Industrial Tribunals Northern Ireland Decisions

INDUSTRIAL TRIBUNALS

 

CASE REF: 418/15

 

 

 

CLAIMANT: Harold McDonald

 

 

RESPONDENT: Apex Housing Association Ltd

 

 

DECISION

 

The unanimous decision of the tribunal is that the claim of unfair dismissal is dismissed.

 

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: H McConnell

A Gribben

 

 

Appearances:

The claimant attended in person and was not represented.

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by Pinsent Mason LLP Solicitors.

 

Background

 

1. The claimant had been employed by the respondent, or by its predecessor, for approximately 10 years in the kitchen of a residential home for vulnerable adults.

 

2. On 10 August 2014, the claimant berated a junior kitchen employee about the consistency of a cake. He described the cake as "crap" and a "disgrace". When the junior employee said that the claimant was a "cook" rather than a "chef", the discussion deteriorated further. The junior employee complained about the claimant's words and actions during this incident and alleged that he had been intimidated. The claimant subsequently complained about the junior employee and alleged that he had been aggressive.

 

3. Following an investigation, the claimant was invited to respond to a disciplinary charge alleging "verbal and physical aggression towards a work colleague". The charge was upheld and he was dismissed for gross misconduct. That dismissal was confirmed on appeal.

 

4. The claimant alleges that the dismissal was unfair.

 

Relevant Law

 

5. The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

 

6. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

"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 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."

 

7. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

 

"(49) The correct approach to [equivalent GB legislation] was settled in two principal cases - British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) -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 [equivalent GB legislation] is as follows:-

 

(1) the starting point should always be the words of [equivalent GB legislation] 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, and another quite reasonably take another;

 

(5) the function of an 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 Home 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, it 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."

 

8. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

 

"I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET 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."

 

He continued at Paragraph 19:-

 

"It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal."

 

9. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

 

"In brief the council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the 'range or band of reasonable responses'. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity."

 

At Paragraph 38 of the decision, he continued:-

 

"On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council's dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller's claim."

 

10. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

 

"Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite"

 

"In A v B the EAT 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 not lawyers. Of course even in the most serious 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 enquiry 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."

 

11. It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal. It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal: i.e. whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.

 

12. The claimant, despite repeated explanations of the limited role of the tribunal in these cases, did not appear to accept these limitations on the tribunal's jurisdiction.

 

Hearing

 

13. The claimant gave evidence on his own behalf and called no other witnesses.

 

14. Ms Ann Bannister, the nursing manager, Ms Jackie Kelly, the personnel officer who conducted the disciplinary hearing and Ms Sheena McCallion, the Director of Housing and Care Services, who heard the internal appeal, gave evidence on behalf of the respondent.

 

15. Each witness, including the claimant, adopted their previously exchanged witness statements as their evidence in chief and moved immediately to cross-examination and then to brief re-examination. This procedure had been explained to the claimant during a telephone conference on 22 May 2015 at which various directions had been given, and was again explained during the course of the present hearing.

 

16. The claimant's cross-examination of the respondent's witnesses was extremely brief and was in the main limited to a suggestion that the respondent had reached the wrong decision although he also raised procedural issues such as delay, representation and the provision of witness statements. This was despite it being stressed to the claimant on more than one occasion that this was his opportunity to challenge the evidence put forward on behalf of the respondent and indeed to put forward alternative evidence for comment. It was also despite the fact that the claimant had been allowed a 30 minute recess to further consider the statement of Jackie Kelly and to prepare further questions in relation to her evidence.

 

Relevant Facts

 

17. It was common case that the claimant had been employed in the kitchen of the nursing home since 2008. To the extent that it mattered, the respondent regarded him as occupying the position of "cook". The claimant instead regarded himself as a "chef" and felt that there was an important distinction. When he was cross-examined by Mr Doherty, he explained his feelings on this matter by telling Mr Doherty that it was the equivalent of someone calling Mr Doherty a solicitor. It is clear however that the claimant had been offered and had accepted the post of "cook" in January 2008.

 

18. Mr Jamie Owens and Ms Kirsty McNicholl had also been employed as kitchen assistants in the same kitchen at a more junior grade to that of the claimant.

 

19. On Sunday 10 August 2014, the claimant had been rebuked by Staff Nurse Hegarty about the manner in which he spoke to a resident. He was upset and returned to the kitchen. An altercation then took place between the claimant and Mr Owens in the kitchen. The claimant criticised the consistency and quality of a cake which had been baked by Mr Owens and Ms McNicholl for a resident's birthday.

 

20. On the following day, Monday 11 August 2014, Mr Owens submitted a formal written complaint about the claimant's conduct during this altercation.

 

He complained that the claimant had described the cake as "crap", described Mr Owens and Ms McNicholl as "useless" and that he had indicated to Mr Owens that he was going to give him a "kicking". He complained that the claimant had shouted at him and had threatened "I'll kill you". He complained further that the claimant had grabbed him by both biceps and pushed him back towards a work bench. He stated that the claimant had said he wouldn't hit him work but that he would wait until they were out of work. In short, he complained of intimidation and threatening behaviour.

 

21. Ms Bannister telephoned the claimant who was not at work to ask him to come and speak to her about the matter. He did so on the following day, Tuesday 12 August 2014.

 

22. Ms Bannister had received two other statements in relation to the altercation on Monday 11 August 2014. One was from Ms Elaine Friel. That statement, which recorded an apparently heated discussion, differs in certain minor respects to that of Mr Owens. However in broad terms it supports Mr Owens version of events. She stated in particular that the claimant had described Mr Owens and Ms McNicholl as "crap". She stated also that Mr Owens had said that the claimant was a cook rather than a chef. She stated that the claimant got mad at that point and started shouting at Mr Owens that he was going to give him a kicking. She stated that at one point the claimant had Mr Owens by the upper arms against the wall and that the claimant let Mr Owens go when Ms Friel shouted the claimant's name. She stated that Mr Owens had been a "terrible colour".

 

23. The other statement given to Ms Bannister on 11 August 2014 was one from Ms Carol Hegarty, the staff nurse.

 

Ms Hegarty stated that she had heard shouting coming from the kitchen and had heard the claimant shouting at Mr Owens inviting him to come round to his house after work to "sort this out". She stated that it "sounded very threatening". She stated that when she entered the kitchen the claimant stopped shouting and that Mr Owens was "ashen". She stated that he thought he was going to collapse.

 

24. Ms Bannister had asked the claimant to let her have a written statement. That was provided on Tuesday 12 August 2014. It was in the form of a complaint. He claimed that Mr Owens had started shouting at him and had then started pushing him. He stated that he had felt very threatened and had asked Mr Owens to stop this in work and come to his house later to sort it out if he wanted to. He accused Mr Owens of being "violent and aggressive".

 

25. The claimant had not raised any complaint against Mr Owens until after he had been notified by Ms Bannister of a written complaint from Mr Owens and until after he had been asked to provide a written statement in relation to the altercation. When it was put to the claimant in cross-examination that he had simply been reacting to the complaint lodged by Mr Owens, he replied that "he got there before I did".

 

Ms Hegarty recorded a discussion which she had with the claimant immediately after the altercation and the claimant had not, according to the statement of Ms Hegarty, mentioned any aggression from the claimant.

 

26. On the same day as he submitted the written statement to Ms Bannister, 12 August 2014, the claimant texted Mr Owens to state:

 

"Why did you do that to me Jamie?? I thought we were friends. Friends have an argument but they work it out not report on them. This could get me and you the sack."

 

That text was disclosed to Ms Bannister.

 

27. Part of the claimant's complaint in this matter was an allegation that his complaint against Mr Owens had not been investigated and that therefore the process had been flawed from the outset. It is however clear that letters were issued in identical terms on 14 August 2014 to both the claimant and to Mr Owens requiring them to attend an investigation meeting with Ms Bannister "regarding an incident which is alleged to have taken place in the Kitchen of Brookmount Nursing Home". Both the claimant and Mr Owens were advised of a right to be accompanied at that meeting by a work colleague or a trade union representative. Since this was to be an investigatory meeting, there was no statutory right to representation.

 

28. Both Mr Owens and the claimant were interviewed. Both seem to have been treated in the same way. Mr Owens for example was asked whether he walked towards the claimant, whether he raised his voice towards the claimant, whether he shouted at him to "come on" etc. It seems clear that the claimant's complaint about Mr Owens was not ignored.

 

29. Mr Owens denied the allegations against him and alleged that the claimant had shouted about "come up to my house later and I'll give you a kicking" and "I'll get you outside". He stated that his own hands were at his side the whole time and that he had no intention of fighting the claimant and that he didn't push him.

 

30. The claimant stated that both he and Mr Owens had been shouting but that Mr Owens had pushed him. He stated that he had invited Mr Owens to come to his house after work to "talk about it". When asked whether he had used the word "crap" he stated that he might have used that word. In that investigatory meeting, the claimant stated that he did not recall Mr Owens stating that the claimant was a cook and not a chef.

 

On further questioning he accepted that he had said to Mr Owens "I'll give you a kicking" but asserted that that had been in reaction to a statement from Mr Owens that "I'm going to give you a doing". He later accepted that he might have shouted at Mr  Owens "I'll kill you". He claimed it was self defence.

 

31. He was asked specifically:

 

"Did you shout at Jamie that you wouldn't hit him in work but wait until you were out of work?"

 

He replied:

 

"I meant if I was going to fight you I wouldn't do it in work. I would do it outside work. He was offering me on still."

 

32. Ms Bannister interviewed Ms McNicholl. While Ms McNicholl had not been a direct witness to the altercation, she was involved to the extent that she stated that the claimant had asked her to contact Mr Owens to ask him to drop the complaint.

 

33. Ms Bannister interviewed Ms Friel on 18 August 2014.

 

She stated that the claimant had described Mr Owens and Ms McNicholl as "useless". She stated that Mr Owens had not really raised his voice and that the claimant had exploded when Mr Owens had said to him that he was a cook and not a chef. She stated that the claimant had pushed Mr Owens against the wall by the arms and that Mr Owens had had his own arms at his side. She stated Mr Owens hadn't been doing anything and wasn't struggling. She stated that he had just looked shell-shocked. She stated that the claimant had been more aggressive and physical.

 

34. Ms Bannister and Ms McGrory compiled an investigation report which was undated but in all probability was completed in early October 2014.

 

That report referred to both the initial complaint and the counter-complaint. It summarised the evidence given by the claimant, Mr Owens, Ms Friel and Ms Hegarty. It reached the conclusion that Mr Owens actions did not warrant disciplinary action but it stated that he might have been able to avoid the escalation of the incident if he had acted differently. Ms Bannister and Ms McGrory felt that a conversation should be held with Mr Owens regarding his actions and how he would conduct himself in future should a similar situation arise.

 

35. In relation to the claimant the report recommended formal disciplinary action.

 

36. On 6 October 2014 the claimant was invited in writing to attend a disciplinary hearing on 16 October 2014. He was given the right to be accompanied by a work colleague or a trade union representative of his choice.

 

37. The claimant advised that he wished Kirsty McNicholl to appear as his representative. He was advised that that would not be appropriate given that she had been interviewed in respect of this matter. She might indeed have been further interviewed in relation to the text messages received from the claimant. He was asked whether there was anyone else who could accompany him and he said there wasn't. That in itself is surprising given that the Home employed some 50 staff. In any event the claimant confirmed that he was happy to proceed with the disciplinary hearing without accompaniment. He confirmed that position again at the start of the disciplinary hearing.

 

38. Another complaint from the claimant to the tribunal was that he had therefore been denied his choice of representative at this hearing. That said, the claimant was unable to point to any respect in which he had been denied an opportunity to put forward his response or how the absence of Ms McNicholl had adversely affected him in any way. He simply said that it had been an attempt to gag him. Since the claimant had on two separate occasions confirmed that he was happy to proceed without Ms McNicholl and since it was clear Ms McNicholl had already been a witness to some extent and could well have been interviewed again, her presence as a representative would not have been either appropriate or reasonable.

 

The Employment Relations (NI) Order 1999 provides for a statutory right to be accompanied at a disciplinary hearing by a trade union representative or by a colleague. However that right applies only where "a worker reasonably requests to be accompanied at the hearing".

 

The Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures states at paragraph 103 that:

 

"Whether a request for a companion is reasonable will depend on the circumstances of the individual case and, ultimately, it is a matter for the courts or tribunals to decide. However, when workers are choosing a companion, they should bear in mind that it would not be reasonable to insist on being accompanied by a colleague whose presence would prejudice the hearing or who might have a conflict of interest."

 

There was a detailed discussion of the allegations. In particular the claimant accepted that he had been shouting at Mr Owens but he stated that both parties had been shouting. On this occasion, unlike at the investigation meeting, he could recall Mr Owens stating that he was a cook rather than a chef. He stated that Mr Owens knew that "its annoys me".

 

39. The claimant confirmed that he said to Mr Owens "we'll take it outside". He stated that he had pushed Mr Owens back and had grabbed him but stated that this had been in self defence. He stated that he had felt "very threatened".

 

Ms Friel was interviewed again on 4 November 2014. She confirmed that in her view the claimant had started shouting at Mr Owens and had told him he was going to give him a kicking. She said that she not heard Mr Owens threaten the claimant. She felt that the claimant had been the most aggressive and had shouted about three times about "get outside now I'm going to give you a f---- kicking". She said that Mr Owens had turned an awful colour and was the most vulnerable. It seems common case that Mr Owens had heart problems and it was suggested without rebuttal that he had been fitted with a pacemaker.

 

40. Ms Bannister was interviewed on 4 November 2014. She stated that the claimant had a "fiery temper" and that she had had "a lot of conversations with Harry about his attitude". In contrast, she stated that she did not believe Mr Owens could be aggressive.

 

41. Ms Hegarty was interviewed on 4 November 2014. She stated that she had heard the claimant shouting "come round to my house after work and we will sort this". She stated that his tone had been aggressive. She stated that she had not heard Mr Owens shout. She stated she had never heard Mr Owens shout. She stated that she had never felt that Mr Owens was threatening at any stage.

 

42. Mr Owens was interviewed again on 4 November 2014. She stated that he felt threatened and that the claimant knew that he had a pacemaker. He stated he was worried about that.

 

43. Another source of complaint about the process for the claimant was that he had not at the original disciplinary meeting been provided with a full copy of the statements. He had however during that first disciplinary meeting, and indeed at the earlier investigation meeting, been given full details of the substance of the complaints about him.

 

44. In any event the claimant was written to on 17 November 2014 and copies of all the statements taken originally and subsequently in relation to this matter were provided. He was given an opportunity to comment upon those at a further disciplinary meeting arranged for 24 November 2014.

 

45. The claimant did not attend that resumed disciplinary meeting on 24 November 2014 because he was off work with work related stress.

 

46. An appointment was arranged with an occupational health specialist on 9 December 2014. The claimant stated that he could not attend because he wasn't in a good mental state. After further discussion the claimant confirmed that he would attend the appointment. The occupational health specialist sought to confirm whether it would be appropriate to ask him to make further representations in relation to the statements. The claimant told the occupational health specialist that he felt there was no need to do so. There was in any event no impediment to the claimant commenting on the written statements.

 

47. The respondent confirmed that it would accept written representations by 13 January 2015. Those representations were received. He stated inter alia that Ms Friel had been trying to get him in trouble and had been lying about what actually happened. He stated that Mr Owens had been aggressive to him and had made the first move.

 

48. On 13 January 2015 Ms Kelly wrote to the claimant to ask him to attend a meeting on 28 January 2015 for the outcome of the disciplinary process.

 

The claimant was advised that the finding was that he engaged in an uncontrolled verbal and physical assault on Mr Owens and that this amounted to gross misconduct. On that basis he was being summarily dismissed. He was advised that he would receive a written confirmation of the outcome.

 

49. The claimant then stated that:

 

"Jamie is going to get what was coming to him".

 

50. Written confirmation of the dismissal was issued on 28 January 2015.

 

51. The claimant lodged an appeal on 3 February 2015.

 

He alleged that the respondent had not acknowledged or acted upon his letter of complaint against Mr Owens. He alleged that he had not received witness statements in a timely manner. He stated he had not been given support during the inquiry and that the process had dragged out and missed "many timeframes". He stated that he believed the organisation had been looking for an excuse to sack him because he had taken a claim against them for an injury at work and also because he was on an old contract.

 

52. On 12 February 2015 the claimant was advised that an appeal would be conducted by Ms Sheena McCallion on 24 February 2015.

 

53. The claimant was not represented at the appeal hearing. He confirmed that he wished to proceed alone.

 

He argued that the respondent had not responded to his complaint about Mr Owens, that he had not received witness statements in a timely manner and that the witnesses had colluded with each other. He argued he had received no support and that the process for the termination had taken too long. He further argued that when he was off with stress he was "hounded by HR". He stated that the organisation had been looking for an excuse to sack him.

 

On 3 March 2015, the appeal was rejected on each ground.

 

Decision

 

54. The first issue for a tribunal to consider in this type of case is whether the respondent has established the reason for the dismissal and if so whether that reason is a potentially fair reason for the purposes of the Employment Rights (Northern Ireland) Order 1996.

 

55. The claimant alleged in his internal appeal that the respondent had been:

 

"Looking for an excuse to sack me, as I had taken a claim against them for an injury I received at work and also because I was on one of the old contracts."

 

That argument was not put forward by the claimant in the course of the tribunal hearing either in his written witness statement or in his final submission. The tribunal has heard no evidence in relation to that.

 

56. The current disciplinary action only commenced after the respondent had received a written complaint from Mr Owens, even though Ms Hegarty, the staff nurse, had verbally rebuked the claimant on 10 August 2014 for the manner in which he spoke to a resident and had also on that date heard the claimant shouting and behaving in an aggressive manner. If it had indeed been in the mind of the respondent to have engineered an excuse to sack the claimant, that could and would have been done much earlier.

 

57. The tribunal is satisfied, having heard the evidence of all the witnesses in this case that the actions of the employer in instigating an investigation procedure and then proceeding to discipline and dismissal were solely due to the conduct of the claimant on 10 August 2014 and that the dismissal was for one of the potentially fair reasons for dismissal for the purposes of the 1996 Order.

 

58. It is not the tribunal's responsibility at this point to re-run the disciplinary procedure and to attempt to substitute its decision for that of the employer. Having concluded that the reason for the dismissal in this case was a potentially fair reason for the purposes of the 1996 Order, the tribunal must then consider whether dismissal was in fact unfair for the purposes of that Order. It must consider whether there had been a reasonable investigation by the respondent, leading to a reasonable belief in guilt, and, if so, to consider whether in all the circumstances of the case, the decision to dismiss was a reasonable decision for a reasonable employer to make.

 

59. In this case, the process commenced with the written complaint from Mr Owens. Mr Owens had no obvious motive to lie about the claimant or to generate a false complaint in this case. He had previously been a friend of the claimant and had visited his house. Furthermore his complaint was lodged on 11 August 2014 and the claimant's complaint was not received until two days later on 13 August 2014. If it had indeed been the case that the claimant had faced an aggressive attack from Mr Owens on 10 August 2014 and if he had indeed been in fear of personal injury, the respondent was entitled to conclude that it was highly unlikely that no complaint would have emerged from the claimant for two days and would only have emerged after he had been specifically asked to provide a written statement in relation to that incident. There had been no attempt on the claimant's part before 13 August to invoke any form of disciplinary complaint against Mr Owens who was at that stage his subordinate.

 

60. The initial complaint from Mr Owens had alleged abusive language, aggression, screaming, threats of a kicking, threats to kill him, and a physical assault by grabbing him by both arms and by pushing him against a work bench.

 

That statement had been corroborated in certain important respects by the statement of Elaine Friel, received by the respondent on the same date. Ms Friel had stated that the claimant had been annoyed before the relevant incident began as a result of being rebuked by Ms Hegarty for the way in which he spoke to a resident. She confirmed that the claimant had been angry about the state of the cake and had criticised it, although the language recalled by Ms Friel was different. She also recalled that the claimant had criticised Mr Owens and Ms McNicholl. She then recalled that the Mr Owens had asked the claimant why he called himself a chef rather than a cook and that the claimant had got "mad at this point and started shouting at Jamie to get out he was going to give him a kicking". She stated that she turned to go out the kitchen door at that point but when she turned around again the claimant had Mr Owens by his upper arms up against the wall. Mr Owens had been "a terrible colour".

 

61. The initial complaint of Mr Owens was also corroborated to a significant extent by the statement Ms Hegarty also received on 11 August 2014. Ms Hegarty confirmed that she had heard shouting coming from within the kitchen and that the claimant had been shouting at Mr Owens and that he had "sounded very threatening". She stated that Mr Owens had been "ashen, even his lips were grey". Ms Hegarty recorded a conversation that she had had with the claimant in the immediate aftermath. At no point in the course of that conversation did she recall that the claimant had stated that he had been assaulted or that he had been subjected to an aggressive attack by Mr Owens or indeed that he had been in fear at any point.

 

62. Investigatory meetings followed with the claimant and with Mr Owens. The claimant, having been informed that he was allowed by the respondent to have a representative at that investigatory meeting did not avail of that offer and raised no suggestion that he wished Ms McNicholl or anyone else at that point to assist him. The claimant accepted that he may have described the cake as "crap". He also accepted that he had told Mr Owens that he would "give you a kicking" but alleged that was in response to a threat from Mr Owens. He said that he might have stated to Mr Owens "I'll kill you".

 

63. In the circumstances, a reasonable employer, faced with that evidence was perfectly entitled to conclude that disciplinary action should proceed against the claimant but not against Mr Owens. The tribunal is satisfied, and heard the evidence and having noted the documents that the respondent considered both Mr Owens complaint and the claimant's complaint before reaching its conclusion in this respect. It is not the situation, as the claimant suggested, that his complaint was simply ignored.

 

The investigation process therefore seems to have been entirely fair.

 

64. The disciplinary hearing on 16 October 2014 was conducted by Ms Kelly with the assistance of Ms Sands, the Housing and Care Service Manager. The claimant had been asked to be represented by Ms McNicholl. When it was pointed out to him that Ms McNicholl would not be an appropriate representative, he accepted the position and stated that he was willing to proceed without representation. The tribunal cannot see anything unfair in any of this. Given that Ms McNicholl was a witness to some of the matters arising in this incident and could potentially have been interviewed again and in particular given the fact that she had been specifically criticised by the claimant, it is difficult to see how the respondent could have reacted any differently. There were plenty of other employees in the residential home who could have been approached by the claimant for assistance.

 

65. If there is any criticism to be made of the respondent in this case it is that the process was incredibly detailed and thorough and perhaps rather more detailed and thorough than the circumstances of this case required. There was a detailed and painstaking investigation. There was then a lengthy disciplinary meeting with the claimant. This was followed by further meetings with Mr Owens, Ms Friel, Ms Bannister, and Ms Hegarty. Further delays were caused by the claimant's absence on sick leave. However, none of these delays adversely affected the claimant and they did not make the process unfair.

 

66. While the claimant had not initially been provided with full witness statements at the earlier disciplinary hearing, he was subsequently provided with all the initial and subsequent statements on 17 November 2014 and had been invited to comment at a further disciplinary hearing. He did not attend that further disciplinary hearing but commented in writing on those statements. Again there is nothing unfair in any of this.

 

67. Again even if the witness statements had not been provided in full, it was clear that at the initial disciplinary hearing the claimant had been given sufficient detail to know what he was being charged with and that he could have been under no illusion and in no confusion about what was being said by others about that incident. That said, the respondent decided to give him all those witness statements and to afford him a full opportunity to respond either orally or in writing. As indicated, the tribunal can see nothing wrong in this procedure and could not conclude that the respondent has in any way acted unfairly in terms of the procedure afforded to the claimant.

 

68. Furthermore, the evidence put forward by Ms Friel and by Ms Hegarty supported the evidence put forward by Mr Owens. A reasonable employer was entitled to prefer the version of events put forward by Mr Owens and to conclude that the claimant had been guilty of misconduct. Apart from the existence of corroboration, the claimant had not complained for two days about what he alleged was a violent and aggressive outburst from a subordinate. A reasonable employer was entitled to conclude that such a delay would have been unlikely if the claimant's version of events had been correct. This is a case of a reasonable procedure, indeed an excessively thorough procedure, leading to a reasonable belief in guilt.

 

69. The claimant argued that the respondent had not been reasonable in accepting Mr Owens' evidence because he had told the respondent on 3 February 2015 that he had received an abusive text from the claimant and that he "had to inform PSNI to see where I stood". The claimant stated that the PSNI had no records of any such report and that that therefore established that Mr Owens had been a liar and incapable of belief. However, the record of the meeting between Mr Owens and Ms Kelly and Ms Sands on 3 February 2015 makes it plain that the PSNI had told him that they couldn't do anything because there had been only one text message. If there had been two text messages they would have classed it as harassment. On that basis it was entirely probable that no complaint would have been recorded and the matter would have been dealt with informally. It was therefore not surprising that there was no official record of a complaint. There was nothing in this incident that would have required a reasonable employer to have disbelieved at that point everything that Mr Owens had said and which had been corroborated by Ms Friel and Ms Hegarty.

 

70. In short the substance of the claimant's case is that Mr Owens lied, Ms Friel lied and Ms Kelly and perhaps others in the respondent organisation colluded to deny him a proper chance to respond to the disciplinary action. There was no evidence to support any of that. The procedural queries put forward by the claimant have no merit. His complaint against Mr Owens had been considered properly. He had received all relevant witness statements and had commented on them. This was a straightforward case where the employer acted fairly and where it had been entitled to conclude that the claimant had been guilty of verbal and physical aggression against Mr Owens. The witness statements by Ms Friel, Ms Hegarty and Mr Owens were capable of belief by a reasonable employer. He had not been treated differently or unfairly during the investigation or during the disciplinary process. Mr Owens had worked elsewhere and the claimant had worked in his usual location. The slow progress of the investigation and disciplinary procedure was regrettable but did not adversely impact on the fairness of the decision making process. There had been no ulterior motive for his dismissal.

 

71. As far as the proportionality of the penalty was concerned, this was a situation where the employer had reasonably concluded that the claimant had been guilty of verbal and physical aggression against a junior employee. That employee had suffered from heart problems. The aggression took place in a residential home for vulnerable adults. Dismissal was therefore a reasonable penalty. In fact, it was the only penalty a reasonable employer could have imposed.

 

72. The complaint of unfair dismissal is therefore dismissed.

 

 

 

 

Vice President:

 

 

Date and place of hearing: 28 July 2015, Belfast

 

 

Date decision recorded in register and issued to parties: