Johnston v Fivemiletown Creamery [2010] NIIT 07030

THE INDUSTRIAL TRIBUNALS

CASE REF: 7030/09

CLAIMANT: Mervyn Alexsandra Johnston

RESPONDENT: Fivemiletown Creamery

DECISION

The unanimous decision of the Tribunal is that the claimant's complaints of unfair dismissal and of discrimination contrary to the Disability Discrimination Act are dismissed.

Constitution of Tribunal:

Chairman: Mrs A Wilson

Panel Members: Mr J Martin

Mrs V Walker

Appearances:

The claimant did not appear nor was he represented.

The respondent was represented by Mr Conor Mullan Barrister-at-Law instructed by Murnahan and Fee, Solicitors.

The Issues

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

(b) Was the claimant disabled within the meaning of the Section 1 of the Disability Act?

Sources of Evidence

2. The Tribunal considered the claim form, the response, documents handed in by the respondent together with the sworn testimony of Mr Tim Candor, Operations Manager and Mr M McCaughey, Managing Director for the respondent.

The Tribunal has considered Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and having considered the information before it decided to dispose of the proceedings in the absence of the claimant.

Findings of Relevant Fact

3. The claimant was employed by the respondent from 5 December 2005 until his dismissal on 24 July 2009.

4. The claimant was initially employed as a storeman in Fivemiletown creamery, the creamery owned by the respondent. In or around 22 July 2007 the claimant became ill and was absent from work by reason of his illness until in or around 1 October 2007. The claimant was an in-patient in Tyrone and Fermanagh Hospital for 3 weeks during this period and all medical certificates submitted by the claimant recorded the fact that he was suffering from “anxiety states”.

5. During the claimant’s sick absence his duties as storeman were carried out by another employee and on his return his role was changed to that of production operative within the creamery.

6. In or around 2009 the respondent became aware that there were difficulties with the claimant's standard of work and his general behaviour. In particular a number of complaints were received regarding the claimant’s behaviour towards his co-workers. Co-workers complained that the claimant was making false accusations against them and that there was a sexual element to many of the false accusations being made.

7. In an effort to deal with the situation attempts were made by the respondent to move the claimant to positions in different locations within the creamery. However irrespective of where the claimant worked the complaints continued.

8. On 22 July 2009, Mr Candor the operations manager for the creamery was approached by 3 female members of staff, 2 of whom were in tears. All 3 were distressed and frightened and indicated that they no longer wished to work in the same room as the claimant due to his behaviour in subjecting them to false innuendo and rumours. By way of example he accused one female colleague of making nuisance telephone calls to him in the early hours of the morning. Another complaint related to an invitation he issued to a male colleague suggesting that he call to his [the claimant's] house that night to witness him having sexual relations with a female colleague. A third example of complaints being made related to a comment made by the claimant intimating that he was the father of a colleague's child.

9. The above are examples of the offending behaviour of the claimant towards his female colleagues. Complaints had earlier been made by male colleagues to the effect that he had accused them of stealing a trailer and there were additional earlier complaints that colleagues had caused damage to his home and committed theft from his home.

10. The events which occurred on 22 July 2009 and described at paragraph 6 above brought matters to a head. There followed a further complaint from a young female colleague on the morning of 24 July.

11. The rumours spread and the accusations made by the claimant were found by the respondent following investigation to be completely without foundation and the behaviour of the claimant was found to be unacceptable, inappropriate and contrary to the respondent's work related policies.

12. The claimant was aware of the respondent's disciplinary rules and procedures having had them explained to him and been furnished with a copy of them on his induction at the commencement of his employment. Similiarly he was familiar with the respondent's work related policies.

13. Examples of behaviour which was considered to amount to gross misconduct were outlined within the respondent's disciplinary rules and procedures and included “Acts of incitement or actual acts of discrimination, victimization or harassment on the grounds of sex, race, religion, political opinion, colour, ethnic origin, or disability or harassment for any other reason".

14. The claimant was invited by Mr Candor to a disciplinary meeting on

24 July at 3pm and informed of his right to be accompanied. He attended alone, was again reminded of his right to be accompanied and chose to proceed without anybody to accompany him.

15. During the course of the disciplinary hearing, at a time when the allegations were being discussed the tone of the claimant changed and he became angry. He made certain allegations against colleagues and against the respondent. In particular he alleged that he was owed £12,000.00 by the respondent. This and all allegations made were considered by the respondent and found to be completely without foundation.

16. All allegations put to the claimant during the course of the disciplinary hearing were denied by him. However Mr Candor was of the opinion following the hearing and informed by the results of the investigation into the allegations made against the claimant that the claimant has committed gross misconduct and should be dismissed.

17. The claimant was dismissed by letter dated 29 July 2009. He was informed of and availed of his right to appeal. His appeal was heard by

Mr Mervyn McCaughey, the Managing Director of the creamery who upheld the decision to dismiss.

Disability Discrimination

The Law

18. It is the claimant’s case as stated in his IT1 that he was subjected to discrimination contrary to the Disability Discrimination Act 1995 [the Act]. In considering this aspect of his complaint the Tribunal must as a first step determine whether the claimant is disabled within the meaning of the Act.

19. Section 1 of the Act under the heading “Meaning of “disability” and “disabled person”” provides as follows:-

“(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

20. Normal day to day activities for the purposes of section 1 of the Act are set out in Schedule 1 as follows:

“(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following -

(a) mobility;

(b) manual dexterity;

(c) physical co-ordination;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.”

21. It is for the claimant to satisfy the Tribunal that he suffers from a disability within the meaning of the Act. The Tribunal is satisfied that the claimant was absent from work for a period of in or around 8 weeks during 2007 and that during this period he spent some 3 weeks in hospital. The Tribunal is further satisfied that the claimant at that time suffered from anxiety states. However in the absence of any evidence as to his exact impairment or the effect of any such impairment on his day to day activities the Tribunal is unable to make a finding that the claimant was disabled within the meaning of the Act. In these circumstances his complaint in so far as it relates to disability discrimination is dismissed.

21.

Unfair Dismissal

The Law

22. Article 130 of the Employment Rights (Northern Ireland) Order 1996 [the Order] in so far as is relevant to this case provides as follows:-

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

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

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

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

(a) …..

(b) relates to the conduct of the employee,

(c) ……

(d) …....”

23. Having found that the dismissal occurred because of the unacceptable and inappropriate behaviour of the claimant which was treated by the respondent as amounting to gross misconduct, the Tribunal find that the dismissal was for a potentially fair reason within the meaning of the Order.

24. Having decided upon the reason for the dismissal, the Tribunal must now go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4) of the Order. Article 130(4) states that where the employer has fulfilled the requirements of subsection (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 administration of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

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

25. The Tribunal found the following case law of assistance in considering Article 130(4):-

British Home Stores v Burchell [1980] ICR 303.

Iceland Frozen Foods Ltd v Jones [1983] ICR 303 [50].

Gerard Dobbin v Citybus Limited [2008]NICA 42 which approves the decisions in British Home Stores and Iceland Frozen Foods.

26. The Tribunal also considered Harvey D1 Unfair Dismissal Part 7 [para 951 onwards].

27. The Tribunal find the remarks of Arnold J in British Homes Stores v Burchell in the context of a misconduct case of assistance:-

“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 …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 in fact more than one element is. 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.”

28. In Gerard Dobbin v Citybus Limited [2008] NICA 42, the Court of Appeal pointed out that when satisfied as to the employer’s beliefs and investigation, the tribunal must ask itself whether objectively the dismissal was “within the range of reasonable responses for this employer to have dismissed the employee. In some cases no range is necessary, for example, those in which the case for dismissal is obvious or those in which dismissal is clearly unreasonable. In the majority of cases there will be a range of reasonable responses”.

29. Following on from this case law the Tribunal find that following the investigation carried out by the respondent, the respondent formed the belief based upon genuine grounds that the complaints made against the claimant were well founded and in all the circumstances of this case the Tribunal also find that dismissal was within the range of reasonable responses for the respondent.

30. Notwithstanding this finding the Tribunal must consider the Statutory Dismissal and Disciplinary Procedures. Under Article 130A of the Order an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures have not been followed due to the employer’s failure.

31. The statutory procedures are contained in the Employment (Northern Ireland) Order 2003 ['the 2003 Order'], and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004. This legislation provides that an employer must follow a minimum procedure when disciplining or dismissing an employee.

32. If the employer fails to follow the statutory procedure, the Tribunal must make a finding of unfair dismissal and if an award of compensation is to be made comply with the provisions of Article 146(5) of the Order which provides for uplift in the amount of compensation awarded.

33. The standard disciplinary procedure applies in this case. Consequently there are three steps which must be followed together with certain general requirements set out at part III of the Regulations. The three steps can be summarized as follows:-

The first is that the employer must set out in writing the employee’s alleged conduct or characteristics which led him to contemplate dismissal or disciplinary action against the employee.

The second stage consists of a meeting between the employer and the employee, which must take place before any disciplinary action is taken (unless the employer considers it appropriate to suspend the employee). That meeting must not take place until the employer has informed the employee of the basis for the disciplinary action, the employee has had a reasonable opportunity to consider his response and the employee must take all reasonable steps to attend the meeting. After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

The third step relates to an appeal.

34. The Tribunal has been presented with no evidence to suggest that all the steps required in connection with the Statutory Procedures were followed. Although there was a meeting with Mr Candor on the afternoon of the

24 July, there is no evidence that the respondent set out in writing the claimant’s alleged conduct or characteristics which led him to contemplate dismissal or disciplinary action against the employee.

35. The Tribunal also find that the second stage of the procedures whilst not ignored was flawed. Although a meeting took place between Mr Candor and the claimant, the Tribunal have no evidence that the respondent had informed the claimant of the basis for the disciplinary action or that the employee had a reasonable opportunity to consider his response.

36. The Tribunal find that the third step of the procedure which relates to an appeal was properly carried out.

37. Article 130A (2) of the Order provides that, failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4) (a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

38. The Tribunal have considered and evaluated the evidence of the respondent and in particular the sworn testimony Mr Candor to the effect that following investigation, the complaints made against the claimant were considered to be well founded. The Tribunal accept Mr Candor’s evidence that a significant number of staff were distressed and frightened as a direct result of the claimant’s behaviour. The Tribunal also find that the respondent had made repeated efforts in the past to deal with the claimant’s offending behaviour by moving him from location to location within the creamery to no avail, The Tribunal accept that Mr Candor believed that he had done all he could to deal with the complaints and in these circumstances find that he genuinely believed that dismissal was the only option and that dismissal would have taken place even if the statutory procedures were properly followed.

39. For the reasons given above the claimant’s complaints are dismissed in their entirety.

Chairman:

Date and place of hearing: 6 July 2010 Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Johnston v Fivemiletown Creamery [2010] NIIT 07030_09IT (03 August 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/07030_09IT.html Cite as: [2010] NIIT 07030_09IT, [2010] NIIT 7030_9IT

Industrial Tribunals Northern Ireland Decisions