United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr G Aldars (of Counsel) Messrs Hill Taylor Dickinson Solicitors Irongate House Duke's Place London EC3A 7LP
For the Respondent	Mr J Suddaby (of Counsel) Messrs O H Parsons & Partners Solicitors 3rd Floor Sovereign House 212-224 Shaftesbury Avenue London WC2H 8PR


 


JUDGE JOHN BYRT QC: This is an appeal against a decision promulgated on 17 November 1997 of an Employment Tribunal sitting at Southampton. By a majority they held that the employee Mr Newby had been unfairly dismissed. It is against that decision that the employers appeal.

The facts are as follows. Mr Newby, the employee, was a Second Electro-Technical Officer on board SS Canberra, a cruise liner, owned and operated by the Appellants. He was subject to a hierarchy of superior officers. First there was a Mr Grubb, the First Electro-Technical Officer; then a Mr Jamison, who was the Chief Electro-Technical Officer, and then Mr Hill, Chief Engineering Officer.

Something needs to be said about the mechanics of the Canberra. It is a turbo electric vessel. There are steam turbines on board which generate electricity. The electricity drives the main alternators which in turn drive the main motors, attached to each of two shafts to the propellers. The main alternators cannot operate without a unit called the main exciter. The ship has four main exciters which are vital to the operation of the ship. There is one pair of exciters each side of the ship, correlated to each of the propeller shafts. Of that pair, one is in regular operation and the other is held in reverse. They have to be subjected to regular maintenance in order to ensure that they retain all the necessary insulation to make them work properly. The humidity of the engine room, especially in the tropics, is liable to interfere with insulation.

On 21 March 1997, the Canberra was in the tropics. Mr Newby discovered that the number 1 main exciter was poorly insulated. He informed his supervisor Mr Grubb who instructed him to strip off the cover and rectify. Mr Newby did so. He eventually brought in a portable heater blower to dry out the main exciter affected. It seemed that, having done so, he had cured the problem.

On 23 March Mr Newby was again on duty. His was the early morning shift between 4.00 am and 8.00 am. The ship was about to enter the Panama Canal from its west end and was on standby. That is a state of alert when a number of safety precautions have to be taken relating to the ship's staffing and its general management. At the end of Mr Newby's shift, he checked the main exciters and in particular the one which had caused problems two days earlier. He found it was again defective. On this occasion he applied the heater blower as he had done last time, and assumed that that would cure the problem. He came off shift one hour late, that is at 9.00 am. He reported the problem relating to the number one main exciter to Mr Grubb and then went to the officer's Wardroom. Since one of the main exciters was suspect, there was no spare main exciter on one of the two propeller shafts. Mr Jamison, the Chief Electro-Technical Officer, viewed this as a serious problem which required immediate rectification. He deemed that it was sufficiently serious to require both off duty Electro-Technical Officers to come back on duty to assist him with the task in hand. Mr Newby was one of those off-duty officers.

Mr Grubb was sent to the officer's Wardroom at about 9.00 am in the morning in order to relay Mr Jamison's orders to Mr Newby. He did so but Mr Newby refused to comply with it and he remained in the Wardroom. Thereafter the finding of the Employment Tribunal is that Mr Grubb made further repeated attempts to get Mr Newby to come up and assist. Mr Grubb says he could not recall whether Mr Newby gave any explanation for his refusal and he did not recall saying that his instruction had emanated from Mr Jamison, but Mr Grubb reported to Mr Jamison, Mr Newby's refusals to attend and Mr Jamison instructed him to go on trying again.

Mr Newby by now was in his cabin, and Mr Grubb first telephoned him there. On relaying Mr Jamison's order to him, Mr Newby is said to have said, "Fuck it" and then put the telephone down on Mr Grubb. Mr Grubb then attended Mr Newby's cabin and found the door locked. He therefore put a note under the door telling Mr Newby to report to Mr Jamison.

Thereafter the evidence, accepted by the Employment Tribunal, was that Mr Jamison attempted to ring at half hourly intervals. Eventually at 3.30 pm, Mr Newby reported to Mr Jamison. At that point, he was removed from duty on account of his disobedience of instruction and was told that there would be a disciplinary hearing. That hearing took place the next day at 2.00 pm, 24 March. The disciplinary hearing was conducted by the ship's Master. In the course of the hearing, Mr Newby stated in support of his defence that he did not realise Mr Grubb was relaying orders from Mr Jamison. He admits that he should have obeyed Mr Grubb's instructions to attend the Engine Room. He said that he knew of the fault relating to the main exciter and he apologised. In mitigation he said he had been down below on an extended shift lasting some five hours. The Master found that Mr Newby was in breach of clause 9, sub paragraph 9 of the Code of Conduct for the Merchant Navy. This is not a Code of Conduct prescribed by the Appellants, P&O, but in fact applies throughout the Merchant Navy. Clause 9 is a clause which says that dismissal is likely to be the outcome in the case of disobedience of orders relating to the safety of the ship.

The Master found that Mr Newby had been seriously negligent in the discharge of his duties and he forthwith dismissed him from the ship and directed that he be repatriated back to the United Kingdom as soon as possible. On 9 April, further proceedings took place at P&O headquarters in Southampton, in which the decision of the Master was reviewed and his decision upheld. Mr Newby on that occasion stated that he did not realise the seriousness of the instructions he had received. He was exhausted, but then admitted that he had remained in the officer's wardroom from 9.00 am to 12.30 pm when he went to this cabin.

In mitigation, it was urged that he had a 25 year record of good character, but in this instance he had acted out of character. Notwithstanding those points being made on his behalf, the hearing at Southampton confirmed the Master's decision. Mr Newby subsequently appealed and that appeal was dismissed.

When this matter came before the Employment Tribunal, all three members agreed that the order given to Mr Newby was a legitimate and reasonable order. It was accepted that Mr Newby should have obeyed that instruction and that as a result of his refusal to do so, disciplinary action of some sort was justified. There was no dispute or disagreement that the code of discipline was relevant to the situation. It was accepted that Mr Newby had been found guilty of an offence under clause 9, sub-paragraph 9.

The point of disagreement amongst the members of the Tribunal, the Chairman being in the minority, was that the sentence imposed by the Master confirmed by the proceedings in Southampton, that he should be dismissed, was too severe and the question which the majority are said to have asked themselves was had the employer acted reasonably in dismissing Mr Newby.

They reminded themselves that it was not their function duty to substitute their own personal opinion for that of the employer. They recognised that there was a band of reasonableness within which the employer's decision had to be considered.

The facts they took into account were that Mr Newby had this unblemished record of 25 years service, that on this occasion in refusing to accept instructions, he had acted completely out of character. The findings state that judging by the misdemeanour of Mr Newby before the Master, it was clear to the majority of the Tribunal that he was not aware he was committing a serious offence. Fourthly, they found that Mr Newby had no reason to believe that the heater blower would not be as effect on the occasion of 23rd March as it had been on the 21st. Five, he was not aware that the instructions were those of the Chief Electro-Technical Officer, Mr Jamison, because he had spoken to him only recently, after coming off duty and Mr Jamison had at that stage not suggested an emergency situation existed. Six, they found that the evidence before the Employment Tribunal demonstrated considerable ambiguity on board ship concerning the seriousness of the problem. Seven, that there was no evidence to suggest that the problem in any way was to be seen as an emergency. Eight, they found that it was not surprising that Mr Newby did not appreciate at the time Mr Grubb was requiring him to respond to an emergency situation, and in support of that opinion, they said he had but recently spoken to the Chief Electro-Technical Officer. He had been on a long extended watch, in very hot and humid conditions, and last, that he had not intended to behave wilfully in an emergency situation or put the ship in danger.

Taking all those factors into account, the majority of the members of the Tribunal came to the conclusion that a reasonable employer would not have dismissed Mr Newby. The Chairman who was in the minority, set out his reasons for deciding the way he did in paragraph 26 of the extended reasons. He started off by putting the employer's decision in the context of a Master of the Merchant Navy and he emphasised that this was no case of a refusal of instructions in the heat of the moment. He went on to assert that Mr Newby had been given ample opportunity for reflection in regard to the efforts Mr Grubb had made to get him to go below and he was met with the response that Mr Grubb was to "Fuck it".

The Chairman agreed with the majority in this respect, that the order Mr Newby had been given was legitimate and reasonable. He says that Mr Newby did not question the reason for the order; he merely rejected it out of hand. He knew the ship was on standby and that there was a fault in the main propulsion system, and he concluded that the Masters decision was one which no reasonable Master in the Merchant Navy could reasonably have failed to make.

We have heard submissions made by Mr Aldars on behalf of the Appellants, the employers and by Mr Suddaby on behalf of Mr Newby. We think it was essential that the Tribunal, in deciding whether the decision of the employer was a reasonable one, one within that broad band of reasonable decision for a reasonable employer to make, had to put themselves into the context of the relevant circumstances. The employer was represented through the persona of the Master of the Ship, in a command of a valuable ship with many officers and men on board. The Tribunal should have viewed this matter placing themselves in the shoes of that Master. We take the view that the majority were reminded by the Chairman of the law correctly, but at the end of the day, they ended up by asking themselves the wrong questions. They made findings of facts which in our view, implicitly challenge the offence with which Mr Newby had been convicted, namely, an offence under clause 9 sub-paragraph 9. They failed to place themselves in the position of the Master, with a man standing before them who had been found guilty of that serious offence. It is to be noted that the majority of the Tribunal never challenged the finding made against Mr Newby by the Master. It was only a question whether the sentence of dismissal was one which no reasonable Master in the Merchant Navy could have made.

In our judgment, though reminded by the Chairman of the relevant law, the majority erred in that they substituted their own opinion and judgment for that of the Master who had held the disciplinary hearing. In our view, that amounts to an error of law.

Accordingly, the appeal will be allowed.

Now Mr Aldars and Mr Suddaby, the question is, do we in fact substitute our own finding, replacing the decision of the minority for that often majority or do we remit this matter for a further hearing before a freshly constituted Tribunal. Have you any submissions you wish to make Mr Aldars?

Having found that the majority were guilty of an error of law in the way that they approached the facts as they found them, we consider the proper decision is to remit this matter to a freshly constituted Tribunal, and that is our order.