Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    2595/14

 

 

 

CLAIMANT:                      Gerard McCorry    

 

 

RESPONDENT:                Island Salads Limited

                                       

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and is not entitled to a remedy for the respondent’s failure to provide a statement of initial employment particulars in relation to his amended claim.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Crothers

 

Members:                        Mrs D Adams

                                        Mr P McKenna

 

Appearances:

 

The claimant was present and was represented by Mrs P McGuinness.

 

The respondent was represented by Mr T Martin.

 

 

The Claim

 

1.               The claimant claimed that he was unfairly dismissed by the respondent.   He also sought to amend his claim to include a claim for failure to provide initial particulars of employment. 

 

The Issues

 

2.               The issues before the tribunal were as follows:-

 

 

(1)           Was the claimant unfairly dismissed by the respondent?

 

(2)           Should the claimant’s claim be amended to include a claim for failure to provide a statement of initial employment particulars?

 

Sources of Evidence

 

3.              (i)       The tribunal heard evidence on behalf of the respondent from
Conor Maguire, Director, and Kevin McDonnell, retired Human Resources Manager (not previously employed by the respondent).  The tribunal also heard evidence from the claimant and considered witness statements together with an agreed bundle of documents.  It also received, subject to liability, an agreed schedule of loss.

 

(ii)      An agreed list of documents considered at the disciplinary and appeals hearing is annexed to this decision.

 

4.       (1)      During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – 2009 NICA 47. 

 

In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-

 

[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]

 

                              “Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…

 

                                The judgement as to the weight to be given to evidence was for the      Disciplinary Panel and not for the tribunal.  In this instance it appears      that the tribunal has strayed into the forbidden territory of making its          own determination of the evidence.”

 

          (2)      The claimant’s representative did not contend before the tribunal or in her cross-examination of the respondent’s witnesses that the minimum statutory disciplinary procedures had not been complied with by the respondent.  The tribunal however notes her written submissions in this regard and the corresponding submissions from the respondent’s representative.

 

Amendment of the Claim

 

5.       (i)       In his claim form to the tribunal presented on 11 November 2014, the claimant claimed that:-

 

                            “The company did not have a company handbook nor were there procedures and policies in place as guidance for employees.  Therefore I was not aware that the use of bad language in the workplace could lead to disciplinary procedures being activated against me”.

 

          (ii)      The claimant’s representative admitted that the omission of a specific reference to the respondent’s failure to provide a contract/statement of initial particulars of employment was an error on her part.  The issue of an amendment was raised by the tribunal itself.  Both sides had considered a draft schedule of loss which contained a remedy section under this heading, and no issue was raised by the respondent in relation to its inclusion.

 

          (iii)      There was no dispute that a statement/contract had not been provided by the respondent to the claimant. 

 

          (iv)     Mrs McGuinness relied on the balance of justice and hardship ground in her application for an amendment.  Mr Martin resisted the application on behalf of the respondent.  These issues are further addressed in the submissions annexed to this decision. 

 

          (v)      In relation to amendments a distinction has to be drawn between amendments which are merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as the original claim; and amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all. 

 

Harvey on Industrial Relations and Employment Law (“Harvey”) states at T(312.04) as follows:-

 

“It is only in respect of amendments falling into category (iii) – entirely new claims unconnected with the original claim as pleaded – that the time limits will require to be considered.   In that situation, the tribunal must consider whether the new claim is in time and, if it is not, whether time should be extended to permit it to be made (Selkent Bus Co Ltd –v- Moore [1996] ICR 836 at 843H).  In order to determine whether the amendment amounts to a wholly new claim, as opposed to a change of label, it will be necessary, as a matter of construction, to examine the case as set out in the original application to see if it provides the necessary ‘causative link’ with the proposed amendment (see Housing Corpn –v- Bryant [1999] ICR 123, CA).  In that case, the failure of the claimant to make any reference in her unfair dismissal claim to alleged victimisation defeated her subsequent application to amend the originating application to include a victimisation claim under the SDA, s4.  According to Buxton LJ, the absence of a causative link in the application was fatal to the proposed amendment, which was ‘effectively an entirely new claim, brought well out of time’.  Likewise, in Harvey v Port of Tilbury (London) Ltd (1999) IRLR 693, [1999] ICR 1030, EAT, a claimant who brought an unfair dismissal complaint, alleging unfair redundancy selection, was held not to be able to amend out of time by adding a claim of disability discrimination under the DDA s 8.  Again, the basis of the refusal was that the proposed amendment was the addition of an entirely new cause of action unconnected with the original claim.” 

 

Harvey continues at 312.06 as follows:-

 

“Although the decisions in the above cases seem to suggest that, where an entirely new claim is being advanced by way of amendment, the critical question is whether it is in time and, if not, whether an extension should be granted under the statutory ‘escape clause’ relevant to that claim, other divisions of the EAT have held that, even in the case of an entirely new claim made out of time, there is a residual discretion to allow the amendment to be made on the basis of the hardship/injustice criteria mentioned in Selkent, and in British Newspaper Printing Corpn (North) Ltd v Kelly [1989] IRLR222, CA (see para [314]), rather than on the statutory basis.  Thus in Lehman Brothers Ltd v Smith (EAT/486/05, 13 October 2005), Judge Peter Clark upheld a tribunal decision allowing such an amendment to be made on this ground even though the relevant statutory criterion for granting an extension of time was reasonable practicability.  And in Transport and General Workers Union v Safeway Stores Ltd (EAT/92/07, 6 June 2007), Underhill J allowed a new out-of-time claim under the consultation provisions of TULRA and TUPE to be made by way of amendment, and in doing so applied the hardship/injustice test, rather than reasonable practicability, which again was the statutory basis for extending time.  Both of these decisions relied on Selkent and Kelly, where Lord Donaldson MR endorsed the seven-point procedure he set out in Cocking v Sandhurst, below, as authority for the proposition that the hardship/injustice test takes precedence over the relevant statutory test.  According to Underhill J in the Safeway case, ‘the position on the authorities is that an employment tribunal has a discretion in any case to allow an amendment which introduces a new claim out of time’ (para 7), though he did add:  ‘No doubt the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be discretionary consideration and not a rule of law’ (para 13).”     

 

Conclusions on the Amendment Issue

 

          (vi)     Having considered the submissions from both sides, together with the relevant principles of law, and findings of fact, the tribunal concludes that the amendments sought is one which is linked to, or arises out of the same facts as the original claim.  The claimant’s allegations relating to the absence of a company handbook and procedures and policies (which would be normally be referred to in the relevant statement/contract) create a causal link with the proposed amendment.  Time limitation issues do not need to be considered.  In the alternative the tribunal is satisfied that an amendment should be allowed on the balance of justice and hardship ground.  However, in this case, by virtue of Article 27 of the Employment (Northern Ireland) Order 2013, the claimant is entitled to an award only if he succeeds in establishing unfair dismissal.

 

Findings of Fact

 

6.       Having considered the evidence insofar as same related to the remaining issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

 

(1)            The claimant was employed by the respondent as a process operator from 1 April 2009 until the effective date of termination of his employment by way of summary dismissal on 15 August 2014. 

 

(2)            In the correspondence dated 24 July 2014 convening a disciplinary hearing the claimant was made aware of the following allegations to be considered at the hearing:

 

“1.      On Friday 11^th July 2014 you verbally abused a member of staff, Patricia McGarrell by calling her a “fucking asshole”, and when she queried you on that remark you told her to “fuck off”.

 

2.              On the same date, having learned that Patricia McGarrell had made the complaint against you concerning alleged verbal abuse, you approached her and called her a “fucking liar”.

 

 

                    The claimant was advised in the correspondence that such conduct could be considered to be gross misconduct and could result in summary dismissal from his employment.  He was further advised that he would be given every opportunity at the disciplinary hearing to present any information he may consider to be relevant together with his views/comments on the allegations.  He was assured that all such information would be given careful consideration in coming to a decision on the matter.  The claimant was also advised of his entitlement to be accompanied at the hearing by either a work colleague or an accredited Trade Union official.  However the claimant chose not to be accompanied by any such person at either the disciplinary or appeal hearings.

 

          (3)      Mr Teddy Martin, as an independent consultant, had previously been requested by Conor and Patrick Maguire, two directors of the respondent company, to investigate the complaint made by an employee, Patricia McGarrell against the claimant.  The tribunal carefully considered this investigation together with Mr Martin’s evidence before it.  It also considered all information and documentation, including statements, placed before the disciplinary and appeal hearings.  The conclusions in Mr Martin’s report were as follows:-

 

“From the information provided to me it is clear that Gerard McCorry:

 

1.                Called Patricia McGarrell ‘a fucking asshole’.

 

2.              Told her to ‘fuck off’ when she asked him if he had anything to say to her.

 

3.              Called Patricia McGarrell ‘a fucking liar’ when he learned that she had made a complaint against him”.

 

          (4)      In the course of the hearing before the tribunal, Mrs McGuinness made the case on behalf of the claimant that the terms of reference for the investigation were too narrow and, in particular, did not take into account any allegation reflected in both the disciplinary and appeal outcome letters that the claimant had used foul and abusive language towards Patricia McGarrell in a threatening and bullying fashion, particularly when he learned that she had made an official complaint against him.  Mrs McGuinness also addressed this aspect further in her oral submissions before the tribunal at the end of the hearing, and in her written submissions.

 

          (5)      The tribunal considers it appropriate to set out the disciplinary outcome letter dated 15 August 2014 as follows:-

 

 

“Dear Gerard,

 

Further to the Disciplinary Hearing on the 4^th [August] 2014, I have given careful consideration to all of the matters mentioned to me by yourself and by the person who wrote to me on your behalf.

 

In doing so I noted the following matters:

 

1.       In your letter to me on the 30^th July 2014 you expressed concerns about my ability to come to a fair and balanced decision.  You commented ... that you respected me as a person and as a manager.  When this matter was first brought to my attention by Patricia McGarrell, I asked the office secretary to write down the details of the complaint.  This was not done and I arranged for an independent consultant to investigate the complaint and report his findings.  I have played no further part in the matter until I received the Report from the independent consultant, and I have not spoken to Patricia McGarrell about the matter at any time from the date on which she first complained to me.  Bearing in mind the respect you stated you hold for me, I am sure you will accept my assurances as set out above.

 

2.       You state you ‘did not direct your language to Patricia when you said ‘fucking ass hole’ and ‘fuck off’ and your language was aimed more at her actions and not directly at her.  I do not understand your statements in this respect – if you were not addressing Patricia McGarrell as a; f...ing as....’ and you were not telling her to ‘f...off’ then [who] were you calling that name and who were you addressing your second remark to?

 

3.       When you learned that Patricia McGarrell had potentially made a complaint against you, you confirmed that you went to the canteen and called her a ‘fucking [liar]’.  You now say you asked her about the nature of the complaint.  You did not mention this during the course of the investigation and [your] statement made for the purposes of that investigation records ‘I went to the canteen [where] Patricia McGarrell was sitting – I told her she was a ‘fucking [liar]’.

 

4.       You mention foul language and the workplace.  I totally disagree with you that it is common practice in [your] workplace for employees to call their work colleagues ‘f...ing as ....’ tell each other to ‘f... off and call each other ‘f...ing liars’.  As you know I am regularly on the shop floor and I consider I can speak with some experience in regard to these matters.

 

5.       You say that you have grave concerns that Patricia McGarrell is receiving more favourable treatment than you during this process just because she is female.  You have provided absolutely no grounds for this assertion.  So far as I am concerned all employees are treated equally within our work place.

 

6.       I accept that the Company has been remiss in not providing all of its employees with a written statement of their terms and conditions of employment.  Advice has been [taken] on this matter and steps are underway to correct this omission.  The absence of such a statement does not preclude the company from initiating a disciplinary process against an employee who it considers may have committed an act which it believes could constitute misconduct.  It is also for the company to decide the nature and level of the alleged misconduct.  In this particular case the company has taken advice and guidance from the Labour Relations Agency’s Code of practice on disciplinary and Grievance issues.

 

7.       You have referred to others matters which you regard as important.  In particular you refer to Patricia McGarrell’s contractual status with the company and the possibility of a legal challenge by either her or by yourself.  Your statements in this regard could be interpreted as a threat.  I wish to assure you that my judgement in this matter has not been, nor will it be influenced by any such threat, rather it will be on the facts of the matter as presented to me. 

 

8.       With regard to the matter of complaints made against you by Patricia McGarrell in the past, and allegations regarding a [remark] made to you [some] time ago.  The company has received no formal written complaints from Patricia McGarrell in the past.  She has on a number of occasions in the past mentioned her concerns about alleged treatment of her but she has not put any complaints in writing and consequently no action was taken by the company.  Likewise, you did not mention your concern to the company regarding the matter which allegedly occurred some time ago.  In these circumstances I consider it is not relevant to take these matters into account in determining the issues at this time.

 

                              Having considered all of the information provided to me I have come to the conclusion that you used foul and abusive language towards Patricia McGarrell which is totally unacceptable in our workplace.  It is my view that you did so in a threatening and bullying fashion particularly when you learned she had made an official complaint against you.

 

                    I consider that your conduct in these regards constitutes gross misconduct and warrants summary dismissal, i.e. dismissal without notice or without payment in lieu of notice.  The termination of your employment with the company takes effect from the date of this letter.  Salary will be paid up [to] to-day’s date and all relevant documents will be sent to you [within] the next five working days.

 

                              You have the right of appeal against this decision.  You should notify me in writing within five working days from the date on which you received this letter if you wish to exercise your right of appeal, and you should state the grounds for your appeal.

 

Yours sincerely

Conor Maguire

Director”

 

 

          (6)      In his undated letter of appeal the claimant contended that the dismissal outcome was grossly disproportionate to the alleged offences and denied bullying or threatening anyone.  He also complained that he was not questioned about such an allegation during the disciplinary hearing nor had he been questioned about such an allegation during his whole time with the company.  In relation to procedure, the claimant asserted that the respondent failed to take reasonable steps to inform him about what does and does not constitute gross misconduct and contended that even at the stage of his appeal letter, he still did not know what the company’s disciplinary procedure was.  He also relied on his clear disciplinary record and felt that it should have been taken into account.  He complained of less favourable treatment because he was a man and asserted that the respondent simply believed all the allegations made against him by Patricia McGarrell in the absence of reasonable evidence or witness statements.  The claimant also reflected his feeling in this letter of appeal that management’s ability to carry out a fair investigation as well as arriving at a fair decision was compromised due to the close relationship which management had with Patricia McGarrell.  The claimant did not raise the issue in his appeal letter that he had been stopped from making his case in full at the disciplinary hearing, as alleged in his evidence before the tribunal.  He made a similar allegation about the appeal hearing in his evidence before the tribunal.  The tribunal is not however satisfied that there is substance in these claims.  Furthermore, he did not refer to the alleged use of foul language in the workplace which had been refuted by Conor Maguire in paragraph 4 of the disciplinary outcome letter.  Moreover, this issue was not addressed specifically in cross-examination of Conor Maguire at the hearing before the tribunal.

 

          (7)      The claimant’s case had been previously articulated clearly in correspondence to the respondent from his solicitor dated 31 July 2014, which the tribunal considered.  The alleged use of foul language in the workplace was referred to in that correspondence.

 

(8)      The claimant objected to the individual nominated to conduct the appeal   hearing.  As reflected in correspondence from the claimant’s solicitor to the respondent dated 4 September 2014, the respondent was making efforts to source another individual to deal with the appeal.

 

The claimant set out his objections to the person nominated to hear his appeal in correspondence to the respondent.  Conor Maguire explained to him in his response that the person nominated to hear the appeal was his wife’s brother and therefore his brother-in-law.  Conor Maguire further stated that this individual had no interest in the respondent company and that he had never held any interest in the company.  In correspondence dated 6 September 2014 Conor Maguire notified the claimant of the appeal to be heard on 11 September 2014 by Kevin McDonnell.  He was described as an independent employment relations consultant who had no connection or interest in the company and who was not related in any way to the directors or to any of their family members.  It is also pointed out to the claimant that Mr McDonnell had not been involved at any stage in the matter under appeal.

 

(9)      Conor Maguire’s wife, Mrs Ann Maguire, made handwritten notes of both hearings.  The claimant signed the disciplinary hearing notes along with Ann Maguire.  He did not sign the appeal hearing notes.  The claimant had contended, as reflected in the notes of the disciplinary hearing, that Patricia McGarrell was rushing and in a bad temper on the date in question.  He denied at further hearings that the first two remarks referred to in the correspondence of 24 July 2014 (supra) were directed to Patricia McGarrell.  This is referred to in both outcome letters.  However the claimant did admit to the fact that the third remark was made and was directed to Patricia McGarrell.  The tribunal is satisfied that Conor Maguire’s conclusion that the remark made by the claimant in the canteen to Mrs McGarrell calling her “a fucking liar” was made in a threatening and bullying fashion, constituted part of his reason for dismissing him summarily for gross misconduct and flowed from the evidence in relation to the language used on this occasion.  The matter was further addressed by Mr McDonnell at the appeal hearing, as set out at (10) below.

 

(10)    In his very comprehensive appeal outcome letter dated 18 September 2014 Mr McDonnell, under the heading of “DECISION”, states as follows:-

 

 

“The company dismissed you on 15^th August 2014 for what the company considered to be gross misconduct i.e. the use of foul and abusive language towards employee Patricia McGarrell and the use of same in a threatening and bullying fashion after you learned that she had made an official complaint against you.

 

My findings and decision are as follows:

 

1)              A thorough and sufficient investigation into the allegations was conducted as is evidenced by the use of an outside consultant to carry out the investigation and the comprehensiveness of the witness statements.

 

2)              The employer’s decision to take disciplinary action was reasonable, based on the evidence which resulted from that investigation.  In all of the allegations there were many areas which were not in dispute, the main ones being that the words “a fucking asshole”, “fuck off” and “fucking liar” were used by you.  Regarding the first allegation you have disputed the nature of the remarks, “a fucking asshole” and “fuck off” saying that they were not spoken to Mrs McGarrell directly.  I am not convinced of your assertion that these remarks were not directed at Mrs McGarrell.  When she heard the words “a fucking asshole” she spoke to you and you responded to her question by saying “fuck off”.  This is not disputed.  In the absence of any other person being there, apart from one person who was a considerable distance away, I must draw the conclusion that your remarks were directed at Mrs McGarrell, and not spoken generally as you have stated and I believe that they were abusive in nature.

 

The circumstances of the second allegation when you called Mrs McGarrell “a fucking liar” are not in dispute.  You went to seek out Mrs McGarrell, on your own admission, and asked her about the nature of the complaint.  When she refused to answer you called her a “fucking liar”.  This confrontation followed on from you having been told that Mrs McGarrell had made a complaint against you.  You admitted during the hearing that you were very angry and your letter of 30^th July 2014 states that you were “very upset” and “feeling very vulnerable”.  I have no doubt that the act of confronting Mrs McGarrell in the canteen constituted threatening and bullying behaviour.  Mrs McGarrell had a right not to be subjected to this behaviour and I firmly believe that your behaviour constituted gross misconduct.

 

3)              My findings are that the disciplinary action taken by the company was reasonable.  Mrs McGarrell exercised her right to make a complaint and was threatened and bullied, by you, for doing so.

 

4)              I find that the company has complied fully with all their requirements in respect of this dismissal.

 

5)               No new evidence was offered at the appeal hearing.

 

 

Further to the above I wish to inform you that your appeal against dismissal is rejected.

 

I have enclosed copy of the handwritten notes made at the meeting.

 

Yours faithfully

 

Kevin McDonnell

Employment Relations Consultant”

 

 

          (11)    During the hearing before the tribunal, the claimant made the case that the investigation was inadequate for the further reason that other individuals ought to have been interviewed including Jane McCarthy who was requested by Conor Maguire to take a statement from Mrs McGarrell after the matter arose on 11 July 2014 and Mr Haddock who was in the canteen when the third remark was made.  This is further addressed in the submissions annexed to this decision, which were carefully considered by the tribunal.

 

The claimant, at both the disciplinary and appeal panels, and before the tribunal, made the case that foul language was commonplace within the factory and occurred on a daily basis.  As previously stated in this decision, this was refuted by Conor Maguire in paragraph 4 of the disciplinary outcome letter.  However, at the appeal stage the claimant made the same allegation which is reflected in the appeal outcome letter in the following words:

 

 

“You were very adamant that foul language was commonplace within the factory and occurred on a daily basis and you had never known it to be misconduct.  Being unfamiliar with the makeup of the factory I asked you if there were many women working there and you said that the majority were women.  I asked if you had called any of them a fucking asshole or told any of them to fuck off within the last year or so.  You said that you were not bullying, you were not angry and you have never called any of the ladies fucking assholes or told them to fuck off.  You then questioned my independence and I said that I was trying to get a feel for workplace practices, bearing in mind that you said that the use of foul language was commonplace.  I told you that I wished to determine if calling someone a fucking asshole or telling them to fuck off was commonplace.

 

I referred you to your letter of 30^th July 2014 and your solicitor’s letter of 31^st July 2014 and asked why you would be willing to take a warning for the use of foul language when you had stated that foul language was commonplace and you were not aware that it constituted misconduct.  You said that you would prefer that to being dismissed”.

 

(12)    The tribunal carefully considered the factors taken into account at both the Disciplinary and Appeal hearings, and the weight given to the evidence at both hearings while at the same time considering the process as a whole.  Moreover the tribunal endeavoured at all times (including when clarifying certain points in the evidence before it), not to stray into the forbidden territory of making its own determination on the evidence. 

 

THE LAW

 

7.       (i)     Article 127 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides as follows:-

 

                          “127. – (1) for the purposes of this Part an employee is dismissed by the employer if … - (a) the contract under which he is employed is terminated by the employer (whether with or without notice).”

 

          (ii)    Article 156(2) of the Order provides as follows:-

 

                          “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”.

 

          (iii)    The Order further provides at Article 157(6) as follows:-

 

                          “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.

 

          (iv)   The law in relation to unfair dismissal in the context of misconduct is set out in Rogan as follows:-

 

                            “… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.

 

“130.― (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

 

(a)      the reason (or, if more than one, the principal reason) for the dismissal, and

 

(b)      that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2)      A reason falls within this paragraph if it—

 

…. (b)    relates to the conduct of the employee, ....

 

(4)      Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

 

(a)      depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b)      shall be determined in accordance with equity and the substantial merits of the case."

 

Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee.   If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.

 

[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.

 

“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.

 

[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

 

[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –

 

‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-

 

(1)    the starting point should always be the words of section 57(3) themselves;

 

(2)    in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

 

(3)    in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4)    in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

 

(5)    the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’

 

[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated - 

 

‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”

 

          At paragraph 26 of Rogan, Morgan LCJ states as follows:-

 

                    “The judgment as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal.  In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”. 

 

          Again at paragraph 27 of his judgment, Morgan LCJ states:-

 

                              “In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.

 

          In paragraph 28 he continues:-

 

                              “The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence.  None of this is an indicator of a lack of reasonable investigation”.

 

          Girvan LJ in paragraph 7 of his judgement states as follows:-

 

                              “The investigation was one which was reasonable in the circumstances.  It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”

 

SUBMISSIONS

8.       The tribunal heard oral submissions from both sides’ representatives on 30 January 2015.  It also received helpful written submissions from the representatives which are annexed to this decision and include references to the relevant Labour Relations Agency’s Code of Practice.

 

CONCLUSIONS

 

9.       (1)      The tribunal, having carefully considered the evidence together with the submissions from the parties’ representatives, and having applied the principles of law to the findings of fact concludes as follows:-

 

                    (i)       The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-

 

                                       (1)       Was the dismissal of the claimant by the respondent fair in all the circumstances?  In determining this primary issue the Tribunal should consider the following:

 

(a)                Has the respondent shown that the reason (or principal reasons) relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

 

                                                 (b)       Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

 

(i)       Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

 

(ii)      At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

 

                                                 (c)      Was the dismissal a fair sanction in the circumstances?

 

                                                 (d)      Was the claimant afforded an effective right of appeal in the circumstances?

 

          (2)      The tribunal answers all questions in the affirmative and therefore dismisses the claimant’s claims.

 

 

 

 

 

Employment Judge:      

 

Date and place of hearing:         29 January 2015, Belfast.

 

Date decision recorded in register and issued to parties:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF: - 2595/141T

 

 

CLAIMANT: -                    GERARD MCCORRY

 

RESPONDENT: -              ISLAND SALADS LIMITED

 

SUBMISSIONS ON BEHALF OF THE CLAIMANT

 

The Claim

 

1.       The claimant claims that he was unfairly dismissed by the respondent.

 

Summary of the Claimants Case

 

The claimant was summarily dismissed following an incident wherein a fellow employee kicked a box being used by the Claimant causing it to travel approximately 7 ft. across the factory floor, followed by her pulling a large fridge door with such force as to cause it to travel along the runners and only coming to a stop when it slammed against the stoppers creating a loud bang.  In response to this behaviour the claimant used inappropriate language to the complainant who immediately went to a director of the company, Mr. Conor Maguire and made a complaint about the language used to her.  Upon hearing of the complaint being made against him the claimant went to Mr. Maguire to set out his version of events.  Mr. Maguire refused to listen to the claimant and said that he would get the matter investigated.   The claimant then went to the canteen for his lunch and upon opening the door saw the complainant sitting at a table.  In frustration at the foregoing events he called the complainant a “fucking liar”.

 

Following an investigation carried out by the company the claimant was summarily dismissed.

 

 

 

 

It is the claimants submission that the decision to dismiss was unfair as it was objectively disproportionate and outside the band of reasonable responses for the respondent based on the claimants unblemished record of working with the company for 4 and half years and in circumstances where there was no contract of employment in place and there were no disciplinary rules and procedures.  The claimant was dismissed by letter dated the 15^th of August 2014, which stated, inter alia, “I have come to the conclusion that you used foul and abusive language toward Patricia McGarrell which is totally unacceptable in our workplace.  It is in my view that you did so in a threatening and bullying fashion…”..  At no time during the investigation was it put to the claimant that he had engaged in threatening and bullying behaviour.

 

The disciplinary process included an investigation by an external investigator, a disciplinary hearing held with the employer and an appeal by another external investigator.

 

The representative for the claimant relied on the decision of the court of appeal in Patrick Joseph Rogan v South Eastern Health and Social Care Trust, hereafter “Rogan”, delivered on the 13^th of October 2009, in presenting his case to the tribunal.

 

Per Rogan, the burden of proof is on the employer to establish the reason for the dismissal and to demonstrate that it was a reason relating to the conduct of the employee.

 

Once the employer satisfies this requirement then the tribunal must consider whether or not the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.  In assessing whether or not the employer did in fact act reasonably when treating the conduct as a sufficient reason for dismissal the court should consider: -

 

Was the dismissal of the claimant by the respondent fair in all the circumstances?  In determining this primary issue the Tribunal should consider the following:

 

 

 

 

a)    Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimants conduct?

 

b)    Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

 

                 i.          Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

 

               ii.          At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

 

c)  Was the dismissal a fair sanction in the circumstances?

 

d)  Was the claimant afforded an effective right of appeal in the circumstances?

 

1.       Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

 

No employer could reasonably form or sustain a belief in the guilt of an employee in circumstances where no such allegation or complaint had been made and no investigation into an allegation of that nature was carried out.  In the absence of such an allegation a reasonable employer, before coming to such a conclusion, would have clarified the complaint with the complainant and asked her if she felt bullied or threatened.  Neither the employer Mr. Conor Maguire, the investigator Mr. Teddy Martin or Mr. McDonnell, who carried out the appeal hearing, did so.

 

The claimant was invited to a disciplinary hearing with Mr. Maguire to discuss allegations that he had verbally abused a member of staff.  During the disciplinary hearing the claimant was prevented from giving full details of what he says happened, with Mr. Maguire telling him that he would read the statement and solicitors letter and conclude from there.  At no stage during the disciplinary hearing did Mr. Maguire put it to the claimant that he had engaged in threatening or bullying

 

 

 

behaviour.  Indeed the evidence was that Mr. Maguire did not pose any questions at all regarding the allegations to the claimant and under cross-examination Mr. Maguire appeared confused as to the distinction between the two charges i.e. that you verbally abused the complainant and that you verbally abused the complainant is a threatening and bullying fashion.

 

Mr. Maguire stated in his evidence that he carried out the disciplinary hearing on the basis of the report carried out by Mr. Teddy Martin and its conclusions.  Mr. Martin gave evidence to the court that his instructions from Mr. Maguire were that he was to investigate an allegation of the claimant having used inappropriate language.  In his report, Mr. Martin, came to the conclusion that foul language was used, but did not investigate, nor was he asked to investigate, an allegation of threatening and bullying behaviour.  The first time that threatening and bullying behaviour was mentioned was in the letter of dismissal from Conor Maguire dated the 15^th of August 2014.

 

The complainant at no stage complained that the claimant bullied or threatened her.  Her allegation was that he used foul language to her.  No evidence was produced to the tribunal that the claimant used threatening or bullying behaviour nor did Ms. McGarrell say that she felt threatened or bullied. 

 

In the letter of dismissal dated the 15^th of August Conor Maguire states at paragraph 2 “I do not understand your statements in this respect – if you were not addressing Patricia McGarrell as a :f…king as…..” and you were not telling her to “f… off”, then (who) were you calling that name and who were you addressing your second remark to?  The respondent could not be said to have had a reasonable suspicion amounting to a belief in the guilt of the claimant in circumstances where he states that he does not understand the claimant’s statement as to the central issue leading to the dismissal and goes on to ask the question “who were you addressing your second remark to”?  It is arguable that Mr. Maguire could not possibly have formed a belief in the guilt of the claimant of that misconduct at the time of dismissal in a situation where he remained confused as to the evidence given.

 

 

 

2.       At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

 

An allegation of threatening or bullying behavior is a serious allegation, which could potentially lead to criminal proceedings being initiated should a complaint be made to the relevant authorities, therefore it is crucial that an employer should carry out a thorough, reasonable investigation into such allegations and to approach such evidence in an even handed manner. 

 

A reasonable employer would have interviewed all witnesses to the event: -

 

Ms. McGarrell states that she was in the company of another employee, Mr. Michael Haddock in the canteen when Mr. McCorry opened the door.  At no stage did Conor Maguire, Mr. Teddy Martin or Mr. McDonnell take a statement from or speak to this witness.  A reasonable employer would have interviewed such a person particularly in light of the fact that there was conflicting evidence as to what was said in the canteen and as to the manner in which Mr. McCorry opened the door.  This person could have been called to either dispute or corroborate the statements given by both employees, which would in turn have provided certainty on central matters, such as to how the witness was affected by the events and would have ensured that the evidence of Ms. McGarrell and Mr. McCorry was tested correctly. It is submitted that Mr. Conor Maguire and Mr. McDonnell placed considerable weight on Patricia McGarrell's version of events despite inconsistencies between Mr. McCorry’s and Ms. McGarrell’s statements. 

 

It was notable that in cross-examination Mr. Martin, when putting to the claimant that he did in fact confront Ms. McGarrell, stated, “we don’t need Michael Haddock here to confirm it”.  It is submitted that Mr. Martin failed to appreciate the absolute requirement that Mr. Haddock should in fact have been interviewed as part of the investigation and the reasons for such a requirement.

 

In the claimants statement to Mr. Martin on the 17^th of July 2014 he states at page 2, “I heard nothing further until I called at the office to ask Jane to join me for lunch”. 

 

This corroborates the claimants assertions that his reason for going to the canteen was to have his lunch and that at no time did he seek out the complainant as alleged.  A reasonable employer would have investigated the precise circumstances of the claimant going to the canteen and his reasons for doing so.

 

In the report prepared by Mr. Kevin McDonnell who carried out the appeal hearing Mr. McDonnell states at No. 2 “you went into the company canteen, approached Mrs. McGarrell and called her “a fucking liar”….”you said that you then went to the canteen to confront Mrs. McGarrell about the complaint”. The claimant completely denied in his evidence to the tribunal that he said this to Mr. McDonnell at the appeal hearing.  At all times he has stated that he went to the canteen and spoke to Ms. McGarrell from the door.  Hi evidence was that at no stage did he approach her and he did not know that she was in the canteen until he opened the door and saw her sitting there.  His reason for going to the canteen was so that he could have lunch with Ms. McCarthy.  At no stage in the investigation was Mr. McCorry asked why he went to the canteen at that time.  A reasonable employer would have asked why he went to the canteen and if they had taken a statement from Ms. McCarthy she would have corroborated the evidence of Mr. McCorry.

 

Ms. McCarthy was sitting in the office when the complainant entered with Mr. Maguire so that her complaint could be recorded therefore Ms. McCarthy would  have been in a position to give evidence as to the demeanor of the complainant and whether or not she was distressed as alleged. 

 

In conclusion I submit that the respondent could not have had reasonable grounds at the time of its decision to dismiss on which to sustain its belief in the misconduct of the claimant and could not be said to have carried out a reasonable investigation into the matter as was reasonable in the circumstances.

 

3.       Was dismissal a fair sanction in the circumstances?

 

The company failed to provide the claimant with a contract of employment contrary to Section 1 of the Employment Rights (Northern Ireland) Order 1996.  In addition the company failed to provide the claimant with disciplinary and grievance

 

 

procedures.  The Code of Practice on disciplinary and grievance procedures at paragraph two states: -

 

Disciplinary rules inform employees of the behaviour employers expect from them.  If an employee breaks specific rules about behaviour, this is often called misconduct.

 

A reasonable employer would have considered all of the sanctions available to him when deciding on the outcome of the investigation particularly in circumstances where the employer failed to outline to the employee what type of behaviour could result in a sanction being imposed.  Employees cannot be expected to perform their work in an information vacuum.  They have a right to be informed of what the company regards as a reasonable standard of behaviour and what the consequences will be for them if they fail to meet that standard.  The respondent has failed to comply with the statutory Code of Practice whereby they did not provide disciplinary rules and grievance procedures to the claimant. 

Evidence was given at the hearing by the claimant that bad language was used on a daily basis

 

4.       Was the claimant afforded an effective right of appeal in the circumstances

 

The claimant was informed of his right to appeal and that an appeal hearing would take place on Thursday the 28^th of August 2014 at the company premises.  Conor Maguire had organised for his wife’s brother, Mr. James Harvey to hear this appeal , however following concerns raised by the claimant the appeal hearing was cancelled.  A subsequent appeal hearing carried out by Mr. Kevin McDonnell, employment relations consultant.

 

Mr. McDonnell stated at the outset of the meeting that he “would be relying on all of the documentation together with the statements obtained during the formal investigation”.  This documentation included inter alia, the letter of dismissal, statements taken during the investigation and the investigation report prepared by Mr. Teddy Martin.

 

 

 

 

 

Mr. McDonnell concluded: -

 

1.     A thorough and sufficient investigation into the allegations was conducted, as is evidence by the use of an outside consultant to carry out the investigation and the comprehensiveness of the witness statements.

2.     The employer’s decision to take disciplinary action was reasonable, based on the evidence, which resulted from the investigation… 

3.     My findings are that the disciplinary action taken by the company was reasonable.  Mrs. McGarrell exercised her right to make a complaint and was threatened and bullied, by you, for doing so.

 

Mr. McDonnell went on to conclude that the company had fully complied with all their requirements in respect of the dismissal.

 

Mr. McDonnell concluded the foregoing despite the fact that the company at no stage put to the claimant that he had engaged in threatening or bullying behaviour, there was no complaint from Ms. McGarrell of threatening or bullying behaviour having been used by the claimant to her and despite the fact that the external investigator, Mr. Teddy Martin, was not at any stage asked to investigate such an allegation.

 

It is submitted that the fact that an external consultant was used by the company in no way goes towards showing that the company carried out a thorough and sufficient investigation.  The use of an external consultant merely goes towards showing that a person with experience in disciplinary matters carried out the investigation.  The evidence before the appeal hearing and the tribunal was that the external consultant failed to take statements from two crucial witnesses, which could potentially have corroborated either Ms. McGarrell or the claimants version of events.  Mr. McDonnell did not seek to interview either of these witnesses at any stage either, despite the fact that they were both very much part of the incident as alleged, therefore the matter was not thoroughly investigated by either of the external consultants engaged by the company.

 

 

 

 

 

On the basis of the foregoing it is submitted that the claimant was afforded a right of appeal however the appeal was not an effective one based on the failure of Mr. McDonnell to correctly evaluate the evidence that was presented to him by the respondent.

 

Failure to comply with the Code of Practice on Disciplinary and Grievance Procedures

 

Paragraph 11 –Code of Practice – Informal Actions

 

Paragraph 11 states: -

 

Cases of minor misconduct…are usually best dealt with informally.  A quiet word of caution or advice and encouragement is often all that is required to improve an employee’s conduct…

 

The core duties of Mr. McCorry was as a production operative and it is agreed that he worked in a different area than the complainant.  Mr. McCorry stated in his letter prepared by his solicitor, Mr. Peter Murphy that he was “happy to continue in his work and wished to return to work immediately without delay”.  The letter went on to state: -

 

If our client was allowed to return to his work, we believe that reasonable adjustments could be made which would allow both our client and the said Mrs. McGarrell to get on with their work in their respective operational areas.  This would avoid any interaction between them.  There is no reason why they cannot carry on their duties separately, maintaining a harmonious working environment.

 

There was evidence of a previous disagreement between the clamant and Mrs. McGarrell approximately 18 months previously.  The claimant in his evidence stated that he did not complain about the incident at the time and was prepared to simply ignore the inappropriate remark made by Mrs. McGarrell to him, avoid Mrs. McGarrell and get on with his work.  There was no evidence that this is not what in

 

 

 

 

fact happened and there was no evidence that the claimant or Ms. McGarrell had any day to day difficulties with this course of action therefore it is argued that there is no reason why the respondent could not have set in place some boundaries and guidelines which would have allowed the parties to continue working together.

 

Paragraph 15 – Formal Action – Inform the employee of the problem

 

Paragraph 15 provides: -

 

The first step in any formal process is to let the employee know in writing the nature of what they are alleged to have done wrong.  The letter or note setting out the allegation can also be used to explain the basis for making the allegation.  It is important than an employee is given sufficient information to understand the basis of the case against them.

 

The respondent failed to comply with the provisions of paragraph 15 on the basis that they did not inform the claimant that he was alleged to have engaged in threatening and bullying behaviour.  At no stage was he provided with a basis for such an allegation.

 

Paragraph 20 – Decide on outcome and action

 

Paragraph 20 provides: -

 

Before making a decision the employer should take account of the employee’s disciplinary and general record, length of service…the explanations given by the employee and – most important of all – whether the severity of any intended disciplinary actions is proportionate and reasonable in all the circumstances.  In considering the circumstances employers should take account of, in particular, the extent to which standards have been breached.

 

I submit that there was no justification for summary dismissal on the facts of this case in circumstances where the claimant worked for the company for four and a half years with a clean disciplinary record.  No evidence was put before the tribunal that

 

 

the respondent did in fact take account of the employee’s disciplinary and general record or length of service.  The respondent in this case was not in a position to take into account “the extent to which standards have been breached” in circumstances where they had simply failed to set out any such standards.

 

Paragraph 32 provides: -

 

If the employer fails to follow the statutory procedure, where it applies, and an employee, who is qualified to do so, makes a claim for unfair dismissal; the tribunal will find the dismissal automatically unfair. 

 

Paragraph 39 – Dealing with gross misconduct

 

Paragraph 39 provides: -

 

It is a core principle of reasonable behaviour that employers should give employees the opportunity of putting their case at a disciplinary meeting before deciding whether to take action.

 

While it is acknowledged that the respondent did hold a disciplinary hearing, they were in breach of section 39 in circumstances where they failed to allow the claimant to set out fully his version of events at the disciplinary hearing on the 4^th of August 2014.

 

Paragraph 56 – drawing up disciplinary rules and procedures

 

Paragraph 56 provides: -

 

Employers are responsible for maintaining and setting standards of conduct and performance in an organisation and for ensuring that disciplinary rules and procedures are in place.  Employers must follow the requirements of the statutory discipline and dismissal procedures, as a minimum, where these are applicable if they wish to avoid the possibility of certain sanctions at the tribunal.

 

 

It is submitted that the respondent’s failure to comply with the code of practice should go towards reducing any contributory fault on behalf of the claimant.

 

Paragraph 59 - Rules

 

Paragraph 59 provides: -

 

Rules should be specific, clear and recorded in writing.  They also need to be readily available to employees, for instance on a noticeboard or, in larger organisations, in a staff handbook or on the Internet.

 

The respondent failed to provide any rules to the claimant or any of their employees.

 

Paragraph 60 - Rules

 

Paragraph 60 provides: -

 

Employers should inform employees of the likely consequences of breaking disciplinary rules.  In particular, they should list examples, but not exhaustive lists, of acts of gross misconduct that will warrant summary dismissal.

 

The claimant was not informed of the likely consequences of breaking disciplinary rules in circumstances where there simply were no rules.

 

Paragraph 61 – Gross Misconduct

 

Paragraph 61 provides: -

 

Acts, which constitute gross misconduct, are those resulting in a serious breach of contractual terms…such acts, might be said to strike at the very root or heart of a contract of employment such as to destroy the essential bond of trust and confidence between the parties to the contract.

 

 

 

While it is acknowledged that the list of examples of gross misconduct in the code is not exhaustive, it is noteworthy that the legislature chose not to specifically include the use of bad language as grounds for summary dismissal.  (Please see case law for discussion on bond of trust and confidence.)

 

Paragraph 62 – Procedures

 

Paragraph 62 provides: -

 

Disciplinary procedures should not be seen primarily as a means of imposing sanctions but rather as a way of encouraging improvement or modifying the behaviour of employees whose conduct or performance is unsatisfactory.

 

It is submitted that the respondent used the disciplinary procedures for no other purpose than to effect the dismissal of the claimant.  There was no effort on behalf of the respondent to explore the possibility of resolving the difficulty which had arisen nor was there any effort by the respondent to put in place procedures to facilitate both employees working together into the future.

 

Paragraph 64 – Good disciplinary procedures

 

Paragraph 64 provides that good disciplinary procedures should, inter alia: -

 

·       Require employees to be informed of the complaints against them and supporting evidence, before a meeting;

·       Give employees a chance to have their say before management reaches a decision;

·       Require management to conduct a reasonable investigation before any disciplinary action is taken;

·       Ensure that employees are given an explanation for any sanction.

 

 

 

Section 2 – Code of Practice – Grievance Procedures

 

 

 

Paragraph 70 – grievance procedures provides: -

 

Employers are required by law to specify, through written statements of employment particulars, any procedure applicable to handling employee grievances.  They must specify a person to whom employees can apply for the purpose of seeking redress of any grievance relating to their employment; and cover any further steps, which follow from the making of such an application.

 

The respondent failed to provide grievance procedures to the claimant.  In the absence of the respondent having expressly provided a person to whom the claimant could go to if he had a grievance, the claimant went to Mr. Maguire directly as he was the person who had received the complaint.  The claimant attempted to speak to Mr. Conor Maguire about the allegation made against him.  The evidence of the claimant is that Mr. Maguire did not want to listen to what he had to say and sought to avoid engaging in the matter with the claimant.  The respondent should have appointed a line manager within the company to whom the claimant could have gone to which would have avoided any allegations of bias, particularly in circumstances where the evidence of the claimant was that Mr. Maguire and the complainant’s families were personal friends.

 

Case Law

 

In McCormack v Hamilton Academicals Football Club Limited [2012] IRLR 108, Mr. McCormack was summarily dismissed on the grounds of gross misconduct from the respondent club in circumstances where he had used unacceptable conduct and foul language at an under-19 tournament; dressing-room incidents at the tournament involving offensive and embarrassing conduct and remarks towards a young female physiotherapist; disruptive behaviour, in the nature of a prank among others.

 

The Court of appeal in upholding that the dismissal of Mr. McCormack was unfair held: -

 

 

 

Summary dismissal has to be regarded as an exceptional remedy calling for substantial justification. It will not readily be sustained for misconduct, which only peripherally affects the performance of core duties under the relevant employment contract. To bring summary dismissal into play, repudiator conduct must be so serious as to strike at the foundation of the employer/employee relationship, and for practical purposes to make its continuance impossible.

 

The behaviour complained of could not be said to be so serious as to strike at the foundation of the employer/employee relationship nor could it be said to make its continuance impossible. On several occasions Mr. McCorry stated in his letters that he had respect for Conor Maguire, which would indicate that he did not consider that the mutual trust and confidence was at an end.  The claimant stated that he simply wanted a fair and impartial hearing, which he did not feel in the circumstances that he would get.  The claimant was willing to continue working in the company and was distraught at the possibility of losing his job due to the incident which had taken place.  It is submitted that the continuation of the employer/employee relationship was not in any way impossible and that if the employer had dealt with the matter informally, that the situation could have been remedied on the day that it took place by perhaps setting some boundaries in place and informing the claimant that he no longer considered such language acceptable in his company.

 

In King v Motorway Tyres and Accessories Limited an employees six years long service with a satisfactory record, including a promotion, was sufficient for the tribunal to hold that dismissal was an excessive penalty for an employee who had used improper and abusive language to another manager.  The tribunal held that a severe reprimand and a final warning were the only reasonable penalty in the circumstances.

 

In PD Wilson v M. Racher [1974] IRLR 114 the respondent/plaintiff was summarily dismissed in circumstances where he had used obscene language during a heated argument with his employer, which was witnessed by the employers wife and children.  The court of appeal, in upholding the finding of unfair dismissal held: -

 

 

 

The plaintiff's use of obscene and deplorable expressions such as "get stuffed", "go and shit yourself" and "do you expect me to get fucking wet?" occurred on a solitary occasion and, unlike Pepper v Webb, there was no background either of inefficiency or insolence. Indeed, the plaintiff had otherwise been competent and diligent. Thus, it could not be said that the plaintiff followed a line of conduct, which made the continuation of the employment relationship impossible. On the contrary, the parties could have made up their differences.

 

The situation complained of took place during a period of approximately half an hour, which it could be argued, formed part of the same incident.  The claimant admits to using bad language to another employee in circumstances were he says that such language was used on an almost daily basis by staff and the two directors of the company including Mr. Conor Maguire and the complainant herself.  It is unreasonable of the employer to find that language that is part and parcel of both his own and employees vocabulary in the workplace, could come into the category gross misconduct.  While language of the type used may be objectionable to many people, it is a fact of life that such language is used by some sections of society who see no wrong in the use of such words.  While subjectively such language may be deemed as highly offensive, when viewed objectively in the particular circumstances of this case and in the context of the language used in the respondent’s factory, this language was simply part and parcel of daily for the employees and was never on any pervious occasion deemed offensive by the respondent.

 

On an objective assessment of the conduct of Mr. McCorry it is submitted that the act complained of was not sufficient to constitute gross misconduct. 

 

Claim for compensation for failure of the company to provide a statement of Terms and Conditions of Employment contrary to Section 1 of the Employment Rights (Northern Ireland) Order 1996.

 

Re: - application for an amendment to the original application to the tribunal for unfair dismissal, so as to include a claim by the claimant for failure by the company to provide a contract of employment to him.

 

 

 

 

 

The claimant makes the application on the following grounds: -

 

·       The claim does not raise a new cause of action.

·       The schedule of loss submitted to the respondent on the 21^st of January by email and post was discussed by the representatives for the claimant and the respondent on the 29^th of January and the morning of the 30^th of January.   At all times the representative for the respondent stated that the claim for such failure was fair and that they had no objections to same on the basis that the company accepted that no contract of employment was ever given to the claimant.

·       No objection to its conclusion was made prior to the hearing.

·       The error was as a result of a bona fide error as a result of an assumption that the matter would be included under the heading of unfair dismissal and time constraints between the representative becoming involved in the matter on behalf of the applicant and the statutory time limit for making a claim under the 1996 order running out.

·       There was no conscious effort not to include the claim in the original claim form.

·       The claimant last had contact with his solicitor on the 4^th of September, which was immediately prior to the appeal hearing and had no access to legal advice until immediately prior to the application to the tribunal.

·       There are no factual allegations in the claim for such a remedy, which could be said to alter the basis of the existing claim for unfair dismissal.

 

In considering the balance between the suffering/hardship of the claimant should he fail to succeed in the application versus the suffering/hardship, which would be caused to the respondent, should the application succeed the claimant makes the following points: -

 

 

·       The claimant has a partner and two young daughteres aged two and six;

·       He is currently living on social benefits totaling £72.40 per week;

 

 

 

 

·       The claimant is an unskilled worker and has no reasonably prospect of gaining employment in the foreseeable future;

·       The employer was at all times aware of the claims that he would have to meet should he be deemed by the tribunal to have unfairly dismissed the claimant;

·       There is no evidence that the company is not profitable and it is submitted that a perusal of its accounts, which are available online, show a net worth as at September 2014 as being approximately £1.3 million.

·       It was acknowledged by the respondent in its letter of dismissal that no contract of employment was in place, therefore it cannot be said to have been outside the contemplation of the respondent, that he would have to meet such a complaint, due to the fact that it was admitted by them that they were in breach of the legislative requirements in this regard.

 

 

Conclusion

 

In summary ask tribunal to consider: -

 

Lack of Contract of Employment

Failure to provide policies and procedures to the claimant

Use of bad language in the workplace by both employees and directors.

Case law, which states that bad language, does not fall into the category of gross misconduct.

Failure of carry out a sufficient investigation and to interview all witnesses.

Failure of respondent to inform the claimant of all the charges against him and to investigate same.

Unreasonableness of respondent in considering that a sanction was warranted in circumstances where the evidence of the claimant was that bad language was used on a daily basis within the company and in circumstances where no employee was previously sanctioned for the use of such language nor informed that such language was unacceptable.

Failure to consider suggestion by claimant that a warning would suffice and failure to consider any other form of sanction if found that a sanction was required.

 

 

 

 

Contributory Fault

 

Paragraph 32 of the Code of Practice provides: -

 

If the employer fails to follow the statutory procedure, where it applies, and an employee, who is qualified to do so, makes a claim for unfair dismissal; the tribunal will find the dismissal automatically unfair.  The tribunal will normally increase the compensation awarded by between 10 and 50 per cent where it feels it is just and equitable to do so. 

 

Paragraph 56 provides: -

 

Employers are responsible for maintaining and setting standards of conduct and performance in an organisation and for ensuring that disciplinary rules and procedures are in place.  Employers must follow the requirements of the statutory discipline and dismissal procedures, as a minimum, where these are applicable if they wish to avoid the possibility of certain sanctions at the tribunal.

 

While the claimant has admitted to using the language as set out in the conclusions of the investigator in his report it is submitted that any reduction in the compensatory and basic awards are negated by the respondents failure to follow the statutory procedure.  

 

The claimant submits that he was provoked into the use of such language by the actions of the complainant on the day in question and that while such language may be viewed objectively as being offensive, it is submitted that such language was used on a daily basis within the workplace, by both the directors of the company, other employee and the complainant herself.  On no previous occasion did the complainant object to the type of language used against her on the day.

 

 

 

 

 

The company did not have any disciplinary rules or grievance procedures and there was no notification to the claimant that the type of language used was unacceptable in the company.  The evidence of the claimant that he heard the directors of the company use such language themselves led him to conclude that such language was acceptable to them.  In the absence of the company expressly setting out what the acceptable standards of behaviour were, it thereafter fell to the employees to imply what the standard of behaviour was in the workplace, therefore the claimant upon hearing such language regularly used was justified in his belief that the language used was acceptable and would not be deemed as misconduct.

 

In the absence of a charge being made to the claimant of using threatening and bullying behaviour and a failure to investigate same it is submitted that such an allegation such not be considered under this heading.

 

The claimant had worked for four and a half years with no disciplinary actions being taken against him and there were no complaints about his work performance.  The respondent substantially failed to adhere to the Code of Practice and there were significant failings by them throughout the entire disciplinary process. 

 

Patricia McGuinness

1^st February 2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF: - 2595/141T

 

 

CLAIMANT: -                    GERARD MCCORRY

 

RESPONDENT: -              ISLAND SALADS LIMITED

 

 

List of Documents before Disciplinary and Appeal Hearing

 

 

Documents before Disciplinary Hearing:-

 

 

	Description	Pg. No. in Hearing Bundle
1.	Letter dated 15th July 2014 from Island Salads to Gerard McCorry informing him of suspension from work.	1
2.	Patricia McGarrell statement – 16th July 2014	2-4
3.	Gerard McCorry statement – 17th July 2014	5-8
4.	Patricia McGarrell – reply to Gerard McCorry’s statement of 16th July – 22nd July 2014	9
5.	Investigation report prepared by Mr. Teddy Martin – 23rd July 2014	10-13
6.	Letter from Island Salads to Gerard McCorry inviting him to disciplinary hearing -24th July 2014	14
7.	Letter from Gerard McCorry to Island Salads  - 30th July 2014	15
8.	Letter from Island Salads to Gerard McCorry – 31st July 2014	16
9.	Letter from Peter Murphy Solicitor to Island Salads – 31st July 2014	17-19
10.	Letter from Island Salads to Gerard McCorry – 31st July 2014	20
11.	Letter from Island Salads to Peter Murphy Solicitor – 1st August 2014	21

 

Documents before Appeal Hearing:-

 

	Description	Pg. No. in Hearing Bundle
1.	Documents 1 through to 11 as listed above
2.	Handwritten notes made by Ann Maguire at disciplinary hearing	22-23
3.	Dismissal Letter – 15th August 2014	24-25
4.	Letter from Gerard McCorry to – Island Salads	26-27
5.	Letter from Island Salads to Gerard McCorry	32