Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5119/17

 

 

 

CLAIMANT: Fousseny Eric Traore

 

 

RESPONDENT: Royal Mail Group Limited

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and the claimant's claim is dismissed, without further Order.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Leonard

Members: Mr N Jones

Mr I Atcheson

 

Appearances:

 

The claimant appeared and represented himself.

 

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Carson McDowell LLP Solicitors.

 

 

 

INTRODUCTION

 

1.             By claim form received by the Office of Tribunals on 3 September 2017, the claimant claimed unfair dismissal. His claim included (at paragraph 8.1 of the claim form) the assertion that he had been intimidated by his line manager for a while until one day she grabbed him by his fleece and told him to shut up in front of another (named) colleague he was arguing with. He stated that he felt humiliated and insulted in front of other colleagues. He further stated that he explained the incident to his trade union representative and then made a complaint and, after investigations, he was dismissed from work. His claim to the tribunal asserted that he had done nothing wrong and that he was the victim and the one who was assaulted.

 

2.             In a response to this claim dated 27 October 2017, the respondent took fundamental issue with the contention that the claimant had been unfairly dismissed and stated that the claimant had been fairly dismissed for gross misconduct after a fair and proper process. Detailed grounds of resistance were provided.

 

3.             The tribunal received into evidence an agreed bundle of documents running to some 276 pages and a witness statement bundle, as directed at a Case Management hearing. The tribunal, after the following witnesses had been called to give evidence and had adopted their respective witness statements before the tribunal, heard oral evidence, given under cross-examination or in response to the tribunal's questions, from:

(a)        the claimant;

 

(b)        Mr Kevin Carabine, former Delivery Sector Manager for the respondent's Belfast South Delivery Area, who dealt with a complaint by the claimant under the respondent's Bullying and Harassment Procedure and who, upon conclusion of that procedure where the claimant's complaint was not upheld, determined that the matter would be referred for a disciplinary investigation concerning the claimant's complaint;

 

(c)        Mr Andrew Bell, Customer and Business Quality Business Partner, who heard the disciplinary case against the claimant and who made the decision to dismiss the claimant for gross misconduct; and

 

(d)        Mrs Collette Walker, Independent Case Work Manager, who conducted the claimant's appeal against the dismissal.

4.             The parties concurred in agreement that the tribunal would determine the liability issue only and thus the issue to be determined by the tribunal was whether the summary dismissal of the claimant by the respondent for alleged gross misconduct was fair or unfair, taking into account the relevant statutory provisions which are mentioned below and the guidance available from the case law authorities, being either of a binding or a persuasive status.

 

5.             The tribunal on the balance of probabilities, made the following determinations of relevant fact:-

 

5.1 The claimant commenced employment with the respondent on 27 December 2015. At the material time he was employed as an Operative Postal Grade. He was summarily dismissed from that employment for gross misconduct on 15 June 2017 and he alleges that he was unfairly dismissed. The respondent employed the claimant at the respondent's Downpatrick, County Down, Delivery Office. The Delivery Office Manager was Cherylle Fleming and the Deputy Office Manager was Ciaran Cunningham. The events which primarily concern the tribunal occurred on 1 March 2017. The events appear to be connected to the view being taken by the claimant that he was tasked with delivery work with insufficient time afforded to complete that work. The claimant had discussions with Ciaran Cunningham on the morning of 1 March 2017; the tribunal accepts from the available evidence that the claimant was, at least, unhappy that morning with the amount of work being allocated to him. He returned to the Downpatrick office from a delivery run at approximately 3.30 pm that day and he very shortly afterwards engaged in discussions with Ciaran Cunningham. Whilst in his evidence to the tribunal the claimant endeavoured to play down the extent to which he was, or became, agitated or even angry, in regard to his interaction with Ciaran Cunningham, the tribunal believes that there was a relatively heated exchange between the claimant and Ciaran Cunningham. Cherylle Fleming, as Office Manager, when she became aware of this exchange very soon afterwards, endeavoured to intervene.

 

5.2          One of the features of this case is the extent to which there are conflicts in the evidence surrounding some of the key events or circumstances. For example, there was a significant disparity pertaining to versions of specific events which occurred in what must only have been a very short period of time. Things began with the exchange of words between the claimant and Ciaran Cunningham. The claimant's version was that Ciaran Cunningham was insisting that he (the claimant) could conduct a work run, but the claimant maintained that it was not possible. The claimant stated that Ciaran Cunningham was pointing his finger at him and raising his voice. Certain other evidence gathered by the respondent indicated that it was the claimant who was raising his voice and pointing his finger at Ciaran Cunningham. The claimant denied repeatedly in cross-examination that he was angry or frustrated at the time, but this evidence was contradicted by the witness statement evidence of other individuals who stated that they had witnessed the claimant's demeanour, including witness statements emerging from evidence subsequently assembled by the respondent from a number of witnesses or potential witnesses to the exchange of words between the claimant and Ciaran Cunningham and in some cases relevant to the subsequent events immediately afterwards.

 

5.3          The claimant's account to the tribunal of what he states happened next (which, as the tribunal hearing proceeded, it must be said, included a number of different versions or a number of slightly different accounts, with different aspects being emphasised) was that Cherylle Fleming approached the two and she intervened in the exchange between the claimant and Ciaran Cunningham. The claimant states that he was only talking to Ciaran Cunningham and was effectively not paying any direct attention to Cherylle Fleming. His allegation was that Cherylle Fleming suddenly grabbed the claimant's fleece and pulled it down twice. The claimant, who had not been looking towards Cherylle Fleming contended that he then said to Cherylle Fleming not to pull him. He states that Cherylle Fleming then asked him to come into her office.

 

5.4          In terms of what happened next (giving in his oral evidence to the tribunal under cross-examination a number of slightly differing accounts, including a physical demonstration, for example, as to whether he was initially standing or sitting when Cherylle Fleming next spoke to him) the claimant states that Cherylle Fleming asked him to sit down and to "shut up". He also gave a version in his evidence where she said to him "shhh" a number of times, variously (depending on which account was to be taken as fact) before or after she told him to "shut up". The claimant alleged that he felt humiliated and ashamed on account of this treatment. He then left the work premises and he continued with his work runs to conclude the day. He then spoke to his trade union representative (CWU) and he states that he was advised to issue a grievance, which he did under the respondent's applicable policy. The tribunal had sight of this policy, which formed part of the claimant's terms and conditions of employment. The policy is entitled "Bullying & Harassment Procedure Agreement" and the version seen by the tribunal is dated 1 July 2013. It is hereinafter referred to as "the Policy". There is a fundamental principle underpinning the Policy of "good faith". Thus, Section 3 of the Policy expressly provides that, " complaints raised under this process must be made in good faith". The Policy provides both for an informal approach to resolution of complaints and also for a more formal approach.

5.5          The claimant initially indicated that he wished to proceed under the informal approach provided for by the Policy. The respondent proceeded on that basis. Kevin Carabine, who conducted the applicable investigation under the Policy was employed as Delivery Sector Manager for the Belfast South Delivery Area. A meeting was held on 10 March 2017 attended by Kevin Carabine and by Donal Carabine, one of the witnesses identified by the claimant. Donal Carabine's information was that Cherylle Fleming had remained calm throughout the exchange with the claimant and had never once raised her voice, but that the claimant had become more animated and frustrated as the meeting went on. This account clearly differs from the claimant's own version. Other witnesses were interviewed that day by Kevin Carabine and witness statements were prepared. In every case either the witness interviewed stated that they had not seen anything of note or else the witnesses give an account of events which did not support the claimant's version. Kevin Carabine specifically interviewed both Cherylle Fleming and also Ciaran Cunningham and they denied the claimant's allegations. Kevin Carabine dispatched the various interview notes to the individuals who had all been questioned, so the tribunal understands it, on 13 March 2017, indicating that the notes of all interviews would be shared with the complainant prior to a decision being made. All the material gathered was sent by post to the claimant on 14 March 2017. Having received this material, the claimant by letter dated 17 March 2017 sent to Kevin Carabine, confirmed that he wished the matter to go through the formal procedure, as he disputed the contents of certain of the statements provided to him. Accordingly, the process moved forward under the formal procedure, as opposed to the informal one. That was a matter of the claimant's own choice. The tribunal understands that the claimant made this decision after having obtained advice from his trade union. The claimant completed the applicable form to enable matters to proceed with the formal complaint procedure. It is noted that the complaint form, as completed by the claimant, referred to the alleged incident with Cherylle Fleming on 1 March 2017 but nowhere referred, expressly or by implication, to any allegation of a course of conduct by Cherylle Fleming towards the claimant prior to that date. (It will be noted that included at paragraph 8.1 of the claimant's claim form to the tribunal was the assertion that the claimant had been "intimidated by his line manager for a while").

 

5.6          Having considered the evidence gathered from the various witnesses and having interviewed the claimant, Kevin Carabine made a determination that the claimant's complaint was not substantiated. He issued a letter to the claimant dated 22 March 2017 confirming the outcome: that the complaint was not upheld. He attached a copy of a report which provided detailed reasons for his decision. Further to that, Kevin Carabine stated in the letter: " I also have reason to believe that your complaint was not made in good faith based on the fact that there are witness statements refuting your allegation that [Cherylle Fleming] pulled you by the fleece, which resulted in her removal from the delivery office." This latter is a reference (which was explained to the tribunal) that during the course of this investigation Cherylle Fleming was removed from the Downpatrick delivery office and was deployed elsewhere pending conclusion of the investigation. A case report running to some five pages accompanied the outcome letter. The letter expressly afforded to the claimant a right to appeal the outcome, but the claimant did not institute any appeal. His explanation to the tribunal for not doing so was that he had not been informed or had not noticed that he was entitled to appeal. The outcome was not only that the claimant's complaint was not upheld, but also confirmed that there was reason to believe that the complaint had not been made in good faith and that the complaint had been fabricated to get Cherylle Fleming into trouble.

 

5.7          Paragraph 12 of the Policy (under "General Points", 12, IV) provides for complaints that are, " deliberately false, fictitious or frivolous". The policy states that such complaints "... ( brought in bad faith) undermine the validity of the whole process and damage the basis of good working relationships". The policy continues that, " on completion of an investigation, where an investigating manager believes there is evidence to suggest that a complaint was not made in good faith she/he must decide whether the complaint was so made". The Policy provides that if it is found that a complaint has not been made in good faith, appropriate action may be taken under the Conduct Code, which may include dismissal. A procedure is then set out for the investigation of such a potential disciplinary matter. Paragraph 12 VI (d) of the Policy provides for the various steps to be taken thereafter.

 

5.8          In this case, a disciplinary investigation process was conducted by David Hamill who was the Belfast East 2, Delivery Sector Manager. In his witness statement evidence to the tribunal David Hamill explained that this process would normally have been conducted by someone from the management team in the claimant's delivery office (Downpatrick) but because Cherylle Fleming and Ciaran Cunningham were both involved in the case lodged by the claimant, this was not appropriate and David Hamill had been asked to conduct the fact-finding (as he was otherwise unconnected). David Hamill held a fact-finding meeting with the claimant and his trade union representative on 18 April 2017. David Hamill prepared notes of this fact-finding meeting where he recorded that the claimant maintained to him the account that Cherylle Fleming had grabbed the claimant's fleece and that in her office Cherylle Fleming had told him shut up. An issue was recorded towards the end of the notes relating to a witness statement from a former employee, Adam Herron. David Hamill then informed the claimant by letter that the case had been referred to Andrew Bell, Customer and Business Quality Business Partner, for consideration of any further action, as David Hamill considered that the potential penalty was outside his level of authority.

 

5.9          Andrew Bell invited the claimant to attend a formal conduct (disciplinary) meeting on 31 May 2017 and the claimant duly attended, together with his trade union representative. The tribunal had sight of the copy notes of this meeting. Material to the meeting was the claimant's stance that he was telling the truth and that the other persons who had provided witness statements, which contradicted the claimant's version of events, were not to be believed. When questioned as to what motivation these persons might have had for not telling the truth, the only explanation that was provided by the claimant was that two of the witnesses had gone to school together. Andrew Bell followed up on a number of queries emerging, in order to seek clarification. Andrew Bell questioned the claimant as to why he had not submitted an appeal against the outcome of his complaint under the Policy and the claimant stated to Andrew Bell that he believed he had submitted an appeal, which Andrew Bell stated went against the claimant's credibility. Andrew Bell having clarified a number of issues did not feel it necessary to re-interview the witnesses and he felt that the witnesses would have had no vested interest as they were not work partners of the claimant, nor working closely with the claimant on the relevant day. Andrew Bell met with the claimant to confirm the outcome on 15 June 2017 and he reminded the claimant of his entitlement to be accompanied, which he declined. The outcome, as confirmed, was that the claimant was to be summarily dismissed with effect from 15 June 2017. This oral notification of dismissal was followed up by written confirmation from Andrew Bell, by letter.

 

5.10       Andrew Bell in his witness statement explained the rationale of his decision. He had considered the evidence of six witnesses interviewed, the majority of whom had been put forward by the claimant as witnesses to the alleged incident. None of the witness statements supported the claimant's account and some statements directly contradicted the claimant's version of events. The claimant offered no evidence to the contrary. He simply maintained that he was telling the truth. There was a reference made to a statement from a former employee, Adam Herron, However, Andrew Bell concluded that even if Adam Herron had witnessed the incident any evidence would have been outweighed by the evidence of the other witnesses listed by the claimant. The claimant had been given every opportunity throughout the course of the meeting to provide mitigation but had failed to do so. Andrew Bell had considered, on the one hand, that the claimant had worked for the business for
18 months and that he had a clear conduct record; however, set against this was the conclusion that this was outweighed by the dishonesty in respect of which the claimant had been found guilty.

5.11       The respondent's disciplinary procedure entitled the claimant to an appeal. The claimant appealed and the appeal was conducted by Collette Walker, an Independent Case Worker with responsibility for North of England, Scotland and Northern Ireland. Collette Walker wrote to the claimant on 29 June 2017 inviting him to an appeal hearing to be held on 7 July 2017. The claimant attended this appeal hearing, accompanied by his trade union representative. Collette Walker explained to the claimant that she was to conduct a full re-hearing of the matter. The appeal hearing proceeded and Collette Walker prepared notes of the appeal hearing, which were examined by the tribunal. In her witness evidence to the tribunal, Collette Walker provided an account of the points investigated by her and the reasoning underlying her decision-making, which could be found in her decision report. She particularly wished to emphasise the claimant suggesting that the witnesses had not been telling the truth. As could be seen, she stated, none of the witness interviews that Collette Walker conducted supported the claimant's version of events. She had also reviewed the witness interviews that Kevin Carabine had conducted and, likewise, none of these supported the claimant's version of events. Collette Walker had also considered the claimant's allegation that he had made a face-to-face complaint to Kevin Carabine to the effect that he had felt intimidated by Cherylle Fleming. However Collette Walker noted that Kevin Carabine had strongly disputed that this conversation had ever taken place with the claimant. She regarded Kevin Carabine as being a person who would have taken such complaints seriously. Collette Walker noted that the claimant had consulted with his trade union and had received advice and support prior to making the complaint. She assumed that the consequences of making a complaint of this nature would have been discussed and the claimant would have been aware that action had been taken by Kevin Carabine to remove Cherylle Fleming from her role in the Downpatrick office, as a result of the allegations.

 

5.12       After the appeal hearing had concluded Collette Walker wrote to the claimant enclosing copies of notes from the interview and then Collette Walker went on to conduct further interviews with three witnesses, Michael Totton, Declan Johnston and Donal Trainor. She recorded the evidence gained from these sources and indeed provided the witness statements from these three persons to the claimant on 14 August 2017. She then wrote to the claimant on 26 August 2017 confirming the outcome of the appeal hearing. Collette Walker confirmed in the outcome letter that it was her view that the claimant had been treated fairly and reasonably and that the original decision, summary dismissal, was appropriate. The tribunal had sight of a copy of this correspondence and of Collette Walker's appeal outcome report. Her determination, on conclusion of the appeal, was that the claimant had been dishonest and that he had brought his complaint in bad faith. The honesty of employees was of the utmost importance to the business and accordingly the dismissal stood, unchanged upon appeal.

 

5.13 The tribunal did not require to make any further determinations of fact for the purpose of reaching its decision in this case.

THE LAW

 

6.             Article 126 of the Employment Rights (Northern Ireland) Order 1996 ("ERO 1996") provides that an employee has the right not to be unfairly dismissed by his employer. Article 130(1) of ERO 1996 provides that in determining 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 principle 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. Reasons falling within Paragraph (2) include at Article 130(b) those relating to the conduct of the employee.

7.             Under Article 130(4) of ERO 1996 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.

8.             The case of Iceland Frozen Foods -v- Jones [1983] ICR17 provides helpful guidance concerning the issue of whether an employer has acted reasonably in treating the reason, materially any employee's conduct, as a sufficient reason for dismissal. The guidance available from Iceland Frozen Foods is as follows:-

(1)        The starting point should always be the words [of Article 130(4)] themselves;

(2)        In applying [the Article] an [employment] tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the [employment] tribunal) consider the dismissal to be fair;

(3)        In judging the reasonableness of the employer's conduct an [employment] 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 the [employment] 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.

9. An authoritative commentary in the Northern Ireland jurisdiction concerning this matter is contained in the decision of the Northern Ireland Court of Appeal in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 which case itself makes reference to the earlier case of Dobbin v Citybus Limited [2008] NICA 42.

10. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63 the Court of Appeal provided clear guidance upon the essential issue that the tribunal must not substitute its own view for that of the employer. This has come to be what is known as the "substitution error". Accordingly, the appropriate test to be applied is whether the decision of the employer to dismiss the affected employee was or was not within the band (or range) of reasonable responses of a reasonable employer. This proposes an objective test of the issue from the perspective of the notional reasonable employer.

11. Another helpful (and long-respected) authority regarding cases of misconduct is the case of British Home Stores -v- Burchell [1980] ICR303 in which case Arnold J stated as follows:

" What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds 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 circumstances be a reasonable conclusion".

12. The concept of a band of reasonable responses is pertinent not only to the decision to dismiss but also to the employer's chosen procedure. In cases of alleged misconduct, this encompasses investigative methods chosen by the employer and the manner in which these are pursued and hearings are conducted. Accordingly in order to fall within the band of what is reasonable the employer must carry out a reasonable investigation. This latter is confirmed in the case of Sainsbury's Supermarkets Ltd -v- Hitt [2003] IRLR 23 where Mummery LJ confirmed that the reasonableness of the employer's investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case. The case of Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457 emphasises that the nature and extent of the investigation must be appropriate to the seriousness of the allegation and any far-reaching consequences of the potential outcome. For this reason, a comprehensive investigation is normally required when honesty or integrity of the employee is in issue and when a long-standing career or profession could be brought to an end by a dismissal. It is not for a tribunal to decide what investigations would have been appropriate in the light of evidence heard at hearing, but rather the tribunal is tasked with enquiring if any investigation fell within the band of reasonable responses of a reasonable employer, in all of the circumstances. In the case of A -v- B [2003] IRLR 405 Elias J provides guidance concerning a fair and balanced investigative function, in the following extract for Para. 60 of the EAT's judgment, "... a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him". This latter case was in respect of allegations of criminal misbehaviour, but nonetheless the principle is of broader application to any case with far-reaching and highly significant implications. In Bowater v Northwest London Hospitals NHS Trust Longmore LJ stated, "The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the tribunal to make its judgement always bearing in mind that the test is whether the dismissal is within the range of reasonable options open to a reasonable employer." A helpful case which explains the proper focus of the tribunal is Turner v East Midlands Trains [2012] EWCA Civ 1470 which comments on the inability of unfair dismissal claimants to re-canvass the merits of their case before the employment tribunal and emphasises that the tribunal, which was once regarded as being an industrial jury, is now a forum of review. This point was further emphasised in the case of Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, which indicated that it is not for the tribunal to conduct a primary fact-finding exercise. The function of the tribunal is to review the employer's decision (applying the band or range of reasonable responses test).

13. In regard to any (internal) appeal from an initial disciplinary determination, the case of Taylor v OCS Group Ltd [2006] IRLR 613 CA confirms that potential procedural defects which may attach to an initial disciplinary hearing are capable of being remedied on appeal. This is so provided that any subsequent stages in the process are sufficient to cure any earlier unfairness. For this reason the tribunal's task is to consider the entire process, from end to end as it were, and to determine if this process was fair or unfair in the light of the statutory provisions. On account of all the foregoing principles, the tribunal reminds itself that it has a somewhat restricted jurisdiction in unfair dismissal matters. Accordingly, the tribunal may not re-hear and re-determine the disciplinary decision originally made by the employer (akin to the earlier and now superseded concept of the "industrial jury"). The tribunal may not substitute its own decision for the decision reached by that employer. Having determined the reason for the dismissal, the tribunal has to determine if the employer harboured a genuine belief in the culpability of the employee, after having conducted a reasonable investigation into the alleged misconduct and whether the decision to dismiss was one which fell within the band of reasonable responses. The statutory provisions expressly provide that the determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking which are entitled to be taken into account by the tribunal) the employer acted reasonably or unreasonably in treating the reason as constituting a sufficient reason for dismissing the employee. In general terms the matter shall be determined in accordance with equity and the substantial merits of the case.

T THE SUBMISSIONS

 

14. The tribunal received oral submissions from the claimant and from the representative of the respondent. The respondent's representative, in particular, sought to draw the tribunal's attention to the comparatively recent case of
Leo Fearon -v- Royal Mail Group Ltd [Case Ref: 5608/17] which the representative submitted provided a very recent and comprehensive statement of the applicable law, in that case and in this, made by the Vice President. Whilst the facts in the case of Fearon were somewhat different, nonetheless, the legal principles to be applied were the same. The representative submitted that there had been, consequent upon the unsuccessful complaint under the Policy made by the claimant, cause for concern that the complaint had not been taken in good faith, and accordingly that this breached the terms of the Policy. Such matters as complaints not made in good faith were taken very seriously by the respondent. Accordingly a disciplinary investigation followed which was conducted at all times fairly and properly. A disciplinary hearing followed the investigation at which a decision was taken which fell within the band of reasonable responses of a reasonable employer. The outcome was the summary dismissal of the claimant for gross misconduct. This was followed by an invitation to the claimant to appeal and the claimant did so. The appeal process that followed was, likewise, conducted upon a fair and proper basis. Accordingly, there was no proper basis upon which, so it was submitted, a tribunal could find that the decision to dismiss, upheld on appeal, was either substantively or procedurally unfair and accordingly the claimant's complaint of unfair dismissal ought to fail. The claimant's submissions were confined to the assertion that at all times he had been telling the truth and that the rejection of his case by the disciplining authority both at the substantive disciplinary hearing and also at the appeal stage was unfair. The claimant was unable to identify any specific procedural unfairness and he simply urged the tribunal to believe him and to accept that these events, in respect of which he made the initial complaint against Cherylle Fleming, had indeed occurred and that there was no proper basis to find that he had not made the complaint against Cherylle Fleming in good faith and honestly.

THE TRIBUNAL'S DETERMINATION

 

15. The tribunal has carefully examined all of the evidence and other material made available to it in this case and has noted the submissions made by both parties. The tribunal accepts, without any difficulty, that the statement of the applicable law by the Vice President in the case of Fearon is very helpful and represents a comprehensive exposition of the applicable law concerning such cases of unfair dismissal.

 

16. There were, in this case, two separate processes conducted by the respondent and then an appeal was pursued by the claimant concerning the second of these processes, that latter being the disciplinary process which led to the claimant's summary dismissal. In respect of the first of these processes, the respondent conducted what was, by all accounts, a comprehensive investigation under the Policy, interviewing witnesses the identity of whom was materially suggested by the claimant. None of these witnesses supported the claimant's version of events. The conclusion was not only that the complaint against Cherylle Fleming was unsubstantiated, but also that there was a case to answer that the complaint had been made by the claimant in bad faith. It was determined that this was a proper issue to take forward to the next process, which was the initiation of a disciplinary investigation and then disciplinary proceedings against the claimant. That process was conducted, all times, in a thorough and meticulous fashion by the respondent, with witnesses being interviewed and statements taken. The claimant was fairly and properly provided with any resultant material. He was afforded a proper and fair opportunity to have his own input into the disciplinary process, with representation at all times being afforded to him via his trade union at each stage, if he so chose. The outcome of the disciplinary process was clearly articulated after some additional investigations on the part of Andrew Bell had been conducted to clarify residual issues. The claimant was afforded an appeal by way of a rehearing. There was nothing in this appeal and rehearing process which was procedurally unfair; indeed the claimant did not endeavour to argue any procedural unfairness throughout any part of the process, but instead relied upon the notion of the outcome being substantively unfair, both at the disciplinary hearing stage and also upon the conclusion of the appeal.

 

17. At no time did the claimant ever concede misconduct on his part. Therefore any arguments in mitigation of sanction were not advanced by him; that shall always be a difficulty faced by any party who entirely repudiates the suggestion that he or she was guilty of any misconduct whatsoever. Accordingly the claimant deprived himself of any, as it were, "fall back" position in the process. The ultimate decision by Collette Walker to uphold the finding and the disciplinary sanction, on appeal, was one which, in the view of the tribunal, fell within the band of reasonable responses of a reasonable employer. There is no doubt whatsoever that the respondent viewed the matter in a very serious light and indeed the complaint by the claimant against Cherylle Fleming exposed her to the material detriment of the respondent temporarily transferring Cherylle Fleming away from the Downpatrick premises to another work location pending the conclusion of the investigatory process. That, indeed, was a process which, if the claimant's complaint against Cherylle Fleming had been substantiated, might well have resulted in Cherylle Fleming facing serious disciplinary charges and possibly even the prospect of dismissal. The Policy is quite clear as to the view appropriately to be taken by the respondent of complaints not taken in good faith. It is correspondingly clear that the respondent took a very serious view of dishonesty, generally, in regard to the nature of the respondent's business and the trust properly required to be placed in individual workers in carrying out their day-to-day activities. It has to be said that there was an issue concerning the claimant's personal credibility noted at various points throughout the respondent's internal processes. The inconsistency of the claimant's evidence upon certain key issues and also some subsidiary issues and the various versions of alleged facts advanced by him at various times during the course of the oral hearing were also noted by this tribunal. The issue of cogency and credibility of the claimant's evidence was fundamental to these processes. The claimant had fundamentally contradicted the evidence of other witnesses, leading ultimately to the respondent's conclusions as to his dishonesty. The tribunal must, with regret, observe that the claimant's approach to this tribunal is itself reflective of some of the concerns which were noted by the disciplinary authorities in the respondent's processes.

 

18. For these reasons the tribunal unanimously is of the view that the dismissal cannot be held to be unfair. Accordingly the claimant's claim of unfair dismissal is dismissed by the tribunal, without further order.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 30 April & 1 May 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: