Rainey v F G Wilson (Engineering) Ltd [2010] NIIT 467

THE INDUSTRIAL TRIBUNALS

CASE REF: 467/10

CLAIMANT: Aidan Rainey

RESPONDENT: F G Wilson (Engineering) Ltd

DECISION

The unanimous decision of the tribunal is that there was no plot to have the claimant dismissed from his employment, that he was not automatically dismissed and that he was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Mr W A Palmer

Members: Mr J Hughes

Mr A MacLaughlin

Appearances:

Ms Nicola Rowntree, Barrister-at Law, appeared for the claimant instructed by Messrs E J Lavery & Co, Solicitors.

Ms Lorraine Toolan of the EEF appeared for the respondent.

The Issues

1. The issues considered and decided by us are:

(1) Whether there was a plot, as alleged by the claimant, to have him dismissed.

(2) Whether the claimant was automatically unfairly dismissed; and

(3) Whether the claimant was subjected to ordinary unfair dismissal.

Documents

2. We were provided with a file of documents, which was supplemented during the course of the hearing. We informed the parties that we would have regard only to those documents referred to during the hearing.

Submissions

3. Submissions were made by the parties and we have taken these into account in coming to our conclusions.

Witnesses

4. We heard evidence, on behalf of the respondent, from Mr William Barry Heasley, a Section Manager who was in charge of Bay F, where the claimant was employed, Mr Gareth William Donaghy, who is a Group Manager with responsibility for Bay F and who is Mr Heasley’s manager and Mr Paul Beck who is Operations Manager for the respondent’s standards. The claimant gave evidence on his own behalf.

The Law

Automatic Unfair Dismissal

5. (1) In short, automatic unfair dismissal arises where the statutory dismissal and disciplinary procedures, contained in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 (the Order of 2003), have not been completed and fault for
non-completion lies wholly or mainly with the employer. This is provided for in Article 130 A (1) of the Employment Rights (Northern Ireland) Order 1996 (the Order of 1996) which states;

“An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if-

(a) one of the procedures set out in Part 1 of Schedule 1 to the [Order of 2003] (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

(2) Regulation 3 (1) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, insofar as relevant, provides as follows:

“….., the standard dismissal and disciplinary procedure applies where an employer contemplates dismissing or taking relevant disciplinary action against an employee.”

(3) The “standard dismissal and disciplinary procedure” is that contained in Chapter 1 of Schedule 1 to the Order of 2003, where it is provided as follows:

STANDARD PROCEDURE

Step 1: statement of grounds for action and invitation to meeting.

1.- (1) the employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2.- (1) The meeting must take place before action is taken, except where the disciplinary action consists of suspension.

(2) The meeting must not take place unless-

(a) the employer has informed the employee what the basis was for including in the statement under paragraph (1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) 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.

Step 3: appeal

3.- (1) If the employee does not wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) the employee must take all reasonable steps to attend the meeting.

(4) the appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) after the appeal meeting, the employer must inform the employee of his final decision.”

Ordinary Unfair Dismissal.

6. (1) Article 130 paragraph (1) of the Order of 1996, insofar as relevant for the purposes of this decision, 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 principle reason) for the dismissal, and

(b) that it is a reason falling within paragraph 2…..

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

(a) ……….

(b) relates to the conduct of the employee”

(2) The reason put forward for the claimant’s dismissal was conduct, which is a potentially fair reason for dismissal. It is for the respondent to show the reason for dismissal. If it does so, we then consider the neutral provisions contained in Article 130 paragraph (4) of the 1996 Order, which are set out immediately below.

“(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal was 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 merit of the case.”

(3) Of the above statutory provisions, the Lord Chief Justice stated at paragraph [15] of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 that they:

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

(4) The onus is, therefore, upon the respondent to satisfy us of the reason for dismissing the claimant and that the reason relates to the claimant’s conduct. With regard to the ‘reasonableness’ aspect, namely, the application of Article 130 (4) of the Order of 1996, we remind ourselves that this provision is drafted in neutral terms, and, therefore, no burden is placed on either party (see Boys and Girls Welfare Society v McDonald [1996] IRLR 129). We also remind ourselves that we must not enter the “forbidden territory” of making our own determination of the evidence before the disciplinary authority. In Rogan the Lord Chief Justice stated, at paragraph 26:

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

(5) Also, with regard to approach in relation to Article 130 (4) of the Order of 1996, the Lord Chief Justice further stated earlier in Rogan, at paragraph [16]:

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

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

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

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

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

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

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

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

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

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

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

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

(6) At paragraph [21] of Rogan the Lord Chief Justice summed up Arnold J’s remarks in British Home Stores and reminded tribunals that we must also consider whether the conduct was sufficient to warrant dismissal. He stated:

“The test for whether the dismissal was fair or unfair is set out in Article 130 of the [Order of 1996] but in misconduct cases it is generally helpful to follow the remarks of Arnold J in British Home Stores. It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in the circumstances. The tribunal must also, of course, consider whether the misconduct was a sufficient reason for dismissing the employee.”

(7) There is a reminder in the above passage that, where the penalty imposed is dismissal, we consider the fairness of that penalty under the provisions of Article 130(4) of the Order of 1996. Our approach to that task is reasonableness. The judgement that we have to make is not whether we would have, had we been the employer, imposed the sanction of dismissal; what we might or would have done is irrelevant to the exercise which we must undertake. What we have to judge is whether, in the circumstances, the sanction of dismissal was within or outside the bounds of reasonableness, in the sense referred to in the authorities referred to below.

(8) In Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251, Phillips J stated, at paragraph 24:

“It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may well be cases where reasonable managements might take either of two decisions: to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss they have acted unfairly because there are plenty of situations in which more than one view is possible.”

(9) In British Leyland v Swift [1989] IRLR 91 (a decision of the Court of Appeal (England and Wales) and which is referred to in Iceland Frozen Foods, one of the cases mentioned in Rogan), the Master of the Rolls put the matter this way, at paragraph 11:

“The first question that arises is whether the Industrial Tribunal applied the wrong test. We have had considerable argument about it. They said: '... a reasonable employer would, in our opinion, have considered that a lesser penalty was appropriate'. I do not think that that is the right test. The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.”

(10) In considering this aspect, we have also taken account of Browne-Wilkinson J’s guidelines in Iceland Frozen Foods.

Findings of Fact

7. The claimant, who was born on 5 April 1982, commenced employment with the respondent, which is engaged in the design and manufacture of generators, on 22 September 2003, and was dismissed on 7 December 2009. He was employed at the Old Glenarm Road site at Larne. The claimant served a four year engineering apprenticeship with the respondent and on completion of his apprenticeship was engaged as a Mechanical Fitter. During his apprenticeship the claimant twice achieved the award of Apprentice of the Year, an achievement, we believe, that was unprecedented. Clearly, the claimant exhibited a talent in engineering. The claimant was a good worker until a change occurred in his attitude to work. Until then, he could, according to Mr Donaghy, do the work of two people. The change in attitude occurred approximately 18 months before the events referred to in these proceedings took place. During his employment, the claimant received training in health and safety matters.

8. In March 2009, the claimant was disciplined for failure to carry out a reasonable order. He received a final warning, which was extant at times relevant to these proceedings.

9. The claimant was employed in Bay F of the respondent’s establishment at Old Glenarm Road, which deals with bespoke orders for generators and their containers. There are a number of teams in Bay F, each led by a team leader. Mr Norman Clements was the claimant’s team leader. The claimant’s responsibilities were, for example, fitting the alternators and engines into generators.

10. In late 2009, Mr Heasley was approached by an employee, Mr William McKeen, a Mechanical Fitter who worked in the same team as the claimant under Mr Clements. Mr McKeen asked for a private meeting. At this meeting Mr McKeen said that he was reluctant to complain about the claimant, but that he could “take no more”. Mr McKeen said that someone would be killed or badly injured if certain conduct by the claimant did not cease. In relation to this, Mr McKeen was referring to some of the incidents set out immediately below, namely, throwing the steel bolt, interfering with the band saw and the skid plate and vice incidents.

11. Mr McKeen alleged that the claimant had thrown a steel bolt which hit another employee on his safety glasses, tampered with a band saw whilst it was being operated by another employee, used foul language to him (Mr McKeen) and also to another employee (an electrician), deliberately damaged a bracket in a generator container, jumped on a skid plate (Mr McKeen’s hands were underneath the plate and had he not removed his hands in time they could have been crushed) and deliberately tightly closing a vice, with the aid of a pipe as a lever. As a result of the tightening of the vice there was a danger of the vice jaws fracturing, when subsequently used. All these matters had allegedly occurred four to six weeks previously, with the exception of the incident concerning the electrician, which occurred on the day Mr McKeen approached Mr Heasley.

12. Mr McKeen told Mr Heasley that he was reluctant to come forward as he could be ostracized by fellow employees and that he did not want to be named as the person making the allegations. He said that he was frightened of the reaction of his colleagues as there had been occasions when other employees had raised complaints and had been ostracized. Mr McKeen said that the only reason he had come forward was that there was potential for someone to be injured or killed and he could not have that on his conscience. Mr Donaghy spoke briefly to Mr McKeen, who repeated that he was reluctant to become involved.

13. Mr Donaghy advised Mr McKeen that the allegations made were serious ones and for them to be dealt with appropriately the respondent expected him to co-operate. There was a general reluctance on staff to report incidents, lest they be ostracized. This was despite a direction brought to the attention of staff to “Report all injuries, dangerous occurrences, near misses and co-operate fully with any internal investigations”.

14. Mr Heasley spoke to Mr Donaghy and as a result Mr Heasley went to the Human Resources Department, where he spoke to Ms Aimee McRandal. She advised that the allegations should be recorded immediately. Mr Heasley and Ms McRandal met with Mr McKeen on 24 November 2009, when a formal note was taken of Mr McKeen’s allegations.

15. Later, on 24 November 2009, Ms McRandal and Mr Heasley met with the claimant. Also present was Mr Steven Allen, a team leader. It was thought that the presence of someone from the shop floor would be beneficial, in the sense that Mr Allen’s presence would be helpful to the claimant.

16. The allegations made by Mr McKeen were outlined to the claimant and he was given the opportunity to comment. He admitted that he had stood on and damaged the bracket. He said that he had straightened it out again and could give no reason why he did what he did. The claimant’s action could have damaged the quality of the product. The claimant also admitted that he had used foul language to the electrician. He denied the other allegations.

17. Later on 24 November 2009, Mr Donaghy suspended the claimant on full pay pending further investigation of the allegations.

18. Mr Heasley carried out these further investigations. He and Ms McRandal interviewed Mr Robert Allen, who was operating the saw at the time when it was alleged that the claimant interfered with its stop/start mechanism, Mr Clements and Mr Raymond Ferguson (about the bracket), Mr Steven Allen (generally about the claimant and about the incident concerning the bolt), Mr Kennedy (about the bolt incident) and Mr McKeen (about the skid plate).

19. When the investigation was completed the statements, which contained some new allegations, were handed over to Mr Donaghy and Ms Withers. Ms Withers was employed in the respondent’s Human Resources Department. Mr Donaghy and Ms Withers reviewed the statements and determined that, with regard to some matters contained in the statements, no further action would be taken and that others warranted disciplinary proceedings.

20. There are two categories of disciplinary offence referred to in the respondent’s Disciplinary Policy and Procedure (the DPP), namely, general misconduct and serious misconduct. Serious misconduct, which, it is stated, renders an employee liable to summary dismissal, is the more serious of the two and corresponds to what is generally referred to as ‘gross misconduct’. Examples of serious misconduct are listed in the DPP (the list is neither exhaustive nor exclusive) and includes, “any action likely to endanger the health and safety of the employee or any other person”, “Fighting, verbal abuse, assault or threatening or bullying behaviour”, and “Horseplay/practicable jokes.” We are satisfied that the claimant was provided with the DPP. Another document, which the claimant was aware of, was one with the title “Unsafe Behaviour”. In this document, under the heading “Serious Misconduct”, the following example is given, “Deliberately endangering your own or another’s safety”.

21. On 4 December 2009, Ms Withers wrote to the claimant inviting him to attend a disciplinary hearing to be held on 7 December 2009. The letter informed the claimant that the allegations made against him, if believed, would amount to serious misconduct and that the hearing “may result in summary dismissal” and also reminded him of his right to be accompanied. The letter set out the allegations as follows (we have added the numbers):

“Health & Safety/horseplay

1. In that it is alleged that approximately 6/8 weeks ago you jumped on skid plates whilst a fellow employee was using them, necessitating the employee to quickly remove his hands to avoid injury.

2. In that it is alleged that at approximately 6 weeks ago you interfered with a mechanised band saw whilst a fellow employee was operating it.

3. In that it is alleged that approximately 2/3 weeks ago you threw a bolt at a fellow employee, hitting his safety glasses.

4. In that it is alleged you were misusing tooling by forcing a vice as tight as possible whilst attempting to add additional pressure with a piece of piping.

Vandalising of Company Property

5. In that it is alleged you purposely jumped on a welded bracket inside a container until it bent flat, damaging it.

Code of Conduct/ Values in Action

6. It is alleged you engaged in behaviour contrary to The Caterpillar Worldwide Code of Conduct, and Values in Action, by using foul (sic)/abusive behaviour to a fellow employee (Electrician) on 24 November 2009.

7. In that it is alleged you engaged in behaviour contrary to The Caterpillar Worldwide code of Conduct, and Values in Action, by using foul (sic)/abusive behaviour towards a fellow employee approximately 4 weeks ago following discussions regarding safety shoes.”

22. With regard to charges 6 and 7, the language, which was the subject matter of these charges, was not what could be termed “industrial language”, but was language used in a threatening manner.

23. Prior to the disciplinary hearing, the claimant was provided with sufficient information for him to understand the substance, and the context, of the allegations made against him and to put forward his defence.

24. At the disciplinary hearing, which was conducted by Mr Donaghy and Ms Withers, the claimant was accompanied by a trade union representative, Mr James Carson. Taking the allegations in the order as set out above, the claimant denied the skid plate incident, the band saw incident, the bolt incident and the vice incident (allegations numbered 1, 2, 3 and 4). He admitted to the vandalism incident and the incident of foul/abusive language to the electrician (allegations numbered 5 and 6). He denied the other alleged incident of foul/abusive behaviour (allegation numbered 7). The panel concluded that the claimant had committed all the offences and that he be dismissed

25. The claimant exercised his right of appeal. He did so by way of letter, dated 9 December 2009, in which he set out the grounds of appeal. The appeal was heard by Mr Beck and Ms Clare Doran (Human Resources Operations Manager) on 16 December 2009. The claimant was accompanied by Mr Eddie Frame. At this hearing the claimant raised an issue of friction between him and Mr McKeen and said that Mr McKeen would wind him up. He said that he had used the language referred to in the charge numbered 7 because Mr McKeen was winding him up about safety shoes.

26. The panel of Mr Beck and Ms Doran gave the claimant the opportunity to put his appeal and, like the disciplinary panel, went about the business in a proper manner. Their joint decision was to refuse the appeal.

Decisions on the Issues (set out at paragraph numbered 1 above)

Issue at 1 (1)

27. In his claim form the claimant stated, with regard to the allegations that he faced, that he believed that some employees, including Mr McKeen and Mr Heasley, gathered the information on him in order to damage his prospects, create a false image of him and ultimately to have him dismissed. The claimant told us, in evidence, that Mr Heasley and Mr McKeen were “ganging up on [him] to get as many bad points against [him] as they could to get [him] dismissed” In other words, there was a plot to have the him dismissed. Mr Heasley, in his evidence, denied that there was such a plot. We accept Mr Heasley’s denial. It appears to us that the investigation, in which Mr Heasley took part, was an honest one and that its purpose was purely investigative.

Issue at 1 (2)

28. With regard to the claim of automatic unfair dismissal, we find that the respondent followed the relevant procedures and, therefore, this claim is not well-founded.

Issue at 1 (3)

29. One complaint made to us by the claimant was that, in the disciplinary process (the process) he was not believed. We consider that it is clear, from the authorities set out earlier, that it is not within our power to retry issues decided during the process. The authorities to which we have referred hold that our function is a limited one.

30. We find that the claimant’s claim, in respect of ordinary unfair dismissal is not well-founded. We are satisfied that the claimant’s dismissal was because of conduct. There were no underlying reasons for the dismissal. We are also satisfied that there were dangers involved in the jumping on the skid plate (Mr McKeen could have been injured), in interfering with the band saw (it could have splintered and caused injury), in throwing the bolt, albeit a small one, where persons were working and machinery working (including, at times, a crane) and in interfering with the vice, which could have fractured and later caused injury. Further, we are satisfied that:

31. (1) The respondent reasonably believed that the claimant had committed the acts complained of:

(2) A reasonable investigation was carried out;

(3) The disciplinary panel went about their task in a fair way and considered all relevant matters;

(4) The disciplinary panel came to reasonable conclusions with regard to the finding of guilt and with regard to the penalty imposed;

(5) The appeal panel gave the claimant a fair opportunity to put his appeal; and

(6) The appeal panel reasonably concluded that the findings of the disciplinary panel (including penalty) should stand.

Chairman:

Date and place of hearing: 10, 11 and 12 August 2010 and
2 September 2010, at Belfast.

Date decision recorded in register and issued to parties:

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Industrial Tribunals Northern Ireland Decisions