Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1743/14

 

 

 

CLAIMANT:                      Stephen Brennan

 

 

RESPONDENT:                Amber Merchants Ltd

                                       

 

 

DECISION

 

The unanimous decisions of the tribunal are as follows:

 

(A)     The claimant’s unfair dismissal claim is not well-founded and accordingly that claim is dismissed.

 

(B)     The claimant’s notice pay claim is not well-founded and accordingly that claim is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Buggy

 

Members:                        Ms D Adams

                                        Mr J Magennis

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent was represented by Mr T Sheridan of Peninsula Business Services Ltd.

 

 

REASONS

 

1.       The claimant was employed by the respondent company (“the employer”) as a machine operator at its waste recycling plant in Kennedy Way Industrial Estate in Belfast.  He was employed there for several years.

 

2.       During the course of his employment, on 19 June 2014, an incident occurred.  As a result of that incident, the claimant was dismissed during a disciplinary hearing,  which was held on 30 June 2014.  He was dismissed without notice.

 

The claims

 

3.       Originally, the claimant’s claims in these proceedings included a claim for holiday pay.  However, the parties have resolved their differences in relation to the holiday pay claim.

 

The facts

 

4.       Accordingly, at the time of the main hearing of these claims, the only claims being pursued by the claimant were a claim for unfair dismissal and a claim for notice pay.

 

5.       The employer employed the claimant as a machine operator.  His job was to operate a lifting machine to lift cardboard, paper and plastic waste into a shredder, which was then conveyed onto a belt for processing.

 

6.       The employer operates a recycling-led waste management company, whose services include waste collections and recycling solutions.  The claimant was employed as a general operative.  In that capacity, he usually operated the loading grabbing machine.

 

7.       On 19 June 2014 he was working a shift from 6.00 am until 4.00 pm.  (The night shift finished around 5.30 am or 6.00 am on that day).

 

8.       During that shift, as during most shifts, the claimant’s job was to operate the load grabbing machine, by picking up waste and putting it into the shredder.  Once the waste went through the shredder, it then went on to a conveyer belt and, ultimately, was divided into various categories of waste.

 

9.       On the morning of 19 June 2014, at about 10.00 am, the claimant brought it to the attention of a supervisor, Mr John Johnston (“Mr Johnston”), that the shredding machine had stopped.  Mr Johnston investigated the area and found a large concrete slab on the “in-feed conveyor belt to the trommel”.  (That’s the conveyor belt which distributes waste after the waste has been through the shredder.  Because of its immense weight, the slab had to be removed by machine.

 

10.     Because the slab was on the conveyor belt, the conveyor belt had tripped out and stopped. 

 

11.     The claimant was asked by Mr Johnston how the slab had come to be placed there.  The claimant said he didn’t know how it had come to be placed there. 

 

12.     At noon on 19 June 2014, the claimant was told that he was being suspended until the employer investigated how the block had got on to the conveyer belt.

 

13.     A disciplinary hearing was held on 23 June 2014.  It was conducted by a manager within the employer, Mr Alan Sproule.  The claimant was accused in those disciplinary proceedings of having deliberately placed the slab on the conveyor belt.  He denied it.

 

14.     During the course of the disciplinary hearing, Mr Sproule had available to him statements from Mr Mark McIvor (a supervisor). 

 

15.     The statement from Mr McIvor, which Mr Sproule regarded as truthful, included the following assertions. 

 

16.     Barry O’Toole a plant operator, had phoned Mr McIvor to asked him to come down to the yard and look at the slab of concrete that was sitting half way up the “trammel in-feed belt” which, under the weight of the slab, had tripped out and stopped.  Mr Johnston was already there by the time Mr McIvor got there.  Apart from the claimant, nobody else had been working in the relevant area, at any time during the claimant’s shift on that morning.

 

17.     During the disciplinary hearing, Mr Sproule also had available to him the statement of Mr Johnston.  Again, Mr Sproule accepted that all of the assertions in John Johnston’s statement were in substance true.  The latter statement included the following assertions.

 

18.     During mid-morning on 19 June 2014, the claimant waved at Mr Johnston, saying that the shredder had stopped.  Mr Johnston went to see what the problem was and noticed that the slab was on the in-feed belt to the trommel.  He saw that it was a large slab, approximately 1.5 square metres.  He had to arrange for it to be moved by machine.  He estimated the weight of the slab to be approximately 300 kilogrammes.  If the slab had continued up the belt and into the sorting system it would have caused serious damage, likely to result in long downtime and thousands of pounds of repair costs.  Mr Johnston approached the claimant and asked him how the slab managed to get on to the belt and the claimant said that he didn’t know how it had got onto the belt.

 

19.     In a letter dated 24 June 2014, the claimant was notified of the disciplinary hearing, and of the disciplinary charge.  In essence, the disciplinary charge was that he had deliberately placed the slab on to the conveyer belt without authority or reasonable excuse.

 

20.     We are satisfied that the letter of 24 June 2014 did enclose copies of the Johnston and McIvor statements.

 

21.     At the disciplinary hearing, the claimant was self-represented.  During the disciplinary hearing, the claimant again denied that he had placed the slab on the conveyor belt.  He suggested that it might have been there since before the beginning of his shift.  He suggested that the employer should examine CCTV footage with a view to ascertaining whether any unauthorised personnel were in the vicinity at any relevant time.

 

22.     Mr Sproule decided that the claimant had indeed placed the slab on the conveyor belt.  He decided that the appropriate sanction, for that act of misconduct, was dismissal.

 

23.     Mr Sproule did not accept that the slab might have been on the conveyor before the claimant came on duty on 19 June 2014 because he was sure that the conveyor belt wouldn’t have worked for any lengthy period after the slab was placed on the belt (because of the weight of the slab).  Mr Sproule did not consider that any CCTV footage was relevant, because he was satisfied that none of the CCTV viewers covered the area in question.

 

24.     Mr Sproule, saw and heard the claimant give his explanations during the disciplinary hearing, and did not consider the claimant’s account to be convincing.

 

25.     The letter of dismissal was issued on 1 July 2014.  That letter of dismissal made it clear to the claimant that he had the right to appeal against the decision.  The claimant did appeal, in a letter dated 7 July 2014.  Despite the protestations of the respondent, it is clear that the appeal letter was promptly delivered to the employer, for the attention of Mr Byrne, although it may not have been brought to his attention.  The letter did not provide any details for grounds of appeal.  Instead, it contained the following:

 

          “In order that I may furnish detailed grounds of appeal I would now formally request that you provide me with precise written reasons for my dismissal.  I also request a copy of the disciplinary rules and procedures used, the record of the disciplinary hearing, the statements of John Johnston and Mark McIvor and copies of all investigations carried out from the date of my suspension until the date of my dismissal.  I also wish to view the CCTV footage and CCTV records for 19 June 2014.  Although the letter of invitation to the disciplinary hearing refers to the statements of Messrs McIvor and Johnston and to the disciplinary rules and procedures, those documents were not in fact enclosed”.

 

26.     On 12 August 2014, the claimant’s solicitors wrote to the respondent, enclosing a copy of the letter of appeal of 7 July.

 

27.     In response to the 12 August letter, the respondent, while continuing to (incorrectly) deny that they had ever received the letter of 7 July, agreed to hold an appeal hearing.  That was notified to the claimant in a letter dated 25 September 2014.  That letter included copies of the McIvor and Johnston statements and a copy of the company’s disciplinary rules and procedure (which information had already been provided to the claimant when he had originally been invited to the first disciplinary hearing).

 

28.     The claimant did not attend the appeal hearing.  The claimant asked for a postponement of that appeal hearing.  The postponement was granted.  The rescheduled hearing was due to take place on 4 November 2014.  The claimant did not attend on that date.  Accordingly, no appeal process was ultimately completed.

 

29.     In the interests of readability, and with a view to minimising avoidable repetition, some additional findings of fact are included in other parts of this Decision.

 

The evidence

 

30.     We received oral testimony in this case.  The key witnesses were Mr Johnston,  Mr Sproule and the claimant. 

 

31.     We also saw the documents which were contained in a bundle, which was provided to us.  We also saw some miscellaneous documents, including photographs of part of the relevant workplace in which the relevant incident occurred.  We also saw the statements of Mr McIvor and Mr Johnston which had been considered during the course of the 26 June disciplinary hearing.

 

Unfair dismissal

 

The issues

 

32.     On the basis of what they told us, we were satisfied that there had been no failure on the part of the employer to comply with the requirements of the statutory dismissal procedures.

 

33.     The claimant told us that he accepts Mr Sproule believed that he was guilty of the relevant misconduct.

 

34.     During this hearing, the claimant accepted that if the employer had been entitled to conclude that he was guilty of the relevant disciplinary offence, dismissal was not a disproportionate sanction.

 

35.     Accordingly, in the circumstances of this case, the issues which had to be addressed in the context of the claimant’s unfair dismissal claim were confined to the following:

 

(1)      When the employer decided to dismiss, had it carried out a reasonable and adequate investigation, and a reasonable and adequate disciplinary process (bearing in mind that, in the present context, the question is whether or not the employer has stepped outside the range of reasonable responses, in relation to any unreasonableness or inadequacy)?

 

(2)      In light of all the information and evidence available to it, could any reasonable employer, acting inside the range of reasonable responses, have concluded, as this employer did conclude, that the claimant was guilty of the relevant disciplinary offence?

 

The law

 

36.     Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”)  provides that, in determining, for the purposes of the unfair dismissal legislation, whether the dismissal of an employee is fair or unfair, it is for the employer to show the reason for the dismissal and that it is potentially fair.  Obviously, a reason relating to the conduct of the employee is a potentially fair reason.  Because the claimant has accepted that the employer dismissed him because of its genuine belief as to his guilt in respect of the relevant misconduct, those requirements of Article 130(1) are met in this case.

 

37.     Article 130(4) of the Order provides that, where the employer has shown the reason for dismissal and has also shown that the reason is a potentially fair reason:

 

                    “(4) ...     the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

 

                                  (a)  depends on whether in the circumstances ... 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”.

 

38.     In considering (in the context of Article 130(4) of the Order) whether an employer acted reasonably or unreasonably in deciding to dismiss, a tribunal should generally follow the guidance which was set out  in British Leyland UK Ltd v Swift [1981] IRLR 91.  In that case, Denning MR set out the correct test in the following terms:

 

                    “Was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair.  It must remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another might reasonably take a different view.  One would quite reasonably dismiss the man.  The other would quite reasonably keep him on.  Both views may be quite reasonable.  If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him”.

 

39.     In considering the Article 130(4) question, we must consider the reasonableness of the relevant employer’s conduct, not whether we (the members of this tribunal) ourselves consider the dismissal to be fair.  Furthermore, in judging the reasonableness of the relevant employer’s in conduct, we must not substitute our own decision (as to what would have been the right course to adopt) for that of the employer. 

 

40.     Instead, in deciding the unfair dismissal issue, the function of this tribunal, as an industrial jury, is to determine whether in the particular circumstances of this case the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within that band, the dismissal is fair; it the dismissal falls outside that band, it is unfair.  (See “Harvey on Industrial Relations and Employment Law”, at paragraph 973 of Division D1). 

 

41.     That range of reasonable responses test (as described above) applies equally to the procedural aspects of a dismissal.  Therefore, the objective standards of the reasonable employer have to be applied in respect of the procedural aspects of the dismissal, (just as they would have had to be applied in relation to the question of whether or not dismissal was a proportionate sanction, if the latter issue was in dispute between the parties).  So this tribunal could not properly substitute its own opinion as to what was a reasonable and adequate investigation, or as to what was a reasonable and adequate disciplinary process.  Instead, on each of those questions (on the question of whether there was a reasonable inadequate investigation, and on the question of what was or whether there was a reasonable and adequate disciplinary process) we have to apply the objective standard of the reasonable employer. 

 

Conclusions

 

42.     During the course of this hearing, the only investigative deficiency to which the claimant could point was the alleged failure on the part of the employer to adequately investigate the availability of CCTV footage.  However, having heard the evidence and submissions on that aspect of the matter, on both sides of this case, we have concluded that it is unlikely that any useful evidence would have been obtained if the employer had examined any available CCTV footage (in view of the siting of the various cameras).  Accordingly, we are sure that in omitting to examine any CCTV footage, before deciding on dismissal, the employer did not step outside the “range of reasonable responses”.

 

43.     Obviously somebody put the slab on the belt.  It was highly unlikely to have been done before the claimant’s shift began on 19 June because the weight of the slab was likely to have stopped the belt running, very soon after the slab was put on to it.  Accordingly, it was reasonable of Mr Sproule to conclude that the slab was put on to the belt during the claimant’s shift.  Because of the weight of the slab, it could only have been put onto the belt by somebody using machinery.  Throughout the claimant’s shift, the only relevant machinery close to the scene of the incident was machinery which was under the control of the claimant.  During the course of the disciplinary hearing, the claimant denied that he had put the slab on the conveyer belt.  Mr Sproule saw and heard him make those denials, and was in a good position to decide whether he found those denials to be convincing. 

 

44.     Against that background, and for those reasons, in our view the employer did not step outside the range of reasonable responses in concluding that the claimant did put the relevant slab onto the conveyor belt. 

 

45.     For those reasons, we conclude that the claimant’s unfair dismissal claim is not well-founded. 

 

Notice pay

 

46.     As we have already made clear above, in deciding whether the claimant’s unfair dismissal claim was well-founded, our own views as to the claimant’s guilt or innocence (in relation to the placing of the slab on the conveyor belt) were irrelevant.  However, in the context of the claimant’s notice pay claim, we must arrive at a conclusion, on the balance of probabilities, as to whether he did or did not put the slab onto the conveyor belt.  Please note: we do not have to be certain on that issue, and we do not have to decide that issue on the basis of there being no reasonable doubt as to the claimant’s guilt.  Instead, all we have to decide is whether, on the balance of probabilities, we are satisfied that the claimant did indeed carry out the relevant act of misconduct. 

 

The law

 

47.     Article 118 of the Order provides that, as a general rule, an employer is required to give an employee seven weeks’ notice of termination of that employee’s employment, if that employee has continued in his service for seven years or more.  There are exceptions to that general rule.  In the circumstances of this case, the only relevant exception is the following. 

 

48.     The duty to give notice does not arise if there has been repudiatory conduct on the part of the employee.  In the context of wrongful dismissal, such repudiatory conduct is usually referred to as “gross misconduct”.  In deciding whether an allegation of gross misconduct, or of generally repudiatory conduct, is made out, the tribunal has to decide for itself what actually happened (as distinct from merely deciding whether an employer had reasonable grounds for that employer’s belief as to what happened). 

 

49.     The concept of “gross misconduct”, in the sense in which that term is used in the context of notice pay, has never been defined in legislation.  Instead, the scope of that concept has emerged from the case law. 

 

50.     In Neary v Dean of Westminster [1999] IRLR 288, Lord Jauncey of Tullichettle analysed the case law on common law gross misconduct.  At paragraph 22 of his judgment he concluded, in the context of a case in which it was being alleged that the claimant had breached an implied “trust and confidence” term of the employment contract, that there will not be gross misconduct (justifying dismissal) at common law unless the conduct of the relevant employee has undermined the trust and confidence between an employer and employee to such an extent that the employer should no longer be required to retain the employee in his employment. 

 

51.     Lord Jauncey made it clear that he regarded gross misconduct as necessarily involving a repudiatory breach of the contract of employment, when he commented (at paragraph 20 of the judgment) as follows:

 

                    “The question of whether there has been a repudiatory breach of that duty justifying instant dismissal must now be addressed ...”

 

          Therefore, in deciding whether gross misconduct at common law has occurred, the acid test is whether or not the relevant employee, through his behaviour, is to be regarded as having engaged in contractually repudiatory conduct.  So, in essence, gross misconduct has ceased to be an exotic and distinct species of termination, all on its own; instead, the concept of gross misconduct is now recognised as being merely an aspect of the overall law of contractual repudiation. 

 

52.     The implications of the foregoing are as follows:

 

(1)            In deciding whether particular conduct constitutes gross misconduct at common law (which would entitle the employer to dismiss without notice), it may well be important to look at how reprehensible the conduct is. 

 

(2)            It may be relevant to consider whether, and to what extent, the conduct has actually undermined trust and confidence between the employer and employee. 

 

Conclusions

 

53.     We are satisfied, on the balance of probabilities, that the claimant was the person who placed the slab on the conveyor belt.  We are so satisfied, against the following background and for the following reasons.  We carefully considered the claimant’s demeanour and manner of giving evidence, when he denied, during this hearing, that he was the person who had placed the slab on the conveyor belt.  Like Mr Sproule, we have arrived at the following conclusions.  First, it seems unlikely that the slab was on the conveyor belt when the claimant started work on the morning in question (because the likelihood is that the conveyor belt would have grinded to a halt very soon after the placing of the relevant slab on it, and because the claimant, from his vantage point in the machine, could hardly have failed to have noted such a large slab in such a prominent place).  Secondly, the claimant was the only person who had charge of a suitable lifting machine in the immediate vicinity of the relevant conveyor belt. 

 

54.     We are satisfied that the placing of the slab on the conveyor belt was an act of gross misconduct which was repudiatory conduct (in the sense in which that term was used above).  The placing of the slab created an unnecessary and entirely avoidable risk of serious damage.  A failure on the part of the claimant to “own up” to the fact that he had put the slab on the belt had the effect of exacerbating the damage to trust and confidence which the placing of the slab had done in the first place. 

 

General comments

 

55.     We have had to decide this case on the basis of the documents which were made available to us by the parties, and on the basis of the oral testimony which was made available to us. 

 

56.     It must be noted that, in deciding this case, we have not had to arrive at conclusions as to the claimant’s guilt (in relation to the placing of the slab) on the basis of 100% certainty; nor indeed, have we had to arrive at a conclusion on that point, on the basis of being satisfied beyond a reasonable doubt.  Instead, our conclusions on that point, as set out above at paragraph 53 above, are based on the balance of probabilities.  (In other words, on the basis of the documents which have been made available to us, on the basis of the oral testimony which we have received, and on the basis of the arguments which have been made to us, we have merely had to decide whether it is more likely than not that the claimant did place the slab on the belt). 

 

 

 

 

 

Employment Judge:      

 

 

Date and place of hearing:  2 December 2014, Belfast.               

 

 

Date decision recorded in register and issued to parties: