. The tribunal is persuaded that the live general final written warning issued to the claimant on 8 May 2012 was given by the respondent in good faith and was believed to be so by both Mr Service and Mr Bell and that they were entitled to judge the conduct in light of this.

44. It is not the tribunal’s role to retry the allegation of misconduct against the claimant, nor to consider whether we personally think that dismissal was fair, or to substitute our decision as to what was the correct course for that of the respondent, but to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

45. The burden of proof is on the respondent to establish the reason for the dismissal and that it was for a reason relating to the conduct of the claimant. The tribunal found both Mr Service and Mr Bell credible witnesses and are satisfied that the genuine reason for the claimant’s dismissal by Mr Service and upheld by Mr Bell was misconduct which is a potentially fair reason for dismissal.

46. The tribunal must next decide whether the respondent acted reasonably in treating the conduct as a sufficient reason for the dismissal, that is, whether the dismissal was procedurally fair and within a range of reasonable responses, taking into account all the circumstances including the size and administrative resources of the employer’s undertaking, and equity and substantial merits of the case. In deciding this the tribunal must consider whether the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief, whether the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances when it formed that belief on those grounds, and whether the misconduct in question was a sufficient reason for dismissing the employee.

47. The tribunal accept Mr Service’s unchallenged evidence that the respondent’s CCTV had been out of operation for some time as a result of which there was no CCTV evidence available for consideration by the respondent. The claimant complained that Mr Service whilst initially asking the claimant if he would allow his phone to be looked at did not pursue this further, Mr Service explained it was because he needed to see if it was something that IT were capable of checking but that they were busy, he did not pursue this further. Mr Bell at the appeal stage did not consider that anything could be gained by looking at the phone. The claimant raised at hearing that no request was made for his phone records although he did not volunteer these to the respondent either. Potential witnesses identified by the claimant who might support his account were all interviewed by the respondent but their statements did not assist either way. No grievance complaint by the claimant had been upheld by the respondent prior to this and at the appeal stage Mr Bell checked with HR and was informed the claimant had no live grievance complaints. Both Mr Service and Mr Bell ultimately reached their decisions by balancing the account of Ms Carlton against that of the claimant and both considered Ms Carlton to be a credible witness because she was a supervisor in a position of trust and on balance were persuaded by her evidence. An employer is not expected to investigate and obtain evidence to prove an allegation beyond reasonable doubt, a conclusion on a balance of probabilities will normally be reasonable. The tribunal is persuaded on balance that the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and in the circumstances had reasonable grounds upon which to sustain that belief that Ms Carlton saw the claimant using his mobile phone on the factory floor in breach of working rules based on the evidence of Ms Carlton whom they considered to be a credible witness.

48. The tribunal is satisfied that Mr Service at the conclusion of the disciplinary stage and certainly Mr Bell on conclusion of the appeal stage had formed the belief that the claimant on a balance of probabilities was guilty of the alleged misconduct and that the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances.

49. The tribunal notes in particular that the respondent adjourned the disciplinary meeting and took witness statements from the two witnesses initially identified by the claimant and in particular at the appeal stage that Mr Bell carried out a very thorough review of the case, sought statements from the two workers beside whom the claimant had been working at the time, made further enquiry of Ms Carlton and Ms Dunlop and also checked with HR that there were no live grievance complaints by the claimant and discounted there being any evidence to gain from an examination of the claimant’s phone before reaching his decision on the appeal outcome. The tribunal does not consider a failure to examine the claimant’s phone or phone records renders procedures unfair but is satisfied that the investigation carried out by the respondent was reasonable and the disciplinary and appeal hearings were overall procedurally fair.

50. On consideration of whether the misconduct in question was a sufficient reason for dismissing the employee, in light of the claimant already having a current general final written warning the tribunal is satisfied that applying the objective standards of the hypothetical reasonable employer that the respondent’s decision to dismiss was a sufficient reason for the claimant’s dismissal and in all the circumstances falls within a band of reasonable responses and finds the claimant’s dismissal by the respondent fair.

CONCLUSION

51. It is the tribunal’s unanimous finding that the respondent has shown that the reason for dismissal was misconduct, that the claimant’s dismissal was procedurally fair and that the respondent’s decision to dismiss the claimant fell within a band of reasonable responses which a reasonable employer might have adopted. The respondent in all the circumstances including the size and administrative resources of the respondent’s undertaking acted reasonably, in treating the claimant’s misconduct as a sufficient reason for dismissing the claimant taking into account equity and the substantial merits of the case and the dismissal of the claimant by the respondent is fair under Article 130 of the 1996 Order. The claimant’s claim of unfair dismissal against the respondent is accordingly dismissed.

Chairman:

Date and place of hearing: 12 February 2013, Belfast.

Date decision recorded in register and issued to parties: