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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Halpin v Creative Composites Ltd [2014] NIIT 218_14IT (03 July 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/218_14IT.html
Cite as: [2014] NIIT 218_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 218/14
CLAIMANT: Michael Halpin
RESPONDENT: Creative Composites Ltd
DECISION
The decision of the tribunal is that the claimant’s claim of unfair dismissal is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Wimpress
Members: Mr A Kerr
Mr P McKenna
Appearances:
The claimant was represented by Mr Harry McCourt of Terence McCourt Solicitors.
The respondent was represented by Mr I Carroll of the Engineering Employers’ Federation.
SOURCES OF EVIDENCE
1. The tribunal received a bundle of documents by agreement and heard evidence from the following witnesses:
The claimant;
Mr Adrian Cairns; and
Mr Eamonn Doone.
The tribunal was also provided with witness statements in respect of each witness and was shown CCTV footage of the incident which gave rise to the claimant’s dismissal.
THE CLAIM AND THE RESPONSE
2. The claimant brought a claim of unfair dismissal arising from the termination of his employment. It was not in dispute that the claimant was dismissed and the response stated that he was fairly dismissed for gross misconduct.
THE ISSUES
3. Whether the claimant was unfairly dismissed by the respondent and if so what compensation should be awarded to him. At a Case Management Discussion on 28 March 2014 the issues were helpfully refined. In particular it was recorded that there were no issues in relation to procedural fairness and that the main matter of dispute was whether the decision to dismiss the claimant was unreasonable or disproportionate.
THE FACTS
4. The respondent company has premises in Lisburn and manufactures moulded products from composite material for a wide range of industry sectors. It has approximately 82 employees. The claimant commenced employment with the respondent on 6 December 2004 as a production operative. In 2005/2006 the claimant was promoted to Press Operator. In 2010 he was further promoted to the post of section leader and at the material time he was the Night Shift Section Leader.
5. The Shift Manager, Adrian Cairns, generally found the claimant to be a reliable Section Leader but there were a number of incidents in 2013 involving the claimant’s use of a fork-lift truck and Mr Cairns warned the claimant in January 2013 that if there were any further incidents formal disciplinary action would be taken. There was a further accident on 25 June 2013 but in the event Mr Cairns decided not to instigate disciplinary action on that occasion due to mitigating circumstances involving an unsteady load.
6. On Friday 14 November 2013 the claimant was on duty. Towards the end of his shift he was driving a fork-lift and collided with a box of compound leaving tyre marks on it. The claimant turned the box around the other way with the result that the damage was not readily visible. The claimant later maintained that this was for cosmetic reasons. The claimant did not report the incident.
7. On the morning of 15 November 2013, the Operations Director, Mr Eamonn Doone, was passing through the Material Store on his way to the morning production meeting. The Purchasing Manager, Tom Morgan and the Stores Supervisor, Steven Palmer, called Mr Doone over and drew his attention to a box of compound which had been damaged some time after Mr Palmer had gone home the previous day. Mr Doone said that he would look into it. At the production meeting Mr Doone asked Mr Cairns if he knew anything about the damaged box. Mr Cairns did not and Mr Doone asked him to find out how the box had been damaged. Mr Doone informed Mr Cairns that the damage had occurred sometime between the end of the day shift on Thursday 14 November 2013 (16.30 pm) and the end of the night shift (8.00 am) on Friday 15 November 2013.
8. Mr Cairns first spoke to the claimant about the matter on Tuesday 19 November 2013. Mr Cairns asked the claimant if he knew anything about a compound box which had been damaged in the Material Store the week before. The claimant asked Mr Cairns if it was the Hubbell compound and what the damage was. The claimant added that he genuinely didn’t know anything about it. Mr Cairns replied that he wasn’t sure and that he just knew that a pallet of compound had been damaged. The claimant asked Mr Cairns how bad the damage was and he replied that he didn’t know all of the details but that he didn’t believe that the damage was too serious. The claimant responded that it wasn’t anything to do with him and that he hadn’t had any accidents in a long time. The claimant also told Mr Cairns that another section leader, Mr Beck had moved pallets over the weekend and asked if Mr Cairns had had checked with him. Mr Cairns replied that he had not but that he would ask him. According to Mr Cairns, Mr Beck would not have been working when the incident happened but he asked Mr Beck about it anyway who responded that he knew nothing about it.
9. On 20 November 2013 Mr Cairns checked the damaged box of compound and saw that there was a tyre mark and a tear on the bottom edge of the box and that there was another box of compound on top of the damaged box. Mr Cairns then spoke to the claimant again and related this information to him as well as the fact that the box had been sitting at the end of a row of boxes stacked closest to the Store’s Office. Mr Cairns told the claimant that the damage had occurred on Thursday 14 November 2013 and asked him again if knew anything about it. On the same day Mr Cairns spoke with John Irwin the Section Leader on mid-shift and asked him if he had any idea what happened to the box or if he saw anything or touched a box while driving in the stores. Mr Irwin replied that he had not hit anything and asked whether Mr Cairns could see what had happened from the CCTV cameras. Mr Cairns indicated that he wanted to speak to Mr Irwin and the claimant before doing so.
10. On Monday 25 November 2013 Mr Cairns viewed CCTV footage in Mr Doone’s office. While doing so Mr Cairns noted down the sequence of events. The footage showed the claimant collecting stock from the Material Store and that during the process the fork-lift truck appeared to disturb two boxes of Hubbell compound which were stacked on top of each other on a pallet. The claimant then tried to lift the stack of two pallets with the fork-lift but that it was evident that it was too heavy. The claimant then used the fork-lift to lift the top box off.
11. On Tuesday 26 November 2013 Mr Cairns asked the claimant to come to his office. Mr Cairns told the claimant that Mr Irwin didn’t know anything about the damaged box of compound. Mr Cairns further informed the claimant that he had viewed CCTV footage. Mr Cairns then talked the claimant through the CCTV footage and drew a sketch to assist the claimant understand what Mr Cairns had seen. Mr Cairns then asked the claimant to what he had to say about this. The claimant stated that the bottom pallet was heavier than the top pallet so he had swapped them around. Mr Cairns then said, “so the heavier pallet is now on top?” The claimant replied that, he had “changed them around”. However, the footage went on to show that that the claimant had not done so but rather that the claimant had used the fork-lift to lift the top box and set it on the ground and then in a series of manoeuvres the claimant turned the damaged box around so that its opposite side was visible. The claimant then returned the box that he had placed on the ground on top of the damaged and now re-positioned box. The claimant then changed his explanation and told Mr Cairns that he had turned the damaged box around and that there was a box with a tyre mark on it outside the building. The claimant also stated that there was no damage to the pallet, that if he had touched the pallet he wasn’t aware of it and that he couldn’t remember hitting any pallet in the store at that time. The claimant offered to show Mr Cairns the box outside and commented that he couldn’t understand why there was an issue if the compound hadn’t been damaged and that it was a bit petty. The claimant showed Mr Cairns the damaged box and Mr Cairns photographed it. The claimant again confirmed that he couldn’t remember hitting any box.
12. On the basis of the information that he had obtained Mr Cairns decided to formally investigate whether the claimant had deliberately concealed damage that he had caused to the compound box. On 29 November 2013 Mr Cairns handed the claimant a letter inviting him to attend an investigatory meeting on 4 December 2013. The letter was headed “Allegation of Fraud” and the particulars were set out in the first paragraph of the letter as follows:
“Following an allegation that you attempted to deceive the Company at 7.00 a.m. on Friday 15th November 2013, by deliberately concealing damage you caused to Company property whilst driving a fork-lift in the Warehouse.”
The letter informed the claimant that he was entitled to be accompanied by a work colleague or Trade Union representative. A copy of the Company Rules was enclosed and attention was drawn to number 32.2 which dealt with gross misconduct.
13. On 2 December 2013 the claimant and his representative, Mr Norman Audley, viewed CCTV footage in Mr Cairns’ office.
14. On 4 December 2013 the investigation meeting took place. The claimant was again accompanied by Mr Audley. At the start of the meeting Mr Cairns introduced additional CCTV footage which showed compound boxes being moved. The claimant agreed that the pallets had moved. Mr Cairns then offered an adjournment so that the claimant and Mr Audley had time to discuss what they had seen. This offer was accepted. The hearing resumed ten minutes later. Mr Cairns asked the claimant for his comments on the CCTV footage and the claimant responded that his definition of damage was when the forks go through the box or when the pallets get broken. The claimant said that he was sorry if Mr Cairns thought that he was trying to deceive Mr Cairns or the company. The claimant said that he hadn’t and that if he had wanted to hide the damage he could have buried the pallet amongst the others. The CCTV footage was viewed again. It showed the claimant re-positioning the damaged box. The claimant said that he had seen the tyre mark but that the box wasn’t damaged. The claimant said that he thought that it was a cosmetic issue and looked bad to anyone walking past it. There was a discussion about the claimant’s previous explanation that it was a weight issue. The claimant agreed that what he had originally told Mr Cairns was untrue. The meeting concluded. The next day Mr Cairns reviewed all of the information that he had obtained and concluded that the claimant had a case to answer about deliberately concealing the damage.
15. Mr Cairns advised the claimant informally that he would be conducting a disciplinary hearing and arranged a date and time for it with him. On 6 December 2013 Mr Cairns issued an invite to the claimant to attend a disciplinary hearing on 11 December 2013. The invite letter set out the allegation, warned the claimant that if the allegation was found to be true he might be dismissed on the grounds of gross misconduct and advised him of his right to be accompanied. Notes of the investigatory meeting were enclosed together with notes of conversations between Mr Cairns and the claimant and photographs of the damaged pallet.
16. The disciplinary hearing took place on 11 December 2013 as arranged. The claimant was again accompanied by Mr Audley. Mr Cairns read out the letter of 6 December 2013 and went through the chain of events. The claimant agreed that the events were as Mr Cairns had recorded. Mr Cairns asked the claimant if he had anything that he wanted to say. The claimant replied that he had put his hands up, he was truly sorry and that he understood the gravity of the situation. The claimant asked Mr Cairns if he could give him a second chance as he really needed his job. The claimant went on to say that he had panicked, that he had damaged the pallet and turned it around, that it wasn’t bad damage and he could have hidden it among the other pallets. Mr Cairns asked the claimant if there was anything else that he wanted to add or wanted him to consider. The claimant said that he was truly sorry and asked Mr Cairns to give him another chance and told him that he would be the Section Leader that Mr Cairns wanted him to be.
17. Mr Cairns considered all of the information that he had received and decided that the claimant should be dismissed for gross misconduct. The factors that weighed with Mr Cairns were the concealment of the damage; being untruthful by initially telling Mr Cairns that he knew nothing about a damaged compound box; being untruthful by maintaining that he knew nothing about the damage when provided with further details of the damage and when it occurred; giving a misleading explanation for moving the Hubbell box; giving a misleading and untrue explanation that he had seen a box with a tyre mark on it outside the building whereas he knew that he had caused the damage himself; only admitting that he had hit the compound box after viewing the CCTV footage on 4 December 2013 and changing his explanation from swapping the heavier and lighter boxes to turning the damaged box around for cosmetic reasons. Mr Cairns believed that the true reason for the claimant’s actions was his concern that he would face formal disciplinary proceedings if it was discovered that he had hit the Hubble box. Mr Cairns believed that the claimant had committed gross misconduct. He considered whether a penalty other than dismissal would be appropriate but concluded that as he could no longer rely on the claimant to tell the truth he had lost all trust and confidence in him. Mr Cairns therefore decided to terminate the claimant’s employment.
18. On 12 December 2013 Mr Cairns wrote to the claimant and informed him of his decision and of his right of appeal. On the same day the claimant the claimant exercised his right of appeal. In his letter of appeal the claimant set out the basis of his appeal which highlighted his length of service and the absence of any previous trouble regarding his work. The claimant stated that he did not deem the tyre mark on the box as damage when questioned about it as the contents were intact and usable. The claimant also maintained that he turned the box around for cosmetic reasons and that if he had wanted to deceive the respondent he would have hidden the box where it would not have been noticed.
19. A disciplinary appeal hearing was convened on 17 December 2013. The letter of 13 December 2013 inviting the claimant to the appeal advised him that Mr Doone would be hearing the appeal, advised the claimant of his right to be accompanied and enclosed all relevant documents.
20. The appeal hearing duly took place and the claimant was again accompanied by Mr Audley. The claimant drew attention to his ten year service and indicated that when previous issues had been highlighted to him he had ensured that they did not recur. The claimant had no complaints about the hearing before Mr Cairns. The claimant denied attempting to defraud the respondent, apologised and said that he had panicked and turned the box around because he didn’t want a crying match about it. The claimant admitted lying about it. He also admitted lying to Mr Cairns about the weight issue and that he had panicked because it was seven o’clock in the morning and he was tired. Mr Doone asked the claimant to clarify his grounds of appeal and the claimant replied that he had been given the job of Section Leader by Mr Doone on trust and that he had done his best to be a reliable Section Leader and that sacking him was extreme and too much. The claimant asserted that he would not defraud or be disloyal to the company and that he had made a mistake and apologised for it. The claimant continued that he would never make this mistake again and hoped that Mr Doone could see this. Mr Audley added that the claimant was still panicking and that he had numerous incidents on the fork-lift in the past and that Mr Cairns was cracking down on these sort of issues. Mr Audley submitted that it was a trivial matter, that the decision to dismiss was too harsh and that the claimant should have been given a final written warning.
21. The hearing concluded and Mr Doone took time to consider the matter. Mr Doone spoke to Mr Cairns in order to understand his rationale for dismissing the claimant and whether he had considered alternatives to dismissal. After this discussion Mr Doone decided that the decision to dismiss the claimant was not too harsh as the claimant’s conduct had destroyed the respondent’s trust and confidence in him. On 19 December 2013 Mr Doone wrote to the claimant and informed him that he that he concluded that Mr Cairns’ decision to dismiss him was correct.
22. In his evidence to the tribunal the claimant said he decided to turn the box of compound around because it was his responsibility to keep the workplace tidy and presentable. According to the claimant, Mr Palmer was very particular about keeping the workplace tidy. However, this evidence was undermined by the CCTV footage which showed the claimant ignoring other stray material in the Stores.
23. The claimant also explained the efforts that he had made to mitigate the loss of earnings occasioned by his dismissal. This included a half day’s work as a fork-lift driver for Unitrunk in Lisburn. Unfortunately the claimant’s fork-lift training was not up to date and as a result an offer of employment made by Unitrunk was revoked. The claimant has since acquired a formal fork-lift qualification at his own personal expense.
THE LAW
Unfair Dismissal
Substantive Unfairness
24. Article 130 of the Employment Rights (Northern Ireland) Order 1996 insofar as relevant provides as follows:-
“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,
(3) 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.”
25. In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 (reaffirmed by the Court of Appeal in England in the cases of Post Office v Foley/HSBC Bank v Madden [2000] IRLR 827) which includes (inter alia) that 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 and that 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. In this regard the tribunal is also assisted by the guidance given by the Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42 as to how an industrial tribunal should approach the task of determining the fairness of a dismissal and in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.
26. In Dobbin v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal. The judgment of Higgins LJ reads as follows:-
“[48]… The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions 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’.”
Procedural Fairness
27. When an employer is considering dismissing an employee it must follow the statutory dismissal procedure. This is the minimum procedure which must be followed in every case to which it applies. In the present case the standard procedure applies which is as follows:-
“Step 1: statement of grounds for action and invitation to meeting.
1. - (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 the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2. - (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless -
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his 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
3. - (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his 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 his final decision.”
SUBMISSIONS
28. Respondent’s Submissions
Mr Carroll placed reliance on Iceland Frozen Foods Limited v Jones [1982] IRLR 439, British Homes Stores v Burchell [1980] ICR 303 and J Sainsbury v Hitt [2003] ICR 111. Mr Carroll submitted that the respondent had satisfied Article 130 by showing what the reason for the dismissal was and the respondent had a genuine belief in the claimant’s guilt. Mr Carroll submitted that the penalty imposed on the claimant fell within the band of reasonable responses open to the respondent. Mr Carroll also drew attention to Mr Cairns’ evidence that he took account of the claimant’s conduct throughout the investigation. Mr Carroll submitted that it was reasonable for the respondent to conclude that the claimant's behaviour had destroyed its trust and confidence in him. Mr Carroll pointed out that Mr Cairns did consider whether to give the claimant another chance and submitted that even if the tribunal found that dismissal was a step too far and concluded that he was unfairly dismissed, the claimant was entitled to nothing on a just and equitable basis. Accordingly, he submitted there should be a 100% deduction. At no stage did the claimant ever give the true reason for his actions. The truth was only given by Mr Audley at the appeal. Mr Carroll submitted that the claimant had led the respondent a merry dance and that he had tried to do the same in his evidence to the tribunal. Mr Carroll reminded the tribunal that the claimant had raised no issue about the procedure adopted by the respondent. In relation to mitigation of loss Mr Carroll criticised the claimant’s efforts to obtain a new job and submitted that in the event of the tribunal finding in his favour any award for future loss should be the absolute minimum and drew attention to the claimant’s acceptance that he should be able to get a job straight away having recently acquired a fork-lift qualification. The claimant also failed to disclose a half day’s earnings that he had received from Unitrunk and the Schedule of Loss submitted on behalf of the claimant contained double counting in the form of notice pay and loss of earnings.
29. Claimant’s Submissions
Mr McCourt accepted that the claimant had told untruths during the investigation but pointed out that he had apologised for this in the course of the investigation, the disciplinary hearing and the appeal hearing. Mr Doone and Mr Cairns both confirmed that the claimant was remorseful and that he had always been reliable in the past. Mr McCourt criticised the decision to classify the claimant’s actions as fraud. Mr McCourt submitted that the alleged misconduct did not have sufficient gravity to constitute fraud that at most it amounted to dishonesty. Mr McCourt submitted that it was unreasonable to dismiss the claimant on the basis of this misconduct taking into account his nine years reliable service, the fact that he was promoted twice and his clear disciplinary record. The respondent should also have taken account of the fact that repetition was not likely as the claimant had previously shown that he had the ability to learn from his mistakes. In relation to mitigation Mr McCourt pointed out that the claimant had paid for his fork-lift licence at a cost of £150 and was offered a job. Mr McCourt accepted that this improved the claimant’s prospects for finding a job but submitted that in the current economic climate it was not surprising that the claimant was unable to secure a job since being dismissed. Mr McCourt also referred the tribunal to the decision of the Court of Appeal in Hadjioannou v Coral Casinos Ltd [1981] IRLR 305.
Conclusions
30. The most troubling aspect of this case is the categorisation of the alleged misconduct as fraud. We do not believe that this categorisation was warranted. However, the particulars of the misconduct specified by the respondent make clear that the misconduct in question was the concealment of damage caused to company property. The respondent should have simply set out the behaviour and indicated that it constituted gross misconduct rather than attempting to make it fit one of the list of examples of gross misconduct. Such lists can never be exhaustive and the respondent’s decision to describe the claimant’s misconduct as fraud caused the claimant understandable distress. However, the erroneous categorisation of the alleged behaviour did not result in any injustice to the claimant and does not render the decision to dismiss him unfair.
31. We have given careful consideration to the respondent’s reason for dismissing the claimant namely that he had concealed the damage that he had caused to a box of compound. We are entirely satisfied that the respondent genuinely and reasonably believed in the claimant’s guilt in respect of this offence following a reasonable investigation. Having read the claimant’s witness statement and listened carefully to his oral evidence we can understand why the respondent concluded that it had lost all trust and confidence in him. The claimant not only admitted giving untruthful accounts to the respondent during the investigation but persisted in giving a far from straightforward account in his evidence to the tribunal. Most strikingly the claimant sought to portray his decision to turn the box around as an action taken in pursuance of his responsibility to keep the workplace tidy and presentable and drew attention to the zealous storeman, Mr Palmer, whom the claimant said was very particular in this regard. To give this evidence at a time when it was clear to everyone including the claimant that the real reason was his fear in incurring disciplinary action due to the damage he had caused is bizarre. Mr Audley made this very point about the claimant’s fear of disciplinary action at the appeal hearing. It seems to us that the claimant has great difficulty in telling the truth and constantly adjusted his stance in order to address the situation faced by him and minimized rather than accepted his responsibility if he felt that he could get away with it.
32. Whilst the decision to summarily dismiss the claimant was harsh we are satisfied that it fell within the range of reasonable responses open to the respondent. Nor could the decision to dismiss the claimant be regarded as disproportionate. Even if we had been persuaded that the dismissal was unfair we would have made a 100% deduction on account of the claimant’s contributory behaviour.
33. As envisaged at the Case Management Discussion there were no procedural fairness issues and the tribunal is satisfied that the minimum three step statutory procedure was complied with and we have not detected any procedural failings whatsoever.
34. Accordingly the claim must be dismissed.
Employment Judge:
Date and place of hearing: 1 May 2014, Belfast.
Date decision recorded in register and issued to parties: