Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 274/18

 

CLAIMANT: Colin Jamison

 

RESPONDENT: McKenzies (Northern Ireland) Limited

 

 

 

DECISION

 

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

 

 

Constitution of Tribunal:

 

Vice President: Mr N Kelly

Members: Mr M McKeown

Mr N Jones

 

 

Appearances:

 

The claimant was represented by Ms Emma McIlveen, Barrister-at-Law, instructed by MKB Law.

 

The respondent was represented by Mr Mark Mason.

 

BACKGROUND

 

1. The respondent company operated a scrap metal and recycling business at Duncrue Street in Belfast. The respondent company was owned by Mr Sergio McKenzie, (senior) and his son Mr Sergio McKenzie (junior) was a director and manager.

 

2. The claimant worked as a yard operative for the respondent company for approximately two years.

 

3. An incident occurred on 19 September 2017 which led to disciplinary charges against the claimant.

 

4. The claimant was subsequently dismissed for gross misconduct. The claimant appealed internally against that dismissal. The respondent company did not accept that appeal because it had been submitted too late.

 

5. The claimant lodged tribunal proceedings alleging that he had been automatically and substantively unfairly dismissed by the respondent company, contrary to the Employment Rights (NI) Order 1996.

 

 

Procedure

 

6. The proceedings were case managed.

 

7. Directions were given in relation to the interlocutory procedure.

 

8. The witness statement procedure was directed. The parties exchanged signed and dated witness statements in advance of the hearing. At the hearing, each witness in turn swore or affirmed to tell the truth, adopted their witness statement as their evidence and moved immediately into cross examination and re-examination.

 

9. Since it had been accepted that a dismissal had occurred, the respondent's witnesses were called first. They were;

 

(i) Mr Sergio McKenzie (senior) the owner of the respondent company.

 

(ii) Mr Sergio McKenzie (junior), a director and manager of the respondent company.

 

(iii) Ms Ashleigh Patterson, a weighbridge operative in the respondent company.

 

(iv) Mr Colin Foote, a lawyer who conducted the disciplinary hearing on behalf of the respondent company.

 

Unfair Dismissal

 

10. The statutory test to be applied by a tribunal, when considering the fairness of a misconduct dismissal, appears simple. However it has provoked a lengthy series of appellate decisions.

 

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

 

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

 

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

 

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

 

(2) a reason falls within this paragraph if it -

 

(b) relates to the conduct of the employee,

 

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

 

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

 

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

 

12. The Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

 

"(49) The correct approach to [equivalent GB legislation] was settled in two principal cases - British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLC (formerly Midland Bank) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

 

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

 

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

 

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

 

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

 

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

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

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

 

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

 

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

 

He continued at Paragraph 19:-

 

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

 

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

 

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

 

At Paragraph 38 of the decision, he continued:-

 

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

 

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

 

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

 

"In A v B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. "

 

16. The Court of Appeal in Northern Ireland further examined the approach that a tribunal should adopt in claims of unfair dismissal in the case of Connolly v Western Health & Social Care Trust [2017] NICA 61.

 

In that case, a nurse, who was on duty in a hospital ward and who was experiencing the symptoms of an asthma attack, used a Ventolin inhaler from the locked ward stock. She had intended to replace it with another inhaler which would have been supplied to her on her own prescription. She had not sought prior permission to use the hospital's inhaler; she had not approached any doctor in the hospital for assistance; she had not attended the Accident & Emergency Department for assistance. She did not disclose the use of the inhaler until her next day on duty two days later. It was not in dispute that there had been misconduct on the part of the claimant in using a prescription only medicine which was part of hospital stock. The issue in all of this was whether the misconduct had been sufficiently serious to ground summary dismissal for gross misconduct.

 

17. The WHSCT had been concerned that the claimant had intended to replace the inhaler from her own supply. That would have broken the chain of supply within the hospital and in the employer's view would have presented a serious risk to the health of patients. The employer was also concerned that the claimant had sought, in response to the disciplinary proceedings, to stress that Ventolin had not been a controlled drug (although it had been a prescription only drug). The employer felt the claimant still believed that her conduct was permissible in certain circumstances and that therefore the behaviour could recur. The claimant was summarily dismissed for gross misconduct.

 

18. This case was the subject of two separate appeals to the Court of Appeal. However, the later appeal is the one relevant to the present case. It was a split decision. The minority decision, reached by Gillen LJ, found that the tribunal decision had been correct, in that it had held that there had been a fair dismissal for gross misconduct. The hospital rules had made it clear that ' misappropriation' of drugs was a potential offence. The claimant had not notified any other member of staff of her use of the inhaler before using it or for the rest of that shift. She had attended work for her next shift some two days later and had only then informed her manager that she had used the Ventolin inhaler from ward stock.

 

19. In essence, Gillen LJ determined that the decision to summarily dismiss the claimant in all the circumstances of the case had been a decision which a reasonable employer could reasonably have reached, even if may not have been the decision that the tribunal or the court would have reached, had it been determining the issue at first instance.

 

20. After citing the usual authorities, Gillen LJ approved the following statement in the tribunal's findings:-

 

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

 

21. Gillen LJ then noted that the tribunal had determined that the employer had been concerned by the use of the prescription only inhaler from the ward stock which had been kept under lock and key, the claimant's intention to replace that inhaler with an inhaler from her own supply and that she knew the use of such medication was wrong. The tribunal had determined that the employer had held a genuine belief in gross misconduct which had been reached on reasonable grounds following a reasonable investigation and that it was not for the tribunal to substitute its own opinion or penalty for that of the employer in the circumstances of this case. Gillen LJ determined that:-

 

"49. I consider that there is no basis upon which this court could consider that this conclusion was plainly wrong or that it could not have been reached by any other reasonable tribunal. Taking a prescription drug from under lock and key for the appellant's own use is clearly an extremely serious matter which no hospital can or should tolerate. Not only was the appellant well aware that this was prohibited behaviour but it could easily have been avoided by seeking assistance from A and E or the duty doctor.

 

50. It was not unreasonable to conclude that this was aggravated by her failure to report the matter until two days later. Moreover it was perfectly reasonable for the Panel, made up of employees of the Trust well versed in Trust procedures and policies, to take the view that intent to personally replace it infringed the pharmacy supply chain. Frankly it scarcely requires an expert to inform the court that decisions to replace prescribed medications in principle should not be taken at this level irrespective of how simple an exercise in replacement in individual instances may appear to be."

 

22. Gillen LJ concluded:-

 

"57. Whilst this may not necessarily have been the conclusion that this court would have reached had it been hearing the matter at first instance, I find no basis for substituting our view for that of the Panel and the Industrial Tribunal hearing this matter. I therefore dismiss this ground of appeal."

 

23. The majority of the Court of Appeal in Connolly, Deeny LJ and Weir LJ, reached a different conclusion. Firstly, they concluded that the decision of the respondent to dismiss the claimant, in all the circumstances of the case, was not a decision which a reasonable employer could reasonably have reached. Secondly, it determined that the decision of the industrial tribunal was ' plainly wrong'. That second decision is based on the facts of the Connolly decision and on the view taken by the majority of the Court of Appeal in relation to the wording of the tribunal decision in that case. The first decision, and the approach taken by the majority to the objective standard of reasonableness, is of primary importance to the present decision.

 

24. Deeny LJ stated that:-

 

"Reaching a conclusion as to whether the dismissal is fair or unfair 'in accordance with equity and the substantial merits of the case' as required by Article 130(4)(b) would appear to involve a mixed question of law and fact."

 

25. Deeny LJ then cited the well-known paragraph in Iceland Frozen Foods Ltd v Jones (above) which sets out the ' reasonable responses' test. He went on to quote further from that decision to include the following:-

 

" Although the statement of principle in Vickers Ltd v Smith [1977] IRLR 11 is entirely accurate in law, for the reasons given in N C Watling & Company Ltd v Richardson [1978] ICR 1049, we think industrial tribunals would do well not to direct themselves by reference to it. The statement in Vickers Ltd v Smith is capable of being misunderstood so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section. This is how the industrial tribunal in the present case seems to have read Vickers v Smith. That is not the law. The question in each case is whether the industrial tribunal considers the employer's conduct to fall within the band of reasonable responses and industrial tribunals would be well advised to follow the formulation of the principle in N C Watling & Company Ltd v Richardson [1978] ICR 1049 or Rolls Royce Ltd v Walpole [1980] IRLR 343. "

 

26. Deeny LJ then pointed out that gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee:-

 

"So the conduct must be a deliberate and wilful contradiction of the contractual terms."

 

27. Deeny LJ stated that:-

 

"The facts as found are that she [the claimant] took five puffs of this inhaler when undergoing an asthmatic attack, without permission. The tribunal accepted the Appeal Panel's view that this was aggravated by her failure to report the matter until two days later.

 

It seems to me that, even taking into account the delay, for which an explanation was given and was not rejected as a finding of fact, that cannot constitute 'deliberate and wilful conduct' justifying summary dismissal. Her terms of employment do not seem to have expressly prohibited such a use. The Code of Conduct is ambiguous at best on the topic. If she had asked the Ward Sister for permission before she used the inhaler and the Sister had refused her permission and she had nevertheless gone ahead and had used it one might have had the sort of act of disobedience contemplated by the Court of Appeal in Laws v London Chronicle Limited. That would have been a deliberate flouting of essential contractual conditions, ie following the instructions of her clinical superiors. But that is not what happened here. Furthermore, I agree with the statements in Harvey ... that dismissals for a single first offence must require the offence to be particularly serious. Given the whole list of matters which the employer included under the hearing of Gross Misconduct it is impossible, in my view, to regard the nurse's actions as 'particularly serious'."

 

28. Deeny LJ stated:-

 

"For this court to approbate the tribunal's decision upholding as within a reasonable range of responses the summary dismissal of an employee from her chosen profession on these facts without any prior warning as a 'repudiation of the fundamental terms of the contract' would be to turn language on its head. Employment law is a particular branch of the law of contract. With statutory interventions it has, of course, developed a character of its own. But any dismissed employee opting to go into a court of law and claim damages for breach of contract at common law against an employer who had summarily dismissed them for using a Ventolin inhaler while suffering from an asthmatic attack and delaying two days in reporting that, particularly when it was their 'first offence', could be tolerably confident of success before a judge, in my view."

 

29. Deeny LJ held further that:-

 

"The interpretation of what, in this jurisdiction, is Article 130(4)(a) of the 1996 Order has been fixed by a series of appellate courts over the years, ie that whether an employer acted reasonably or unreasonably is to be addressed as whether an employer acted within a band of available decisions for a reasonable employer even if not the decision the tribunal would have made. That test, expressed in various ways, is too long established to be altered by this court, and in any event has persuasive arguments in favour of it. But it is necessary for tribunals to read it alongside the statutory provision of equal status in Article 130(4)(b), ie that that decision 'shall be determined in accordance with equity and the substantial merits of the case'. ... ."

 

30. The statutory test of unfairness in Article 130 of the 1996 Order (and in its predecessor) is in simple terms, and should be straightforward. It is difficult to see why it has generated such an extended discussion in case law over the last 40 years. The words of Article 130 comprise the only statutory test of unfairness. The formulation of the ' band of reasonable responses' test, variously worded in different decisions, cannot be a substitution for the proper application of the statutory test. It may best be regarded as a double-check to be applied to ensure that, in applying the statutory test, the tribunal has avoided substituting its own views, on what it would have done in the relevant circumstances, for the decision of the employer. In other words it is, as the Court of Appeal (GB) stated in Fuller (above), a ' reassurance of objectivity'.

 

It is therefore important to remember that the ' reasonable responses' test, although long-established as pointed out by the Court of Appeal in Connolly (above), appears nowhere in the statute. This is a statutory tribunal whose function is to apply the statute. Non-statutory wording or non-statutory paraphrasing of the statutory test can only be of assistance where it is remembered that it cannot substitute for the statutory test which sets out the remit and the function of the tribunal. In Iceland (above), it was stressed that the starting point should be the words of the legislation. In Connolly (above) the Court of Appeal (Northern Ireland) emphasised the importance of applying the statutory test as a whole.

 

31. There is no difference between the formulation of the legal principles expressed in the majority judgment and in the minority judgment in the case of Connolly. The detailed formulation of those principles set out by Gillen LJ at Paragraph 28(i) - (xvi) of the decision covers, in full, the procedure which should be adopted by an Industrial Tribunal in assessing the fairness or unfairness of a misconduct dismissal. It is not disputed or challenged in any way in the majority judgement.

 

32. In Reilly v Sandwell Metropolitan Borough Council [2018] UK SC16, the Supreme Court looked at a case of alleged unfair dismissal. The facts of that particular case are not of assistance to the present matter. However it is notable that Lady Hale, the President of the Supreme Court stated;

 

"the case might have presented an opportunity for this court to consider two points of law of general public importance which have not been raised at this level before."

 

The first point is not of relevance to the present matter. However, Lady Hale described the second point in the following way;

 

"nor have we heard any argument on whether the approach to be taken by a tribunal to an employer's decisions, both as to the facts under section 98(1) to (3) as the Employment Rights Act 1996 first led down by the Employment Appeal Tribunal in British Homes Stores Limited v Burchell [1978] ICR 303 and definitively endorsed by the Court of Appeal in Foley v Post Office [2000] ICR 1283, is correct."

 

She went on to state;

 

"Even in relation to the first part of the inquiry, as to the reason for the dismissal, the Burchell approach can lead to dismissals which were in fact fair being treated as unfair and dismissals which were in fact unfair being treated as fair. Once again, it is not difficult to think of arguments on either side of this question but we have not heard them."

 

33. Lady Hale went to state;

 

"34. There may be good reasons why no one has challenged the Burchell test before us. First, it has been applied by Employment Tribunals, in the thousands of cases which have come before them, for forty years now. It remains binding upon them and on the Employment Appeal Tribunal and Court of Appeal. Destabilising the position without a very good reason would be irresponsible. Second, Parliament has had the opportunity to clarify the approach which is intended, should it consider that Burchell is wrong, and it has not done so. Third, those who are experienced in the field, whether acting for employees or employers, may consider the approach is correct and does not lead to injustice in practice.

 

35. It follows that the law remains as it has been for the last 40 years and I express no view about whether that is correct.

 

34. Therefore, while the Supreme Court recognised the long standing of the Burchell test, and pointed out the significant difficulties inherent in challenging that non statutory test at this stage, it did, rather pointedly, indicate that they were not expressing any view about whether the non-statutory test is correct and that they had not heard any argument in relation to that point. At the least, the Supreme Court questioned whether the "reasonable responses" test should be challenged at the final appellate level. However, at present, it remains the law.

 

Relevant Findings of Fact

 

35. The claimant had worked for approximately two years as a yard operative in the respondent company's scrapyard in Duncrue Street.

 

36. Some six months before his dismissal, the claimant had been subject to different disciplinary proceedings. That earlier disciplinary hearing had taken place on 8 March 2017. It had been chaired by Mr McKenzie (junior) who had been at that stage a director and a manager of the respondent company. Mr Foote attended as a note taker.

 

37. On that occasion there were four disciplinary charges which can be paraphrased as;

 

(i) that the claimant had taken an excessive amount of sick leave; 19 days in five months.

 

(ii) That the claimant had failed to comply properly with internal sickness certification or self-certification procedures.

 

(iii) That the claimant had not notified the respondent company properly of his sick absences by phoning in as required by internal procedures.

 

(iv) That the claimant, together with another employee, had contributed to an accident on 14 February 2017.

 

38. The 19 days sick leave, largely taken for unrelated reasons, was not disputed by the claimant. Further, he did not dispute that he had failed to comply with self-certification procedures on at least some occasions. He did not dispute that he had failed to comply with the requirement to phone in to the respondent company if he was going to be absent on sick leave on at least some occasions. In relation to the fourth disciplinary charge, he had been injured when he had approached a skid steer vehicle (a tracked vehicle) to speak to its driver, while that vehicle was in operation. That had been in contravention of health and safety procedures. The tracked vehicle had run over the claimant's foot. The driver and the claimant were both subject to disciplinary charges in relation to that accident and both were dealt with in a similar fashion. Mr McKenzie (junior) concluded that the charges had demonstrated a failure on the claimant's part to follow either procedures or instructions.

 

39. The claimant received a final written warning on the first and fourth charges and a written warning on second and third charges.

 

40. The claimant appealed. That internal appeal was heard by Mr McKenzie (senior). A Mr Russell attended that appeal meeting as a note taker. The result of that appeal was that the sanction for the first disciplinary charge was reduced from a final written warning to a written warning. The final written warning in relation to the breach of health and safety procedures remained in force.

 

41. The tribunal is content that the procedure in relation to these disciplinary charges had been conducted fairly. The tribunal is also content that the claimant had demonstrated a disregard for the internal procedures of the respondent company in relation to sick absences, self-certification and reporting absences. He had also shown a disregard for sensible health and safety precautions in approaching an operational vehicle to chat to its driver in a dangerous environment such as a scrapyard. At that point, the tribunal is content that the respondent company could reasonably have dismissed the claimant for gross misconduct. The respondent company chose not to do so and imposed a lesser penalty which was then reduced on appeal. The conduct of the respondent company in relation to these disciplinary procedures is entirely inconsistent with the claimant's allegation that he had been in some way victimised in these earlier disciplinary proceedings. He had in fact been treated leniently.

 

42. The claimant would have been fully aware from that point in time that he had been subject to a final written warning in relation to the fourth disciplinary charge. He would have been aware that that final written warning could be taken into account in relation to any further disciplinary action.

 

The final written warning, in a letter of 8 March 2017, stated;

 

"I would encourage you to do everything in your power to ensure no further disciplinary action is necessary as this could result in your dismissal."

 

The Staff Handbook stated at paragraph 13;

 

"If a final disciplinary warning has been validly issued and is still current, then the company is entitled to take this into account when considering whether to dismiss for a subsequent act of misconduct, even if the two acts of misconduct are for different matters. However, the company will have to have regard to the degree of difference or similarity between the different matters, when deciding what sanction to impose."

 

43. There was therefore no requirement, either as a matter of internal procedure or as a matter of law, that a final written warning for misconduct could only be taken into account if the subject matter of subsequent charges was identical or even similar to the subject matter of the final written warning offence. The degree of similarity had to be taken into account by the respondent, but it was not a determinative factor.

 

44. In any event there was a common theme between the charges in March 2017 and the later charges, to which the tribunal will turn shortly, which were brought in September 2017; a settled disregard on the part of the claimant for normal policies and procedures and a failure on his part to accept normal instructions or control from management. That was a particularly important issue in a dangerous industrial environment as such as a scrapyard.

 

45. A note issued to all staff on 12 September 2017, one week before the relevant incident, which reminded all staff of the importance of working their contracted hours and which referred to clocking in procedures. The tribunal is satisfied that this notice went to all staff. It appears to be the case that one member of staff claimed not to have received it but that had been rectified by the notice being sent to that member of staff by post. The claimant argued before the tribunal that it had not been sent to all staff although he produced no evidence to support that allegation. Furthermore, the claimant accepted without hesitation that he himself had received this notice.

 

46. On 19 September 2017, Mr McKenzie (junior) spoke to the claimant in the weighbridge area, where staff clocked in and out. Three other members of staff were present at that time. Mr McKenzie raised the issue of clocking in and out of work. The claimant had been in a habit of clocking in to work in his ordinary clothes, before he put on his PPE and therefore before he was actually ready for work. That had been contrary to the respondent company's procedures. The claimant had also been in the habit of preparing his lunch and getting it ready before he actually clocked off for his lunch break. Again that had been contrary to the respondent company's procedures. Mr McKenzie told the claimant that he had not been the only one who had not been following the correct clocking in and out procedures.

 

47. The claimant alleged to the tribunal that he had been "humiliated" by this conversation. The tribunal does not accept that this was true. Mr McKenzie had raised the matter informally and had made a particular point of telling the claimant that other staff had done the same thing as him. The three people who were present during this conversation were people who would have been present in any event when the claimant had clocked in and out of work and would therefore have already observed his failure to follow the respondent company's procedures. In any event, the claimant reacted aggressively to this conversation with Mr McKenzie (junior).

 

48. Later on the same day, the claimant asked Mr McKenzie (junior) if he could have a further conversation with him at the end of that working day to discuss this matter. The claimant stated that he wanted to have this meeting at 5.30 pm so that he (the claimant) could inspect at what time those staff, who had been employed until 5.30 pm, were leaving the premises. Mr McKenzie advised him that the performance of other staff was not his particular concern. Mr McKenzie invited the claimant into his office to discuss the matter further before things escalated by leaving it to sit until the end of the working day.

 

49. The claimant told Mr McKenzie that he felt that he had been unfairly singled out in relation to his time keeping. However it was clear that Mr McKenzie had had the same discussion with another employee on that same day. That other employee had taken the informal discussion of this issue in good part and had not created any problems.

 

50. The claimant felt that the note of 12 September 2017 had been directed to him personally. The tribunal is satisfied that it had not been directed at him personally. The claimant was concerned about how other members of staff observed the clocking in and out procedures and indicated that he would stay on the premises until 5.30 pm, when he was due to finish at 5.00 pm, to observe how those other staff clocked out. Mr McKenzie again advised him that this was not his concern. He advised the claimant again that internal procedures meant that he should have been in his work gear and PPE whenever he clocked in or out of work. At that point the claimant walked out of Mr McKenzie's office and indicated that he was not willing to talk to Mr McKenzie any further. Mr McKenzie told him to return and not to leave because the conversation had not finished. The claimant ignored that instruction and walked away.

 

51. Mr McKenzie (junior) contacted Mr McKenzie (senior) to see how this problem could be managed. Mr McKenzie (senior) attended the scrapyard to discuss matters with the claimant.

 

52. When Mr McKenzie (senior) reached the Duncrue Street site, he called for the claimant. The claimant was still very angry. Mr McKenzie dealt with the informal discussion between his son and the claimant, in which his son had reminded the claimant to follow correct clocking in and clocking out procedures. He advised the claimant to take this discussion "on the chin" ie to accept it and get on with it in the same way as the other employee had done.

 

The claimant told the tribunal that he had taken offence at the use of this phrase. The tribunal's conclusion is that if he had done so, it had been utterly unreasonable to take offence at such an anodyne remark, where it had been obvious that Mr McKenzie had been simply pointing out to the claimant that his son had raised a normal procedural matter in a calm and civilised way and where no offence could reasonably have been taken by the claimant.

 

53. The claimant told Mr McKenzie that he was not willing to "take it on the chin". He stated further that he had already said whatever he wanted to say to his son and that he was not willing to speak further about this matter to either Mr McKenzie (senior) or to his son. The claimant walked away from Mr McKenzie (senior). The conversation had not been over at this point.

 

54. Mr McKenzie (senior) told the claimant that he was suspended and the claimant left the premises.

 

55. Mr McKenzie (senior) contacted Mr Foote, who acted as the respondent company's HR consultant. Mr Foote agreed to undertake the investigation and to determine the disciplinary hearing.

 

56. Mr Foote obtained a witness statement from Ms Patterson, Mr McKenzie (junior) and also obtained a record of the clocking in system. He also obtained a copy of the memo that had been sent on 12 September 2017 to all staff. He had a brief telephone conversation with the claimant.

 

57. At the tribunal hearing, the claimant alleged that the investigation had been deficient in that Mr Foote had not personally gone to the respondent's premises to inspect whether a CCTV camera had been available in relation to either the discussions with Mr McKenzie (junior) or the discussion with Mr McKenzie (senior). The tribunal finds that that suggestion is fanciful. Mr Foote had asked Mr McKenzie for copies of all relevant CCTV footage. Any CCTV footage was firstly not in relation to the relevant areas and secondly, even if it had been, it would not have contained any audio content. It had not been up to Mr Foote or to anyone else conducting an investigation on behalf of the respondent company to personally inspect the premises. Mr Foote had conducted a reasonable investigation by raising the point and taking his client's instructions.

 

58. On 21 September 2017 four charges had been put to the claimant. Those charges were;

 

"1. that you failed to comply with the clocking in and clocking out requirements properly, specifically on how you log your time on taking your breaks;

 

2. that when your line manager Sergio McKenzie junior attempted to speak to you about clocking in and out you were wholly unreasonable and insubordinate when you accused other people of wrongdoing before you eventually refused to speak to your line manager ever again whilst at work;

 

3. that when your employer Sergio McKenzie senior attempted to speak to you about the same issue you were wholly unreasonable and insubordinate when you told him you would not speak to Sergio McKenzie junior ever again or your employer Sergio McKenzie senior whilst at work;

 

4. that there has been a breakdown in trust between you and your employer where you told me at the end of yesterday's telephone conversation that you were recording our telephone conversation for the purposes of evidence."

 

59. A disciplinary hearing was held on 22 September 2017 chaired by Mr Foote. Mr Russell attended as the note taker. The four charges were discussed. The tribunal has examined the transcript of the notes taken during the disciplinary hearing. The accuracy of those notes has not been challenged by the claimant. It is clear from that transcript that this had been a relatively lengthy meeting. It had been characterised by a querulous and aggressive attitude on the part of the claimant, where he challenged and questioned everything and did not attempt to properly deal with the charges put to him.

 

60. The four charges were upheld. The tribunal accepts Mr Foote's evidence that the second and third charges ie the charges relating to the conversations between the claimant and Mr McKenzie (junior) and then with Mr McKenzie (senior), were the most serious charges.

 

61. The claimant was summarily dismissed. That dismissal was notified to the claimant in a lengthy letter (five pages) dated 22 September 2017 in which Mr Foote dealt in detail with each of the four charges. He advised the claimant that he had been summarily dismissed with effect from the date of that letter. The claimant was advised specifically that if he felt unhappy with the outcome he had a right of appeal, which should be lodged on or before Friday 29 September 2017. The Handbook provided that if an employee wished to appeal a disciplinary decision, he should do so within five working days of being informed of the disciplinary sanction. The tribunal is content that the time allowed by Mr Foote for the appeal was the correct time to be afforded to the claimant under the internal procedure.

 

62. For some reason, the claimant sent an appeal on 29 September 2017 by email to Mr Foote but sent it to an old email address which he had gleaned from the earlier disciplinary proceedings, which had taken place some six months previously. The letter of dismissal had made the position in relation to the submission of an appeal quite clear and had specifically stated that any such appeal should be accompanied by written reasons which should be sent to Mr Foote at a particular and current email address which was given in that letter. It was for the claimant to read the letter properly and to send any appeal to the proper email address provided. The fact that the client had sent a letter of appeal by email to an incorrect email account with Mr Foote's former employer cannot be laid at the door of the respondent.

 

63. On 9 October 2017, the claimant emailed Mr Foote (at the correct email address) to ask for confirmation of receipt of the email of 29 September 2017. He did not attach or forward that earlier email. Mr Foote replied immediately by email that day indicating that he had received no email on 29 September 2017. Mr Foote asked the claimant to forward his request for an appeal.

 

Again on 9 October 2017 the claimant sent Mr Foote a new letter of appeal rather than simply forwarding the earlier letter of appeal.

 

64. Mr Foote advised the claimant that the dismissal letter had been very clear in explaining that any appeal should be sent no later than 29 September 2017 and that the new appeal, which was the only appeal that Mr Foote had seen at that stage, was out of time.

 

65. At that point, when it had been made clear to the claimant that his appeal was not accepted by the respondent company, he still did not forward the earlier email of 29 September 2017 and he did not attempt to explain why that email had been sent to an incorrect email address. He did not raise that matter further with the respondent company.

 

66. The internal time limit for the appeal had been reasonable and it clearly had been breached. The LRA Code of Practice provides at paragraph 47;

 

"Employees who have had actions taken against them on conduct or capability grounds should be given the opportunity to appeal. It is useful to set a time limit for an employee to ask for an appeal - five working days is usually enough."

 

DECISION

 

67. The respondent company took into account the previous final written warning. The tribunal concludes that it had been entitled to do so. The circumstances which gave rise to that final written warning had amounted to gross misconduct which could have had serious implications for the respondent company. In an industrial environment, such as the scrap metal yard, the respondent had been entitled to conclude that it was vital that all members of staff strictly observed health and safety procedures and that they did not put themselves or others at risk.

 

68. The circumstances surrounding that final written warning indicated an unwillingness on the part of the claimant to follow procedures or policies set down by the respondent company. He seemed to regard himself as immune from such procedures, whether those procedures were in relation to health and safety as with the final written warning, or whether those procedures were in relation to simple matters such as phoning in sick or providing self-certification documents. That was consistent with the subject matter of the charges laid in September 2017 where again the claimant had demonstrated an unwillingness to accept any form of instruction from management and an unwillingness to follow ordinary procedures in relation to clocking in and clocking out.

 

69. The four charges when taken together were more than sufficient to justify a reasonable employer, acting reasonably, in summarily dismissing the claimant. In fact, either the second or third charge, on their own, would have been sufficient for a reasonable employer acting reasonably, to have done so.

 

70. As indicated above, in an industrial environment such as scrap metal yard, with obvious and significant risks to the health and safety of employees and indeed to customers, the respondent company was entitled to take a very serious view of any employee who failed to follow procedures and indeed showed that he was unwilling to follow procedures. This was even more pressing where the employee concerned indicated, by turning his back on his line manager and on the owner of the company and indeed in walking away from both, that he was not prepared to regard himself as being subject to any form of management instruction.

 

71. The reason for the dismissal had been the claimant's conduct. The tribunal is content that the investigation had been thorough. This had not been a complicated matter which required an elaborate or lengthy investigation. It concerned clocking in and clocking out procedures and essentially two conversations with Mr McKenzie (junior) and Mr McKenzie (senior) and then, to a lesser extent, the issue of the telephone call between the claimant and Mr Foote. The suggestion that Mr Foote had in some way been deficient in his investigation because he did not personally inspect the site and check for the existence of CCTV cameras, which could not in any event have assisted the investigation of this matter, is fanciful.

 

72. The tribunal is also content that the investigation had led to a reasonable belief in guilt by the respondent company. It is difficult to see how any employer could have come to any different conclusion than that the claimant had obviously been guilty of the disciplinary charges. The respondent company had clearly reached that conclusion.

 

73. The tribunal is also content that, in the circumstances, a summary dismissal was a reasonable and indeed the only possible penalty to be imposed in these circumstances. The claimant's conduct had clearly warranted summary dismissal, rather than a dismissal on notice. It had not been a first offence. A final written warning had still been in existence. His misconduct had in any event been serious; it had been "a deliberate and wilful contradiction of the contractual terms". Looking at the issue objectively, that penalty had been within the band of reasonable responses.

 

74. The tribunal is also content that the procedure had been correctly followed. It is again fanciful for the claimant to suggest that in some way the fact that he could not or did not read the clear statement in the letter of dismissal to the effect that an appeal should be lodged within the stated time limit at a stated email address and that he had instead sent it to an entirely different and incorrect email address that he had obtained elsewhere, indicates in any way that the respondent company had failed to comply with the procedure laid down in the Employment (Northern Ireland) Order 2003.

 

75. In short, the claim for unfair dismissal is dismissed.

 

 

 

 

Vice President:

 

 

Date and place of hearing: 21 November 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: