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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Moore v Global Lubricants NI Ltd [2014] NIIT 02048_13IT (14 April 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/2048_13IT.html
Cite as: [2014] NIIT 02048_13IT, [2014] NIIT 2048_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2048/13
CLAIMANT: Stephen Moore
RESPONDENT: Global Lubricants NI Ltd
DECISION
The unanimous decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Mr P Archer
Mrs C Stewart
Appearances:
The claimant was present and represented himself.
The respondent was represented by Ronnie Hillen of Hillen Management.
The claim
1. The claimant claimed that he had been unfairly dismissed by the respondent. The respondent denied his allegations in their entirety.
The issue
2. The issue before the tribunal was whether the claimant was unfairly dismissed
Sources of evidence
3. The tribunal heard evidence on behalf of the respondent from Stanley Watson, Managing Director and owner of the respondent company. The claimant also gave evidence. The tribunal was presented with an agreed bundle of documentation and took into account only documentation referred to in the course of evidence.
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4. |
(i) |
During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (‘Rogan’) – judgement delivered on 13 October 2009.
In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-
[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]
“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…
The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”
The tribunal therefore sought to avoid straying into the ‘forbidden territory’ of making its own determination of the evidence.
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(ii) The position was also articulated at a Case Management Discussion held on 28 January 2014 in the following terms:-
“I explained the limited jurisdiction of the industrial tribunals in relation to unfair dismissal claims and emphasised that it was not the tribunal’s function to place itself in the role of an employer and re-run the disciplinary process. It was only where there was a procedural or substantive unfairness or where there had been an inadequate investigation or where an employer could not reasonably have dismissed the claimant in these circumstances that the tribunal could intervene. It was not the tribunal’s function to determine what they would have done in those circumstances.”
Findings of fact
5. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant was employed by the respondent (‘the company’) as a production operative from 21 August 2006 until the effective date of termination of his employment on 30 August 2013.
(ii) The Company was engaged in the production of a complete range of high performance lubricants for the automotive and agricultural industries. Stanley Watson is the company’s managing director and owner. Currently there are four individuals engaged at the factory floor level. There is also one driver currently employed by the company. In addition there is a company secretary/office manager and another individual who is responsible for stock control/ administration. This was a new post created after the circumstances giving rise to the dismissal of the claimant.
(iii) In May 2013, Mark Robinson, who drove a lorry distributing the company’s products, was confronted by Stanley Watson with an allegation of having stolen fuel from the company. Mark Robinson resigned from the company in mid-May 2013.
(iv) On 4 June 2013, Stanley Watson had a telephone conversation with one of the company’s customers who happened to mention that cheap oil was being sold around his area. It appears that this involved 1,000 litre drums which weighed just under one ton. They were being sold for £400.00, which was below market price.
(v) After the telephone conversation with the customer on 4 June 2013, Stanley Watson confronted Mark Robinson regarding the new allegations. Stanley Watson was totally certain that another person from within the company was assisting Mark Robinson in the making up and loading of the 1,000 litre containers. When approached by Stanley Watson, Mark Robinson named the claimant as being the person who assisted him and who loaded the containers onto the truck using a forklift. It was alleged that the claimant had prepared the product two days in advance of loading taking place and that Mark Robinson had split the sale proceeds with the claimant. After holding a meeting with staff on 5 June 2013 regarding the matter, Stanley Watson requested his production supervisor, Michael Shields, and the claimant to stay behind. He spoke to the claimant regarding the situation which had come to his attention and offered him the option of resigning, which he felt would not affect him in obtaining another job.
(vi) It was clear to the tribunal that Stanley Watson was a sympathetic and generous employer who had never had to discipline any of his staff during 17 years of trading until the episodes arose involving Mark Robinson and the claimant.
(vii) The claimant was informed on 5 June 2013 that he would have to be suspended. The letter of suspension is in the following terms:-
“Following allegations of gross misconduct you have been suspended from the company on full basic pay.
Suspension is a neutral act, which does not imply guilt or blame and will be for a short a period as possible.”
(viii) Given the company structure, Stanley Watson was responsible for the investigation into the allegations against the claimant. This included an investigatory meeting with him on 22 August 2013. It was followed by a disciplinary hearing held on 29 August 2013, and an appeal hearing on 24 September 2013. During the period leading up to the claimant’s dismissal, Stanley Watson availed himself of appropriate advice, including legal advice, and advice and assistance from Mr Hillen, his representative.
(ix) At all material times the claimant denied the allegations and also asserted, in his claim form to the tribunal, that any decision in relation to his employment should have awaited the outcome relating to criminal proceedings. However, the tribunal is not persuaded by this approach as it is appropriate for an employer to carry out a separate investigation if he has a sufficient basis for doing so, apart from a police investigation.
(x) The correspondence to the claimant inviting him to a disciplinary meeting on 29 August 2013 reads as follows:-
“22/08/2013
Dear Stephen Moore
As you were unwilling to give me any explanation at your investigation meeting of produce manufactured and being taken from our premises without permission the company has considered all the information available and we have decided to move on to the second stage of proceedings which is a disciplinary meeting.
We are inviting you to attend a meeting on Thursday 29th August at 12 pm at the company address above.
Notes taken by the company secretary at the investigating meeting on 22nd August as you required have been enclosed.
I would remind you that you have the right to have a work colleague accompany you to the meeting, no other person will be permitted to attend. The company secretary will be in attendance to take notes of the meeting which will be available to you.
I should advise you that this may be regarded as gross misconduct and could result in you being dismissed from the company employment.
Please telephone the company to confirm you will be attending this meeting.
After the disciplinary hearing, you will be informed in writing of the Company’s decision.
YOURS SINCERELY,
..........................
FOR AND ON BEHALF OF THE COMPANY.”
(xi) The tribunal was directed to notes of various meetings, including witness statements obtained during the investigation. The claimant’s appeal letter against his dismissal on 30 August 2013 states that all allegations against him were fabricated and that he had never stolen from the company and had always been loyal to the company and staff. In addition he asserted that he was appealing against his dismissal on the basis that he had not heard or seen any evidence to prove that he was guilty of any criminal charges, and stated that he had been unfairly dismissed.
(xii) The disciplinary appeal outcome letter states the following:-
“26/09/2013
Dear Stephen
I refer to your appeal hearing on Tuesday 24th September 2013 against your dismissal.
I have carefully considered your case and the fact that you provided no new evidence or information at the appeal which would influence me to change my decision.
I would therefore advise you that your appeal has been unsuccessful and the original dismissal decision is confirmed.
It is regrettable that I have been placed in this position which has resulted in your employment having to be terminated.
Yours sincerely
Stanley Watson.”
The law
6. (i) The law in relation to unfair dismissal is set out in Rogan as follows:-
“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.”
“130.― (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that 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) A reason falls within this paragraph if it—
(b) relates to the conduct of the employee, ...
(4) ... Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."
Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.
[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.
“[48] The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.
[49] The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –
“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-
(1) the starting point should always be the words of section 57(3) themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of 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.”
[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, 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 circumstance be a reasonable conclusion.”
(ii) At paragraph 26 of Rogan, Morgan LCJ states as follows:-
“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for tribunal. In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.
Again at paragraph 27 of his judgment, Morgan LCJ states:-
“In our view the conclusion by the tribunal that ‘the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence’ is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.
In paragraph 28 he continues:-
“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence. None of this is an indicator of a lack of reasonable investigation”.
Girvan LJ in paragraph 7 of his judgement states as follows:-
“The investigation was one which was reasonable in the circumstances. It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”
Submissions
7. The respondent’s representative’s made brief submissions at the end of the hearing. The claimant indicated that he had nothing further to add.
Conclusions
8. The tribunal, having carefully considered the evidence and the submissions made by the respondent’s representative, and having applied the principles of law to the findings of fact concludes as follows:-
(i) The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-
(1) Was the dismissal of the claimant by the respondent fair in all the circumstances? In determining this primary issue the Tribunal should consider the following:
(a) Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?
(b) Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?
(i) Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?
(ii) At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?
(c) Was the dismissal a fair sanction in the circumstances?
(d) Was the claimant afforded an effective right of appeal in the circumstances?
(ii) The tribunal answers all questions in the affirmative and therefore dismisses the claimant’s claim.
Employment Judge:
Date and place of hearing: 12 March 2014, Belfast
Date decision recorded in register and issued to parties: