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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smith v Charles Hurst Limited [2013] NIIT 00491_13IT (18 September 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/491_13IT.html
Cite as: [2013] NIIT 491_13IT, [2013] NIIT 00491_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 491/13
CLAIMANT: Curtis Smith
RESPONDENT: Charles Hurst Limited
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and the claimant’s claim is therefore dismissed.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mrs S Dornan
Mr H Fox
Appearances:
The claimant was represented by Mr J Anderson, Barrister-at-Law, instructed by TL Murphy & Company, Solicitors.
The respondent was represented by Ms L Toolan, of Engineers Employers’ Federation Northern Ireland.
Reasons
1.1 The claimant presented a claim to the tribunal on 6 March 2013, in which he made a claim of unfair dismissal arising out of his dismissal on 10 December 2012 by the respondent for gross misconduct. The respondent presented a response to the tribunal on 10 April 2013 in which it denied liability for the claimant’s said claim. The claimant, at the commencement of the hearing, confirmed that, if the tribunal found that he had been unfairly dismissed, he was not seeking the remedy of reinstatement and/or re-engagement and was seeking, by way of remedy, compensation only. In view of the tribunal’s decision, as set out above, it was not necessary for the tribunal to further consider the issue of remedy.
1.2 It was not disputed that the claimant was employed by the respondent as a Technician, having commenced employment initially as an Apprentice Technician on or about 4 September 2006 and that his employment was terminated by the respondent on 10 December 2012. The claimant was born on 28 March 1990 and at the date of his dismissal he was earning £1,250.00 gross per month and £1,056.29 net per month.
2.1 The tribunal heard oral evidence given, on behalf of the respondent, by Mr Sean Donnelly, and Mr John Brankin. The claimant also gave oral evidence to the tribunal.
Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with the oral submissions by the representatives of the claimant and the respondent, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s claims.
2.2 The respondent’s health & safety policy and discipline policy and procedure, which are contained in the Employee Handbook for which the claimant, on 12 September 2006, acknowledged receipt, and that he understood that the terms and conditions set out therein formed part of his contract of employment with the respondent, following the commencement of his employment, provided, insofar as relevant and material, as follows:-
“Section 7
Health & Safety
7.1 Introduction
The company recognises the importance of an effective health & safety policy in order to provide a safe and productive environment for all staff. The company’s policy is underpinned by various pieces of legislation designed to secure healthy and safe working conditions and setting certain standards in particular work activities in working environments. Arising from these legislative requirements are the means of maintaining these standards of health & safety at work, by the placing of responsibilities on both the employer and the employee.
In general terms, whilst the employer is bound to ensure that the safest possible working systems and conditions are maintained, every employee must take reasonable care of their own health & safety and of other persons who may be affected by their acts or omissions at work. As regards any duty or requirement imposed by the company, employees must co-operate so far as is necessary to enable that duty or requirement to be performed or complied with. No employee should recklessly or intentionally interfere with anything provided in the interests of health, safety and welfare, eg misuse of fire extinguishers, first aid boxes, emergency exits, etc.
Section 12
Discipline, Policy & Procedure
12.1 Introduction
The purpose of this policy is to ensure staff are aware of the standards of behaviour and conduct expected of them and the procedure for maintaining those standards. We need to have a procedure so that we can set and maintain standards, be consistent within the law and keep bringing about improvements.
All cases must be dealt with individually taking into account all the circumstances. However, this procedure aims to ensure the staff are treated fairly, sensitivity, objectively and consistently.
12.2 Key principles
The procedure has some key principles:
· Staff had the right to be accompanied at formal disciplinary hearings by a peer, work colleague or a trade union representative.
· Staff have one right of appeal at each stage of the process and staff will not be dismissed for a first offence other than in cases of misconduct.
The procedure may be commenced at any stage depending upon the seriousness of the circumstances.
Staff will not be subject to formal disciplinary action without first having had an opportunity to state their case fully.
The procedure will be handled with the minimum of delay.
All parties must maintain confidentiality.
A formal record of the investigation, hearing, notes, any outcome and all related correspondence will be placed on the employee’s file but will be discounted for disciplinary purposes once the warning period has elapsed, provided there is no recurrence.
Disciplinary warnings are accumulative but can also run concurrently depending on the circumstances.
The outcome of any disciplinary hearing must be confirmed to the employee, in writing, as soon as possible after the hearing.
Any issues arising with staff during the probationary period are generally not subject to the disciplinary procedure.
12.7 Investigations
Any allegation of a breach of conduct will be appropriately investigated before a decision is made on whether former disciplinary action should be taken. An employee must be advised when a disciplinary investigation is to take place and that they are requested to co-operate fully with that investigation.
12.8 Disciplinary hearings
Timings of hearings:
Employees should be notified at least 24 hours in advance of the hearing, in writing, since the employee may need to organise representation. Any delays need to be for a valid reason.
Possible outcomes of the hearing:
The severity of any disciplinary action will be dependent upon the nature of the allege misconduct. Previous disciplinary action still current on an employee’s personal file, even if for an unrelated offence, may be taken into account. Disciplinary action is usually cumulative where misconduct and previous disciplinary action held on file has not expired.
If the employee has more than one allegation proved at the hearing disciplinary action might also be cumulative.
Indicative lists of conduct, which may constitute misconduct and gross misconduct, can be found at Appendices 1 and 2 respectively.
Employees should receive written confirmation of the decision of a disciplinary hearing as soon as possible after the hearing.
Disciplinary stages:
First stage – formal verbal warning
If it is not possible or appropriate following supervision, coaching or training to meet expected standards of conduct, the employer will be given a formal verbal warning. Papers relating to the investigation and disciplinary hearing will be held on the employee’s personal file but disregarded for disciplinary purposes after six months provided there is no further recurrence.
Second stage – first written warning
If misconduct is more serious, or if there is further recurrence of misconduct, an employee will be given a first written warning. Papers relating to the investigation and disciplinary hearing will be held on the employee’s file but disregarded for the disciplinary purposes after 12 months provided there is no further recurrence.
Third stage – final written warning
If the misconduct is sufficiently serious to warrant only one written warning but insufficiently serious to justify dismissal, or if previous misconduct fails to improve, a final written warning will be given.
Papers relating to the investigation and disciplinary hearing will be held on file but disregarded for disciplinary purposes after 12 months provided there is no further recurrence.
Fourth stage – dismissal
Dismissal will not be considered for a first offence other than gross misconduct. However dismissal may result from repeated misconduct where previous warnings have already been issued and have not expired, the conduct has not improved. In such cases, an employee will be entitled to notice or pay in lieu of notice.
Gross misconduct
If, following a hearing where there is an allegation of gross misconduct those hearing the allegations are satisfied that gross misconduct has occurred, given due regard for any mitigating circumstances, the result will be summarily dismissal without notice and without payment in lieu of notice. The date of dismissal will be effective from the date the decision to dismiss was made.
NB: When an employee is asked to attend a hearing where dismissal may be the outcome they will be notified in writing of this fact in advance of the hearing.
12.9 Appeals
Right of appeal
Employees have one right of appeal at each stage of the disciplinary process and the decision of the manager hearing the appeal is therefore final.
Grounds for appeal:
Serious procedural error which resulted in significant detriment to the employee.
The decision reached was unfair and unreasonable in the circumstances having regard to the nature of the allegations and any mitigating circumstances.
…
Purpose of appeal hearing:
The purpose of the appeal is not to re-hear the case but to decide if the grounds for the appeal are justified. The manager hearing the appeal has the right to decide whether or not to uphold the appeal, revoke or modify the original decision.
New evidence:
If new evidence has come to light since the disciplinary hearing, an adjournment appeal might be necessary to conduct further investigation. Any such adjournment shall be kept as short as practically possible.
Outcome of appeals:
The outcome of the appeal hearing will be confirmed to the employee in writing as soon as possible after the appeal and all related correspondence placed on their personal file.
…
Appendix 2 – Gross misconduct
The following offences are likely to be considered as gross misconduct and result in summary dismissal of an employee:-
…
· Serious breach of the company’s rules, policies, procedures or instructions.
…
· Fighting or abusive behaviour.
…
· Breaches of safety regulations, endangering oneself or other people including deliberate damage to, neglect of or misappropriation of safety equipment.
…
NB: The examples of possible misconduct and gross misconduct are indicative and neither exhaustive or exclusive. The appropriate level of action cannot be predetermined, as this will vary according to the circumstances … .”
2.3 On 28 November 2012, the claimant was finishing work in the Jaguar Workshop, when there was an incident involving the claimant and AM, a cleaner of vehicles, who was not an employee of the respondent but was employed, on a self-employed basis, by Autokleen, a firm of specialist cleaners, to clean vehicles at the respondent’s premises on foot of a contract between Autokleen and the respondent for the provision of such services. It was not disputed AM, in light of the foregoing, was not subject to the disciplinary policy and procedure of the respondent.
2.4 On 29 November 2012, AM reported to a Jaguar Sales Executive, who was also a first-aider that on 28 November 2012, he had hurt his fingers and upon inspection, it was noted that the middle fingers of his left hand were swollen, he was unable to move them and his hand was shaking. He was advised to seek medical attention as it was suggested his fingers were broken. AM said the claimant had bent his fingers back.
2.5 Following an investigation carried out into the incident by Paul Chesney, Dealer Principal, Jaguar/Aston Martin, a letter dated 6 December 2012 was sent to the claimant, inviting him to a disciplinary hearing on 10 December 2012, which was to be conducted by Sean Donnelly, Land Rover Service Manager, who would be accompanied by a note taker. The claimant was also informed of his right to be accompanied, at the hearing, by a current employee of his choice or a trade union representative.
In the said letter, insofar as relevant and material, the claimant was informed that the allegations to be discussed at the disciplinary hearing were:-
“Gross misconduct
- Breach of safety regulations and endangering oneself or other people.
- Aggressive behaviour
Namely it is alleged that on Wednesday 28th of November 2012 you breached safety regulations by engaging in horseplay with AM (Autokleen) in the Jaguar Workshop and as a result of your aggressive actions he sustained an injury to two fingers.”
After referring to the matters set out in the previous sub-paragraph, the letter sent to the claimant, stated, inter alia:-
“In an investigatory meeting with me on Monday 3rd of December 2012 you said, in summary, that AM was showing you his new phone but when he thought that you were looking at his messages he jumped on your back, putting his legs around you, to try to get his phone back. In order to get him off your back you said you squeezed his fingers. He got down, you gave him his phone and he walked off.
AM has confirmed that he did jump on your back, but stated that he had got off your back and was standing when you bent his left hand back, hurting his fingers. He said that he subsequently attended A&E on the evening of Friday 30th of November 2012 and was informed that one finger was fractured and a bone in the other finger had been chipped.
CL, who was in the vicinity at the time, describes seeing you and A[M] facing each other, with you bending back the fingers of AM’s left hand as he was trying to back away from you. C[L] said he shouted at you to stop what you were doing.
You will recall that on 12th of December 2011 you were issued with a final written warning for each of the following allegations of gross misconduct/ breach of safety regulations, endangering oneself or other people, where you engaged in horseplay with [ND] and as a result he sustained a head injury, and breach of company rules, policies, procedures or instructions, where you failed to report to your line manager or first-aider or another appointed person that an accident had occurred, and that a personal injury had been caused to your colleague.”
The letter concluded as follows:-
“I must make you aware that the above allegations of gross misconduct are amongst those offences that are most liable to result in summary dismissal. Therefore a possible outcome of this hearing is that you could be summarily dismissed. This statement should not be taken as an indication that a decision has already been made. You will be given an opportunity to respond in full to the allegations during the hearing before Sean Donnelly makes the decision on what action to take.”
The tribunal was satisfied the matters, set out in the letter of 6 December 2012, to the claimant were a full and accurate summary of the investigation carried out by Mr Chesney into the above incident, the subject-matter of this disciplinary hearing. In carrying out the investigation, Mr Chesney interviewed AM before interviewing the claimant. He interviewed AM again after his interview with the claimant. He also interviewed CL and, after doing so, re-interviewed both the claimant and AM. The tribunal were particularly impressed by the thoroughness of his investigation and the fact he found it necessary to carry out the number of interviews, as set out above, so he could ensure the full and complete picture, as described to him by each of the interviewees, could be set out in the letter of 6 December 2012.
2.6 Sean Donnelly carried out a disciplinary hearing on 10 December 2012, in which he gave the claimant a full opportunity to respond to the allegations, as set out in the letter of 6 December 2012. Following the conclusion, Mr Donnelly, on 21 December 2012, wrote to the claimant, setting out his detailed findings and the outcome of the disciplinary hearing. After again repeating the matters set out in the letter of 6 December 2012, Mr Donnelly stated the following, insofar as relevant and material:-
“Having explained the allegations to you, I asked you for your response. You replied that you could not say a lot – it was all there.
I asked if you were disputing anything. You said no, but you did not remember CL saying anything to you, and did not remember him being in the workshop. I asked if you were accepting that you grabbed A’s[M] fingers. You told me that it happened so quickly you could not remember. I noted that both A[M] and C[L] said that you were holding onto AM’s fingers as he backed away from you, and asked if you recalled this. You replied that you honestly could not remember. I stated that the workshop was a dangerous environment, without anyone engaging in horseplay and noted that you were in a similar situation this time last year. It was put to you that you must have squeezed AM’s hand hard to break his fingers. You told me you did not realise how hard you squeezed his hand. I asked if you were trying to break A’s[M] fingers. You said no. I asked what you were trying to do. You replied that you were trying to get him off you. I put it to you that you were facing A[M] at the time, holding his fingers and asked again what you were trying to do. You said you weren’t sure.
When I asked how you got on with A[M] you replied brilliant. I asked how you got on with the rest of the guys in the workshop. You said it was like one big family and there were no issues. P[H] concurred with this and told me you did not know your own strength.
You said that you were really really sorry.
I asked if there was anything else you could tell me about this matter. You replied not really, no.
In recapping, I said that you had accepted the allegations put to you. You replied that you were not hiding anything and knew that you were in the wrong.
I asked why you had engaged in these actions. You said you thought it was messing about between you and A[M]. I put it to you that you are ‘messing about’ with N[D] 12 months ago had resulted in you bring issued with a final written warning, and now you were in the same situation again. You said it was stupidity. I put it to you that you could have been dismissed last year for what had happened, and asked if you understood this. You said you did. I said that the company would have expected you to have learned a lesson last year, but it would appear you had not. I asked if that was a fair comment. You agreed.
When you were asked if there was anything else you wanted to say, you told me that you were extremely sorry.
As you had nothing further to say I adjourned the hearing at 10.45 am. We reconvened at 11.01 am with the same parties present.
I explained that, after careful consideration of the facts and what you had said, it was my decision to summarily dismiss you for breaching safety regulations and behaving in an aggressive manner towards AM, whereby you injured two of his fingers.
When deciding on the outcome I considered whether I could provide a disciplinary sanction short of dismissal. However, I felt that as you were already on a final written warning for a similar incident, and that at the disciplinary hearing on 12th of December 2011 your line manager stressed to you that there must be no form of horseplay in the workplace, I did not consider that a sanction short of dismissal was appropriate under the circumstances.
… .”
The claimant was informed of his right of appeal.
2.7 The claimant accepted, in evidence, to the tribunal, that at the disciplinary hearing, as set out in the letter by Mr Donnelly, dated 21 December 2012, he had not, in essence, challenged any of the allegations put to him. Mr Donnelly confirmed, in evidence, that before reaching his conclusion he confirmed with Human Resources that the final written warning remained valid. He also asked Mr Chesney, in the absence of anything put forward by the claimant, if he could suggest any mitigating circumstances for the claimant’s actions; but Mr Chesney was unable to do so. Mr Donnelly said such aggressive behaviour/horseplay by the claimant was a breach of the safety regulations. In his view, given the nature of the equipment in the workshop, it was irrelevant if such behaviour took place when work had closed for the day.
2.8 The tribunal is further satisfied that although Mr Donnelly had concluded that the claimant had breached the safety regulations and had behaved in an aggressive manner towards AM, injuring two of his fingers, that Mr Donnelly would not have dismissed the claimant in the circumstances but for the fact that the claimant was already the subject of a final written warning, which had not expired at the relevant time; and, in this context, he had noted, in particular, the similarities between the incident which the claimant had received a final written warning and the incident on 28 November 2012, the subject-matter of the decision to dismiss the claimant. The tribunal is satisfied that, before deciding to dismiss the claimant, as set out in the letter dated 21 December 2012, Mr Donnelly carefully considered the terms of the final written warning, which was sent to the claimant by letter dated 8 February 2012, in which he had been found guilty of gross misconduct, in that he had breached safety regulations by engaging in horseplay with ND in a workshop and as a result he had sustained a head injury and that he had failed to report to his line manager or first aider or another appointed person that an accident had occurred and that a personal injury had been caused to his colleague. As appears from the said letter, ND struck his head on the workshop floor when the claimant and ND had been fooling around and he had been knocked unconscious for a few seconds. It was pointed that the injury could have had serious, or even fatal, consequences for ND. In the final written warning, attention was drawn to extracts from Section 7 (Health & Safety) of the Employee Handbook, including, in particular, Section 7.1, to which reference has previously been made. It was also noted in the said warning that the claimant had been previously spoken to about horseplay on 20 May 2010 and again on 27 November 2009 when he and another employee had been wrestling and messing about in the workplace and that the claimant was reminded that horseplay was not permitted and was told that should he be found to be engaging in such a manner again then he might be subject to disciplinary action.
The Service Manager, Mr Bittles, in his said warning letter dated 8 February 2012, concluded:-
“ … I explained that, after careful consideration of the facts and what you had said, it was my decision to issue you with a final written warning for each of the allegations of gross misconduct and that these warnings will be valid for disciplinary purposes for 12 months. I also advise that further repetition of either of these offences within the 12 month period could result in further disciplinary action being taken and your job may be at risk. I reminded you that this was a very serious matter. Not only did you colleague sustain an injury, but you failed to report it. I stress that there must be no form of horseplay in the workplace and you must work safely and report any accident or incidents which occur. I asked if you understood this. You confirmed. … .”
2.9 By letter dated 31 December 2012, the claimant appealed the outcome of the disciplinary hearing held on 10 December 2012. By letter dated 11 January 2013, the claimant was invited to attend an appeal hearing on 16 January 2013 to be conducted by John Brankin, the Franchise Director of the respondent. Following the hearing of the appeal on 16 January 2013, Mr Brankin wrote to the claimant on 19 February 2013 when he decided to uphold the original decision to terminate the claimant’s employment. Again the claimant was accompanied by PH at the appeal.
In a careful and detailed letter, Mr Brankin set out the various points of appeal raised by the claimant and his conclusions in relation thereto:-
“Points of appeal
(1) You said you were not the only person involved in this incident and there was another individual, AM, who had not been disciplined and so you felt victimised. You felt that you could have sustained an injury by A’s[M] actions, but this was not investigated.
When reviewing the investigatory documents, it is clear that the events were fully investigated by Paul Chesney with both yourself and AM.
As you may be aware, A[M] is not an employee of Charles Hurst as he works for an external company called Autokleen Limited. I can confirm that Charles Hurst contacted Autokleen and made them aware of this incident and explained that such conduct in the workplace would not be tolerated.
Autokleen have confirmed that they spoke with AM about what had happened, assessed what action to take and cautioned him with regard to his future behaviour.
They have also advised all of their staff who work for Charles Hurst this kind of behaviour is not acceptable nor will it be tolerated.
When considering the above I am satisfied that Charles Hurst have taken the appropriate steps to make Autokleen aware of the incident and ask that they address this matter with their member of staff.
(2) You told me that you believe there are contradictions with the investigatory meetings. Specifically you allege that these included:-
(a) You told me that in his initial statement A[M] forgot to mention that he had jumped on your back, but later admitted it when questioned again.
When consider this I agree A[M] does not mention jumping on your back when first asked by Paul Chesney, however it is clear that A[M] did jump on your back and he admitted this during the subsequent investigation carried out by Paul Chesney and also when I spoke to him.
(b) You said that CL had been unclear in respect of what time the incident took place as C[L] said he thought it was somewhere between 4.30 pm and 5.00 pm and he was not sure if the bell had gone. You told me that you believed it took place after the bell. You said that if C[L] was there he would have looked at the clock to see what time the incident happened and so you were querying whether C[L] was in the workshop at all.
When reviewing the investigatory documents I note that C[L] said that he thought the incident occurred at 4.30 pm, maybe 5.00 pm, but he says that he was not sure what time it was. When considering this I do not find it unreasonable that he was not sure of the time, nor that he would necessarily have looked at the clock. Therefore I do not feel that this suggests he did not witness the incident. I also investigated this matter with C[L] who told me that he did witness it as he said.
(3) You said that CL’s statement has affected the disciplinary outcome. However at no time did yourself or A[M] confirm if CL had been present. You said that if C[L] did not see the whole incident then you felt that his evidence should not be used as he did not see a lot but was putting the blame on you.
I note that AM told Paul Chesney that he thought CL was there. A[M] also told me that he thought C[L] was there and CL had also stated that he witnessed the incident.
When considering this it appears that C[L] was present and that it was relevant to consider what CL saw as he was the only independent witness.
(4) You said that at no time did anyone ask about the relationship between CL and yourself as you did not know if C[L] had something against you. You felt that C[L] may have been just looking after his own job.
In the meeting I asked you if you had an issue with C[L] and you told me that you did not. I also asked you if there was anything specific that gave you reason to believe that C[L] had anything against you, and you told me that there was not. I also investigated this matter with C[L], who told me he had no reason not to be truthful when he confirming what he witnessed.
When considering the evidence I can see no reason to believe that C[L] gave an incorrect or dishonest statement or had cause to do so.
(5) You felt that your alleged aggressive behaviour could be argued to be self defence, namely ‘the defence of oneself when physically attacked’. You felt that AM had instigated this incident.
When considering the evidence, whilst I agree that A[M] should not have jumped on your back, it appears that it started when you would not give A[M] his phone back.
I also noted that A[M] and CL both said that you and A[M] were face to face when you were squeezing his hand. It is also said that A[M] was backing away from you, that he was asking you to stop squeezing, suggesting that you were being aggressive at that time.
In addition, I note that A[M] sustained a chip to his (left) middle finger and his ring finger was fractured and so you must have used excessive force when gripping his hand which caused him a serious injury.
Therefore that whilst I agree that A’s[M] behaviour was not appropriate by jumping on your back, the evidence also suggests that your conduct was not acceptable.
(6) You said that AM only attended hospital two days after the incident therefore you questioned the serious nature of his injury. You said that AM only attend A&E on the strict instruction of the investigating officer, Paul Chesney.
I understand that the incident was on Wednesday 28th of November 2012 and A[M] went to hospital on Friday 30th of November 2012. At the hospital he was told that his (left) middle finger was chipped and his ring finger was fractured and that he should take two weeks off work to allow his fingers to heal properly. When considering this I note that the hospital diagnosed the serious injuries, and I do not accept that any delay in going to hospital makes them any less serious.
(7) You said that your final written warning was due to expire two days after you were dismissed.
When considering this I note that you were still on the final written warning and it had not expired. I also note that your final written warning was for a similar incident where you engaged in horseplay with another colleague who was injured, and as an outcome of that warning you were advised that any similar offences within the 12 month period could result in further disciplinary action being taken and your job being put at risk.
I also note that Sean Connolly did consider whether he could provide a disciplinary sanction short of dismissal, however when reviewing the evidence, and as you were on a final written warning, he did not feel this was appropriate.
(8) You told me that you had been in the company for six years and loved your job. You said that your timekeeping and work had been good.
I acknowledge that your timekeeping and performance had not been in question and this was not the reason for your dismissal.”
2.10 Again the tribunal was impressed by the careful manner in which Mr Brankin in conducted the appeal. After interviewing the claimant, Mr Brankin was fully aware that the claimant had sought to challenge the allegations made against him in contrast to what he had done at the disciplinary hearing before Mr Donnelly, Mr Brankin properly and fairly decided to interview AM and CL for himself; and only after he had done so to reach the conclusions set out in his letter, dated 19 February 2013. He did not seek, in evidence to the tribunal, to avoid the conclusion AM was wrong to initially get on AM’s back to retrieve his phone and was also therefore involved in horseplay which was wrong. By reason of this he was careful to ensure AM’s actions were reported to Autokleen and had ascertained AM had been cautioned with regard to his future behaviour. There was no suggestion AM was the subject of any previous warning from Autokleen.
Mr Brankin was fully aware the previous written warning would shortly expire and there had been no repetition prior to the events, the subject-matter of there proceedings of any similar conduct by the claimant. However the previous waning had resulted from a serious act of misconduct by the claimant and the terms of the warning had been explained to the claimant. In his judgment, horseplay was not acceptable in the workplace, the claimant knew this but yet had decided to become involved in a further act of horseplay during the period of the said warning. In his opinion, given the previous warning and, despite same, the claimant had once more been the subject of similar conduct, he could not risk, in these circumstances, a further repetition by the claimant of similar conduct, if his employment was continued. On the next occasion the injuries sustained might be even more serious. This was a risk he was not prepared to take and, therefore, the sanction of dismissal had to be imposed. The tribunal was satisfied Mr Brankin did so with some regret as he recognised, as did Mr Donnelly, the claimant was a good worker but he felt he had no alternative, in the circumstances, given the previous warning, for the reasons set out above.
2.11 In the letter, Mr Brankin apologised for the delay in finalising his decision, which arose not only from the additional interviews he carried out, as referred to above, but also due to the fact that January/February are a particularly busy time of year in his capacity as Franchise Director for which delay he apologised to the claimant in the letter and during the course of the hearing before the tribunal. Again, similarly to Mr Donnelly, he was satisfied that deciding the dismissal was the appropriate sanction, Mr Brankin noted that the claimant was the subject of an unexpired final written warning for a similar incident and that whilst he did not dispute that the claimant was a good worker, he considered, in the circumstances, he had no alternative but to impose the sanction of dismissal.
3.1 (a) Article 126 of the Employment Rights (Northern Ireland) Order 1996
(‘the 1996 Order’) provides:-
“(1) An employee has the right not to be unfairly dismissed by his employer.”
(b) Article 130 of the 1996 Order provides:-
“(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 (if more than one the principal 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.
(2) The reason falls within this Paragraph if it –
…
(b) relates [tribunal’s emphasis] to the conduct of the employee;
…
(4) Where the employer has fulfilled the requirements of Paragraph (1) the determination of a question whether the dismissal is fair or unfair, (having regard to the reasons 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 as treating it as a sufficient reason for dismissing the employee; and
(c) shall be determined in accordance with equity and the substantive merits of the case.
…
(6) Paragraph (4) is subject to Article 130A … .”
(c) Article 130A of the 1996 Order provides:-
“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissals;
(b) the procedure has not been completed; and
(c) the non-completion of the procedures is wholly or mainly attributable to failure by the employer to comply with these requirements.
(2) Subject to Paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”
3.2 Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’). The 2003 Order and the 2004 Regulations introduce, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal. These provisions came into operation on 3 April 2005. They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.
In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal. There are two alternatives, namely:-
(a) standard dismissal and disciplinary procedures (DDP);or
(b) a modified DDP.
There was no dispute that the latter procedure was never applicable in this matter.
Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follows:-
“Step 1 –
A statement of grounds for action and invitation to meeting –
(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2 – Meeting
(1) Meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) Meeting must not take place unless –
(a) the employer has informed the employee of what the basis was for including in the statement in Paragraph (1) the ground or grounds given in it; and
(b) the employee has had a reasonable opportunity to consider its response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3 – Appeal
(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of its wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting the employer must inform the employee of its final decision.”
(iii) There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-
“Introductory
(11) The following requirements apply to each of the procedures set out above (so far as applicable)
Timetable
(12) Each step and action under the procedure must be taken without unreasonable delay.
Meeting
(13)
(1) Timing and location of meetings must be reasonable.
(2) Meetings must be conducted in a manner which enable both employer and employee to explain their cases.
(3) In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”
(iv) Under Regulation 12 of the 2004 Regulations, it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-
“(1) If either party fails to comply with the requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, … non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.”
(v) Under Regulation 3(1) of the 2004 Regulations, the standard DDP applies when the employer contemplates dismissing or taking relevant disciplinary action against an employee.
(vi) Existing contractual and dismissal procedures remain to the extent that they supplement the statutory DDPs – which are intended to give the employee certain ‘basic’ protections.
It was not disputed the respondent’s disciplinary procedures, as referred to previously, were followed by the respondent and satisfied these statutory requirements and that therefore no issue of automatic unfair dismissal, pursuant to Article 130A of the 1996 Order arose to be determined by the tribunal in this matter (see further Venniri v Autodex Ltd [UKEAT/0436/07]).
4.1 It was not disputed that, in determining the reason for the dismissal, pursuant to Article 130(1)(a) of the 1996 Order, the burden was on the respondent to establish the reason relied upon by it and it was capable of justifying the dismissal. The question of whether it did in fact justify it depended on whether the tribunal was satisfied the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order (see further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 808 and following.)
4.2 In relation to a case where the reason for the dismissal is found to be misconduct, the tribunal, as set out above, then has to determine the dismissal is fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order, referred to previously.
Applying the dicta, which originated in the well-known case of British Home Stores Ltd v Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a tribunal to determine:-
“(i) whether the employer had a genuine belief in the guilt of the employee;
(ii) whether it had reached that belief on reasonable grounds;
(iii) whether this was following a reasonable investigation; and
(iv) whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct.”
It has long been established that in relation to the matters set out in Article 130(4) there is a ‘neutral burden of proof’ (see further DSG Retail Ltd v Mackey [2013] UKEAT/0054/13).
In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, it was made clear the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. Mummery LJ also pointed out in Hitt the reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.
In Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – Browne-Wilkinson J offered the following guidance:-
“ …
(1) the starting point should always be the words of [Section 57(3)] themselves;
(2) in applying the Section the 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;
(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.”
It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision. As Viscount Dilhourne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314:-
“The employer cannot be said to have acted reasonably if he reached his conclusion ‘in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient’.”
In W Weddel & Company Ltd v Tepper [1989] IRLR 96, it was held that:-
“ … [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case ‘gathered further evidence’ or, in the words of Arnold J in the Burchell case, ‘carried out as much investigation into the matter as was reasonable in all the circumstances of the case’. That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances. If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably … .”
The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin v Citybus Ltd [2008] NICA 42 and Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council v McCann [2013] NICA 7 and Gould v Regency Carpet Manufacturing Ltd [2013] NICA 26. In London Ambulance NHS Trust v Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer. In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-
“The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the tribunal 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.”
As Underhill LJ emphasised in Stuart v London City Airport Ltd [2013] EWCA Civ 973 the employer must carry out a sufficient investigation – “that is, such an investigation as fairness required in the circumstances of the case” before reaching its conclusion it had reasonable grounds for its belief, as seen in the Burchell test. He acknowledged that different tribunals could reach different conclusions about the minimum level of investigation by the employer which fairness required in the circumstances but also:-
“ ... two tribunals both conscientiously considering ‘the range of reasonable responses’ ... and trying to avoid illegitimate ‘substitution’, may nevertheless reach different conclusions as to where the limits of the range lie and thus substitution of its own view becomes legitimate ... .”
4.3 In a recent decision in the Court of Appeal in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-
“It is not for ET to conduct a primary fact-finding exercise. It is there to review the employer’s decision. Still less is the ET there to conduct an investigation into the whole of the employee’s employment history … .” (Paragraph 33 of the judgment)
Further, in Turner v East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of the judgement emphasised:-
In those paragraphs of his judgment, referred to by Sir Stephen Sedley, Lord Justice Elias referred, with approval, to the summary of the relevant principles contained in the judgment of Aikens LJ in the case of Orr v Milton Keynes Council [2011] ICR 704, when he stated as regards to the fairness test in Section 98(4) [Article 130(4) of the 1996 Order] as follows (Paragraph 78):-
“ …
(4) In applying that sub-section, the employment tribunal must decide on the reasonableness of the employer’s decision to dismiss for the ‘real reason’. That involves a consideration, at least in misconduct cases, of three aspects of the employer’s conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe the employee was guilty of the misconduct complained or; and thirdly, did the employer have reasonable grounds for that belief. If the answer to each of those questions is ‘yes’, the employment tribunal must then decide on the reasonableness of the response to the employer.
(5) In doing the exercise set out at (4), the employment tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found on the particular employee. If it has, then the employer’s decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as reasonable if it is shown to be perverse.
(6) The employment tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable’ employer might have adopted.
(7) The particular application of (5) and (6) is that an employment tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in the exceptional circumstances.
(8) An employment tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.”
Further, Lord Justice Elias emphasised ‘the band of reasonable responses test’ is not a subjective test and it is erroneous so to describe it – “it provides an objective assessment of the employer’s behaviour whilst reminding the employment tribunal that the fact that it would have assessed the case before it differently from the employer does not necessarily mean that the employer has acted unfairly”.
Elias LJ also at Paragraphs 20 – 22 of his judgment observed:-
“(20) When determining whether an employer has acted as the hypothetical reasonable employer would do, it would be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee’s opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.
(21) In A v B [2003] IRLR 405, Paragraph 60, when giving the judgment in the EAT in a case involving alleged criminal behaviour by the employee, I said this:-
‘Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and now lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.’
This dictum was approved by the Court of Appeal in Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457, Paragraph 13.
(22) The test applied in A v B and Roldan is still whether a reasonable employer could have acted as the employer did. However more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious.”
(See also Crawford v Suffolk Mental Health NHS Partnership Trust [2012] IRLR 402).
In a recent decision of the Employment Appeal Tribunal, in the case of Mitchell v St Joseph’s School, after referring to the above dicta in Davies and Turner, HH Judge McMullan QC, at Paragraph 30 of his judgment, concluded that:-
“The point is that the duty of the employment tribunal is to review the decision-making of the employer on the material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell [1978] IRLR 379, then to stand back and decide if the dismissal fell within the band of responses of a reasonable employer.”
4.4 Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness. As the Court of Appeal held in Taylor v OCS Group Ltd [2006] EWCA Civ 702:-
“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair. After identifying a defect a tribunal will want to examine any subsequent proceedings with particular care. Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”
4.5 In determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer. As stated by Philips J in Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251:-
“It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may be cases where reasonable managements might take either of two decisions : to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible.”
In the case of Brito-Bubapulle v Ealing Hospital NHS Trust [2013] UKEAT/0358/12, Langstaff P has emphasised that a finding of gross misconduct does not automatically mean that a dismissal is within the band of reasonable responses and a tribunal must assess whether it was reasonable in all the circumstances to dismiss an employee for such gross misconduct. This requires a tribunal to consider any relevant mitigating factors which might mean dismissal was not reasonable. Such factors might include, for example, length of service fact that that was previously unblemished (see further Roldan, referred to above, Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382).
4.6 In Wincanton Group PLc v Stone [2013] IRLR 178, Langstaff P, at Paragraph 37 of his judgment, set out a summary of the law on warnings in misconduct cases:-
“We can summarise our view of the laws as it stands for the benefit of tribunals who may later have to consider the relevance of an earlier warning. A tribunal must always begin by remembering that it is considering a question of dismissal to which Section 98, and in particular Section 98(4), applies [Article 130 of the 1996 Order]. Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer’s act in treating conduct as a reason for the dismissal. If a tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning, will not be valid and cannot and should not be relied upon subsequently. Where the earlier warning is valid, then:
(1) The tribunal should take into account the fact of that warning.
(2) The tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an employment tribunal was to consider the underlining principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a tribunal is entitled to give such weight as it sees appropriate.
(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the tribunal is satisfied as to the invalidity of the warning.
(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will attend in favour of a more severe penalty so a degree if dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employee, and therefore a tribunal, should be alert to give proper value to all those matters.
(5) Nor is it wrong for a tribunal to take account of the employer’s treatment of similar matters relating to others in the employer’s employment, since the treatment of the employer’s concern may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.
(6) A tribunal must always remember that it is an employer’s act that is to be considered in the light of Section 98(4) and a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.”
Further, in a recent judgment of the Court of Appeal in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135 the Court emphasised the need for a restrictive approach to the question when it is legitimate for a tribunal considering the fairness of a dismissal to go behind a final warning given in the past and concluded:-
“There would need to be exceptional circumstances for going behind the earlier disciplinary process and in effect re-opening it.” (per Beatson LJ)
5.1 In light of the facts as found by the tribunal and after applying the guidance set out in the legal authorities referred to in the previous paragraphs of this decision, the tribunal reached the following conclusions.
5.2 The tribunal was particularly impressed with the care taken by the respondent to ensure that the respondent’s disciplinary policy and procedure was followed at all stages of the disciplinary process.
There was no dispute that the claimant was dismissed for gross misconduct arising out of the incident on 28 November 2012 in the Jaguar workshop and, in particular, for breach of safety regulation, in particular, 7.1; endangering himself and other people and aggressive behaviour. Thus the crucial issues for the tribunal to determine related to whether the dismissal was fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order.
5.3 The tribunal could not see any grounds to fault the investigation carried out by Mr Chesney into the incident. The letter sent out by the respondent dated 6 December 2012, following the investigation, inviting the claimant to a disciplinary hearing on 10 December 2012 set out fully and accurately what had been ascertained by Mr Chesney, following various detailed interviews carried out by him with the ‘principal players’, namely the claimant, AM and CL.
The claimant attended the disciplinary hearing with Mr Donnelly. In his letter, dated 21 December 2012, he set out in considerable detail what had taken place at that hearing and why he had concluded the claimant had to be dismissed for the said gross misconduct. The claimant accepted, in evidence, to the tribunal that at the disciplinary hearing, as set out in Mr Donnelly’s letter, he did not, in essence, challenge any of the allegations put to him. In the circumstances, the tribunal could see no criticism for the conclusion of Mr Donnelly that his conduct on 28 November 2012 was gross misconduct. In essence, there was no challenge to the results of the investigation carried out by Mr Chesney.
The tribunal is satisfied, although Mr Donnelly recognised the seriousness of the misconduct in a workshop, before dismissing the claimant, he carefully considered whether dismissal was an appropriate sanction in the circumstances. As stated previously, the tribunal is satisfied that but for the unexpired final warning against the claimant, Mr Donnelly would not have dismissed the claimant. The tribunal, on the authority of the guidance contained in Wincanton, has no doubt Mr Donnelly was correct to take into account the said final written warning. It was apparent from the detail set out in the document setting out the terms of the warning that the incident on 28 November 2012 was for similar conduct to that set out in the warning. Indeed it was also appeared that the claimant had been involved in other incidents of horseplay. To Mr Donnelly’s credit, given the absence of any challenge to the allegations made against him, asked Mr Chesney if he could suggest any mitigating circumstances for the claimant’s actions. He could not.
5.4 The claimant appealed to Mr Brankin. Again the tribunal was impressed by the care Mr Brankin took to explore each and every ground of appeal raised by the claimant in his appeal. Mr Brankin did not just review the evidence, in essence, he re-heard the matter, although he was not strictly required to do so under the respondent’s appeal procedure (Paragraph 12.9 of the Discipline, Policy and Procedure). Again, the tribunal could find no reason to find fault with the conduct of the appeal by Mr Brankin or his conclusion, as set out in his letter to the claimant, dated 19 February 2013, rejecting his appeal. He clearly took into account that AM was not blameless; that AM was not an employee of the respondent and not therefore subject to the respondent’s disciplinary procedure. However, insofar as he could, he ensured Autokleen were told of the incident and told such conduct would not be tolerated and noted that AM had been the subject of a caution by Autokleen. Again, Mr Brankin interviewed the claimant, AM and CL before reaching his conclusions. He also fully took into account the unexpired final written warning before deciding that dismissal was the appropriate sanction.
5.5 In the tribunal’s judgment, the respondent, having carried out a full and sufficient investigation, were entitled to be satisfied that the claimant had been guilty of the said misconduct.
Further, the tribunal accepted the respondent’s decision, in view of the unexpired final written warning made against the claimant in relation to similar misconduct, to dismiss the claimant clearly, fell within the band of reasonable responses in light of the said misconduct. The terms of the warning were set out in some detail to the claimant and the consequences for him if there was a repetition in the relevant period. Unfortunately for the claimant there was such a repetition and the respondent was entitled, in the circumstances, to act upon it.
6.1 The tribunal therefore concluded the dismissal was fair and the claimant’s claim must therefore be dismissed.
Chairman:
Date and place of hearing: 12 – 13 June 2013, Belfast
Date decision recorded in register and issued to parties: