Zilinskas v O&S Doors Ltd [2012] NIIT 02805

THE INDUSTRIAL TRIBUNALS

CASE REF: 2805/11

CLAIMANT: Sigitas Zilinskas

RESPONDENT: O&S Doors Ltd

DECISION

The unanimous decision of the tribunal is as follows:

(1) The claimant’s claims for race discrimination and unpaid wages are dismissed.

(2) The claimant was unfairly dismissed and is awarded the sum of £14,275 in compensation.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Panel Members: Mr J Barbour

Mr J McAuley

Interpreter: Ms Diana Paukstaityte

Appearances:

The claimant appeared in person.

The respondent was represented by Mr S Elliott, Barrister-at-Law, instructed by Simmons Meglaughlin & Orr Solicitors.

The Claim

1. The claimant claimed that his dismissal was unfair and an act of race discrimination. He also claimed that he worked in excess of the 48-hour maximum limit per week stipulated in the Working Time Regulations and, as no opt-out agreement had been signed by him, the employer was in breach of those Regulations. He also claimed that he was not paid for all the hours that he worked and was therefore owed wages.

The Issues

2. The issues for the tribunal therefore were as follows:

(1) Whether the claimant was dismissed unfairly on 18 August 2011;

(2) whether that dismissal was an act of race discrimination when compared to the treatment of two Northern Ireland workers R and S;

(3) whether the claimant was owed money for unpaid wages;

(4) whether the tribunal had jurisdiction to hear any claim for breach of the Working Time Regulations by the employer in respect of the maximum hours permissible for an employee to work per week.

Sources of Evidence

3. The tribunal heard evidence from the claimant on his own behalf. For the respondent the tribunal heard from Mrs Heather Cartmill, and Mrs Jacqueline Ferguson both of whom were company accountants. The tribunal also considered the contents of the claim and response forms and the documentation to which it was referred.

The Law

Race Discrimination

4. Discrimination on racial grounds is covered by the Race Relations (NI) Order 1997 as amended (referred to below as RRO).

5. Direct discrimination is defined at Article 3(1)(a) of RRO. At Article 6(2)(c) it is stipulated to be unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to any other detriment. It is for the employee to prove facts from which the tribunal could conclude that the employer’s treatment was on grounds of the claimant’s race. The claimant must also show that the treatment was less favourable in the way that the employer treated or would have treated someone not of the claimant’s race whose circumstances were similar to the circumstances of the claimant.

Unfair Dismissal

6. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

7. The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303:

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of 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 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. 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”.

8. The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 outlines the task for the tribunal in a misconduct dismissal case. The test to be applied is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the employer’s act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances.

9. The case of Polkey v Dayton Services Limited 1987 3 ALL ER 974HL makes it clear that, if a dismissal is procedurally defective, then that dismissal is unfair but the tribunal has a discretion to reduce any compensatory award by any percentage up to 100% to reflect the chance that following the procedures correctly would have made no difference to the outcome.

10. On the Polkey issue, the question for the tribunal is whether there was a chance that the claimant would have been dismissed anyway even if a procedure had been followed correctly.

11. On the contributory conduct issue the tribunal must firstly, consider whether the claimant was guilty of blameworthy conduct that contributed to the employer's decision to dismiss; and, secondly, whether it is just and equitable to reduce the award by a percentage to reflect the extent of the contributory fault. The test is whether the claimant's behaviour was perverse, foolish or 'bloody-minded' or unreasonable in the circumstances.(Nelson v BBC (No2) 1979 IRLR 346 CA) If contributory fault is found both the compensatory and basic awards should be reduced by the same percentage.

Findings of Fact and Conclusions

12. The tribunal considered the testimony of the witnesses, the documents, the submissions and the principles applicable in this area and found the following facts and reached the following conclusions having applied the law to the facts found.

General

13. The claimant was employed as a production operative from 13 March 2009 until he was summarily dismissed for gross misconduct on 18 August 2011.

14. We found the claimant to be an inarticulate, confused communicator. We assessed carefully his demeanour and did not assess him to be an untruthful witness but, rather, he was a poor communicator even in his own language. He was a man who was evidently not adept at expressing himself and was unused to dealing with documents.

15. We were unhappy with the evidence given by the respondent’s witnesses in several respects. Particularly we were concerned that several key documents comprising handwritten notes of the disciplinary hearing, appeal hearing, grievance hearing and interviews with some witnesses were not produced until the outset of the hearing, and only when the chairman asked if any such notes existed. These documents were clearly relevant to the case and should have been sent to the claimant as part of the discovery process.

Unpaid wages claim

16. Whilst the claimant alleged that he was not paid for all the hours that he worked during his employment, he brought forward no evidence to dispute the documentation with which we were provided. We considered the clock-in records and payslips presented to us and are satisfied that the claimant was paid for the hours he worked. The claimant’s claim for unpaid wages is therefore dismissed.

Working Time claim

17. The respondent’s representative at the outset of the hearing accepted that the company were in breach of the Regulations as no written agreement had been signed by the claimant to work the excess hours. The tribunal does not have jurisdiction to hear a claim that an employer has breached the Working Time Regulations where an employee has not signed an opt-out agreement to work in excess of the 48 hours maximum per week stipulated in the Regulations. Any such breach of the Regulations is enforceable by the Health and Safety Authorities. The claimant’s claim in this regard is therefore dismissed as the tribunal has no power to award compensation for the admitted breach.

Race Discrimination

18. The claimant alleged that his dismissal amounted to an act of race discrimination as he was treated more harshly than two Northern Ireland workers who were involved in a previous incident.

19. The incident involving the claimant is set out in detail below but involved an altercation with another employee which was aggressive and threatening.

20. At hearing before the tribunal the claimant alleged that he had witnessed an aggressive incident between two Northern Ireland workers (R and S) which involved pushing, shoving and punches. The allegation was that those two workers where neither disciplined nor dismissed and that the claimant was therefore less favourably treated then them when he was dismissed for a similar incident.

21. We do not accept that the two workers R and S are valid comparators. We accept the evidence before us that, at that time, an investigation was carried out, the two workers involved denied that anything took place, and the witnesses did not support such an incident having taken place. Indeed the claimant was interviewed as a witness and his evidence did not support the allegation that an aggressive incident had taken place. He did not give the level of detail when he was interviewed that he gave to the tribunal to support his case.

22. In summary the incident involving R and S was investigated and found to be unsubstantiated and for that reason no disciplinary action was taken against either man. In contrast the claimant’s incident was investigated (albeit that it was flawed) and the witness evidence confirmed that something took place which led to disciplinary sanction.

23. The two situations are not comparable, R and S are therefore not valid comparators and thus the claimant cannot show less favourable treatment on grounds of race. His race discrimination claim is therefore dismissed.

Unfair dismissal claim

24. The incident which ultimately led to the claimant’s dismissal took place on 17 August 2011.

25. It was agreed between the parties that an altercation took place on that day between the claimant and his co-worker Mr Griskevicius. The incident took place on the production line at approximately 12 noon when the two men had an aggressive dispute about the way a particular piece of work had to be done. This led to both men being brought by Mr O’Donnell, the Managing Director to the office of Mrs Cartmill who had responsibility for HR.

26. Both men were Lithuanian nationals who did not speak English and had to communicate with Mrs Cartmill through an interpreter. Mrs Cartmill spoke to both men at the same time through the interpreter and asked what happened. We find it surprising that Mrs Cartmill dealt with them in this way. The panel’s experience is that, in such a case, it is good practice to separate the two workers to allow tempers to cool down so that they can be questioned separately.

27. Mrs Cartmill’s evidence was that she spoke briefly to Mr Griskevicius who was visibly shaken and very pale and she elicited from him that the claimant had confronted him, had threatened him and said that he would 'sort him out'. Her evidence was that Mr Griskevicius appeared to be too shaken to give a full account but he said that Ms GB had witnessed the incident.

28. When the matter was first brought to her attention Mrs Cartmill was not sure what level of misconduct she was dealing with as it was not possible for her to do a full investigation given the reaction of both men at the initial meeting. The claimant’s reaction essentially was that he kept saying that the other worker was not his boss and could not tell him what to do. Her evidence was that she was not able to speak to the claimant because he kept walking back and forth and was very agitated and was aggressive and angry and she stated in evidence to us that: “He could not give information in a reasonable manner as he was not thinking clearly”. The claimant denied that he acted in an aggressive and angry way but agreed he was agitated. We accept the claimant’s account of his behaviour that day as we found him to be a truthful witness having assessed his demeanour carefully throughout his evidence and having found the evidence of the respondent’s witnesses unsatisfactory in several key respects.

29. Based on her assessment of the demeanour of the two men, Mrs Cartmill decided to suspend the claimant on full pay. The claimant then left the premises whilst Mr Griskevicius remained. From that time the process moved with undue haste as Mrs Cartmill decided early on in the process that the claimant was the aggressor and Mr Griskevicius was the victim even though she had not, on her own account, elicited enough information about the incident.

30. Mrs Cartmill then spoke in more detail to Mr Griskevicius later that day and prepared a witness statement which was typed up and signed that day by him. The detailed allegation outlined in his statement was that the claimant had shouted at him, had taken a trolley from him and pushed it aggressively at him and stood aggressively as if he was about to fight. He also alleged that the claimant told him he was in trouble and threatened him that he would bring his friends to sort him out.

31. Mr Griskevicius said that Ms GB had witnessed the incident so Mrs Cartmill interviewed her that same day and had her statement typed up and signed that day. However, that statement gave an account of an incident which corresponded with the incident recounted by Mr Griskevicius (including the threatening words that the claimant would get his friends to sort him out) but stated that all of this happened to Mr ER. The statement made no reference to Mr Griskevicius at all.

32. Following the receipt of the two statements from Mr Griskevicius and Ms GB Mrs Cartmill drafted a letter to invite the claimant to a disciplinary hearing the following morning at 9.00 am. This letter was hand delivered on the evening of 17 August and stated that the meeting would give the claimant:

“... the chance to explain the circumstances surrounding the incident and the intimidation inflicted on a colleague. We advise you that any allegation of bullying in the workplace is looked upon seriously and will be treated in accordance with the disciplinary procedure as outlined in your contract of employment”.

33. The letter did not specifically state that the claimant was at risk of dismissal although it referred the claimant to the disciplinary procedure. The letter also refers to the Mr Griskevicius incident alone.

34. The other document, which the respondents only produced during the hearing at the request of the chairman, was a copy of the company disciplinary policy dealing with grounds for suspension and categorisation of offences and the disciplinary process. These were key documents and should have been sent to the claimant as part of the discovery process. Categories of misconduct are listed in the policy and it was the following paragraph which the respondent relied upon to support the finding of gross misconduct:

“Note:

Any allegation of bullying in the workplace … will be thoroughly investigated and where appropriate will be dealt with under the disciplinary procedure. The disciplinary response will depend upon the nature and seriousness of the incident and in extreme cases will result in summary dismissal.”

35. The claimant therefore arrived at the meeting on 18 August at 9.00 am with basic knowledge of the allegation that Mr Griskevicius had made against him when the two men were initially brought to see Mrs Cartmill. He did not have a copy of the more detailed statement from Mr Griskevicius nor the statement from the witness Ms GB and he had very little time to prepare himself for that meeting.

36. We have found it to be very significant in this case that the claimant’s ability to communicate was hampered by two matters. Firstly he did not speak English and had to communicate through an interpreter and secondly he was clearly not an articulate or sophisticated communicator even in his own language. This was apparent to us from the outset during the tribunal hearing where the interpreter had difficulty understanding the claimant in his own language. The claimant's difficulty with communication was also known to the respondent at the relevant time as, during the later appeal hearing, Mr O’Donnell alluded to his previous frustration at attempts to communicate with the claimant. This in our view put a greater burden on this employer to ensure the following: that the claimant knew the scope of the case against him; that he knew he was at risk of dismissal; that he had time to consider the detail of the allegations against him; and that he was given sight of any statements that were available so that he could consider them and formulate his response. These basic requirements were not complied with by the time the claimant attended the disciplinary hearing.

37. The disciplinary hearing took place on 18 August 2011. The statements were not translated for the claimant but rather Mrs Cartmill told him “the gist” of what they contained in that she told the claimant Mr Griskevicius' account of the incident and said that Ms GB witnessed it. However, this was not correct as Ms GB's statement did not in fact support Mr Griskevicius’ account. The claimant was asked what happened at the incident with Mr Griskevicius and he kept repeating: “Every man me do my job, every man do own job, I do my own job I do my job”. On Mrs Cartmill’s evidence the claimant was very agitated and walked back and forth waving his hands during this interview. The claimant accepted that he was agitated as he knew he was being blamed for something with Mr Griskevicius but he did not know why.

38. We were concerned that the respondent’s documents displayed an inconsistent approach during the whole disciplinary process and this tainted the respondent's witnesses' credibility. Mr Griskevicius and the witnesses were spoken to, their testimony was typed up, and they signed and dated their statements. In contrast none of the conversations with the claimant were typed up nor were they recorded and sent to him for him to agree or disagree their contents. Even accepting the respondent’s case that the claimant was agitated and incoherent, we would have expected them to have taken a consistent approach by typing up some record of the disciplinary hearing and sending it to the claimant for him to agree or disagree its contents. In particular we were concerned about the scanty notes of the appeal hearing and details of our concerns are set out below.

39. The disciplinary hearing on 18 August 2011 ended with Mrs Cartmill telling the claimant to return to another meeting at 4.00 pm that day when the decision on the disciplinary matter would be communicated to him.

40. Mrs Cartmill then decided to interview another witness as she told us that she realised that another worker would have witnessed the incident. Mr ER was spoken to on 18 August and his statement was typed up and signed by him that day. The statement from Mr ER confirmed that the claimant was shouting at Mr Griskevicius, seemed angry as if he was about to fight, grabbed a trolley of doors and pushed it across the hall. Mr ER stated that he could not hear any words spoken in the encounter. At no stage, therefore, did Mr ER allege that the threatening words described by Ms GB had been spoken to him or indeed to Mr Griskevicius. Mr ER then went on to say that when he smiled over at the claimant the claimant was aggressive to him and seemed to want to fight with him and Mr ER also stated that he had previously felt intimidated by the claimant.

41. The effect of this statement on Mrs Cartmill was that it tipped the balance for her as to whether or not the behaviour of the claimant amounted to gross misconduct. Mrs Cartmill took the decision to dismiss the claimant that afternoon, that is, just over 24 hours after the incident. No reason was given to us for such haste. Whilst the claimant was suspended it was on full pay so it was not to his advantage for the process to move with such speed. We infer from this that an early decision was taken that the claimant had to go.

42. The claimant did not turn up at the 4.00 pm meeting and the dismissal letter was typed up and hand delivered to him that night. The dismissal letter outlined that the claimant was dismissed for gross misconduct and stated as follows:

“… we find that the allegations of harassment and bullying of colleagues in the workplace to be correct. The verbal abuse which you subjected to your colleagues to on Wednesday morning is totally unacceptable, causing great distress to a number of employees. As such this is considered as gross misconduct giving us no alternative but to dismiss you with immediate effect.”

43. The dismissal letter makes clear that the dismissal was in relation to abuse and intimidation of more than one colleague and this refers to the statement from ER although the claimant did not know that ER had given a statement.

44. The key point for us is that the decision to dismiss was essentially taken because of the witness statement taken from ER. The decision to dismiss was taken before the claimant’s side of the story had been given, irrespective of the reason for that. The statement from ER was the 'tipping point' for Mrs Cartmill and it was therefore especially important for the claimant to have a chance to consider that and to give his version of events in response to the allegations raised by ER.

45. The decision to dismiss was taken before the claimant put his side of the case. The circumstances were that the respondents knew there was a communication problem because of language and because of the claimant’s level of sophistication and that put an extra burden on the respondent to make clear that the claimant had the full details of the allegations before him and a chance to consider them before the disciplinary hearing took place.

46. The claimant had worked for three years and it was common case that he worked very long hours and was content to start work earlier at 5.00 am at short notice if required. We have no evidence that there was any previous disciplinary record and the respondent’s own policy states that in a case of bullying in the workplace:

“The disciplinary response will depend upon the nature and seriousness of the incident; and in extreme cases will result in summary dismissal”. (emphasis added)

47. Our concern is that whilst the employer appears to have had sufficient evidence to show that an aggressive incident occurred where the claimant might be the person at fault, the evidence of extreme seriousness which led to a decision to dismiss rather than to impose a lesser penalty, came from the statement of ER which was not given to the claimant before the decision to dismiss was taken.

48. The claimant then wrote a letter to the Managing Director which was received on 23 August 2011 which makes the case that the incident related to a dispute about the way work was done, puts the blame on Mr Griskevicius for the pushing of the trolley, and referred to “ugly” words being used. No action was taken by the respondent as a result of the letter received from the claimant giving some detail of his side of the story. The witness statements which had been gathered were not sent to the claimant before the appeal hearing despite the fact that the appeal was listed for 29 August 2011 which was 11 days after the dismissal letter was sent.

49. Mrs Ferguson and Mr O’Donnell were at the appeal hearing on 29 August 2011. We find the appeal hearing to have been inappropriately short and conclude that the appeal was, essentially, a rubber stamp of the initial decision to dismiss. No further investigation was carried out despite the claimant’s letter outlining (albeit in a very sparse way) his version of events.

50. We were told by Mrs Ferguson that the meeting lasted approximately 30 minutes. We do not accept that the meeting was as long as that. The scanty notes of the meeting (produced to the claimant for the first time during the tribunal hearing) record that it began at 10.45 and ended at 11.00 am. In that time Mrs Ferguson told us the three written statements were translated for the claimant by the interpreter, the claimant was pressed for his account of what took place, Mrs Ferguson’s notes were read over and interpreted by the interpreter and the claimant was asked to sign them. We simply do not believe that all of that took place in a 15 minute meeting particularly as we have observed the difficulties the claimant has in articulating himself in his own language and because of the fact that the use of an interpreter delays communication. We therefore accept the claimant’s case that very little was said at the meeting and he was told to sign a document whose contents he was not aware of. The claimant was consistent that at the appeal he did not speak much but that he said that he was innocent.

51. The claimant in his evidence to us was consistent that he knew that he was being blamed for the incident with Mr Griskevicius but he did not know what for. He insisted that the matter did not take place the way it was described as Mr Griskevicius was the aggressor.

52. In particular we do not accept Mrs Ferguson’s evidence that she asked the claimant at the appeal hearing if he agreed with the account given by Mr Griskevicius in his statement. This would have been an important admission and yet it is not recorded in the note of the meeting. We do not accept that the statement was read over in full to the claimant nor do we accept that he agreed with Mr Griskevicius’ account. The height of the admission by the claimant was that he agreed that he was “aggressive” in the incident. This admission could have been consistent with the claimant’s story which was that an incident took place, was not his fault and he was not the initial aggressor as set out in his letter of 23 August.

53. The claimant gave conflicting evidence about whether or not he had signed the record of the appeal hearing. He appeared reluctantly to accept that this signature did appear on that document. We do not find from this that the claimant was an untruthful man. He appeared to us to be stressed, confused and a poor communicator even in his own language. The debate about the signature involved the claimant saying that he signed a typed-up document. No typed-up document was produced during the hearing. We do not find the quibble raised by the claimant about his signature taints all his evidence. We do not find him to be an untrustworthy witness lacking credibility particularly when we had serious misgivings about the production of key documents by the respondent and about the fact that the respondent had some documents typed up but others were in a very scrappy handwritten form.

54. The respondent complied with the basic three step procedure required by the SDP.

55. The following amounted to flaws in the procedure despite the fact that the statutory dismissal procedure was complied with:

(1) By suspending the claimant Mrs Cartmill very quickly decided that he was at fault despite the fact that he did not give his side of the story for whatever reason. She treated the two men differently even though she had not gathered any evidence about the incident . In our view normal good practice would have been to suspend both men or neither of them. In addition, the failure to question each man separately meant that the claimant was not given an opportunity to cool down so that he could give a coherent answer.

(2) The step 1 letter did not set out clearly that the claimant was at risk of dismissal. Although reference to the disciplinary policy was just enough to comply with the basic SDP, the lack of clear warning that dismissal was a possibility was a flaw in this case where the claimant had little English and had other communication problems which were known to the respondent.

(3) The process moved too quickly especially in view of the claimant's communication problems as the claimant had no time to explore the disciplinary policy and have it translated for him (if he had been minded to do so) as the letter of invitation to the disciplinary hearing was hand-delivered in the evening before the 9.00 am meeting the next day.

(4) At the disciplinary hearing the written statements had not been given to the claimant in advance nor were they gone through verbatim but rather Mrs Cartmill just gave the gist of the two statements. This meant that the claimant had no opportunity to explore and point out any peculiarities in the statements such as that the eye-witness identified by Mr Griskevicius did not actually say that she witnessed that incident . That alleged eye-witness gave details of an incident which tallied with the Mr Griskevicius incident but named Mr ER as the victim. She ascribed the crucial threatening words to the claimant and said that they were directed at Mr ER. Mr ER’s statement the next day did not recount an incident as Ms GB described it and omitted to mention the threatening words. It was these threatening words alleged to have been uttered by the claimant which were so important to the respondent. Mr ER’s statement did not hear any words spoken by the claimant to Mr Griskevicius.

(5) The third statement, which was the most important in relation to the decision to dismiss, was taken after the disciplinary hearing and was never given to the claimant. For the respondent, the added element brought in by the Mr ER statement was that a second employee was intimidated in the incident and that there had previously been intimidating incidents involving the claimant. ER did not hear the crucial words ascribed to the claimant namely that he would get friends to sort out Mr Griskevicius.

(6) The decision to dismiss was taken too hastily especially when, at that stage, it was expected that the claimant would appear at a 4.00 pm meeting which could have been used to put the new evidence to him. The fact that it transpired that the claimant did not turn up at the 4.00 pm meeting does not change the hastiness of the decision to dismiss as at that stage Mrs Cartmill did not know that he was not going to appear.

(7) The dismissal letter referred to intimidation of colleagues which confirms that it was the fact that more than one person was allegedly intimidated which made the matter more serious for the respondent. The claimant was still not aware that this referred to a statement from Mr ER.

(7) The claimant’s letter of 23 August setting out his account was not acted upon by the respondent even though there was time before the appeal hearing to do so.

(8) The written statements were not sent to the claimant in advance of the appeal for him to consider them in detail. He was thus denied again the chance to highlight the apparent inconsistencies.

(9) Mrs Ferguson confirmed that she had the claimant’s letter of 23 August before her and the fact that no action was taken on it is a flaw. The appeal stage could have involved re-calling the witnesses to deal with the claimant’s point that Mr Griskevicius was the aggressor.

(10) The appeal hearing was so short that we do not accept that it covered the matters indicated by Mrs Ferguson. We find that it was therefore a 'rubber stamp' of the flawed decision to dismiss. It did not constitute a proper review and did not cure the defects in the earlier procedure.

56. In summary the claimant did not know the extent of the allegations against him when the decision to dismiss was taken. The initial process was so speedy that it did not give him sufficient time to consider the information and the appeal process was inadequate and did not 'cure' the defects of the disciplinary stage.

57. We are fully aware that it is not for us to step into the shoes of the respondent and to make a fresh decision nor is it for us to re-run the misconduct investigation. The test we apply is whether or not the actions of the employer fell within the band of reasonable responses for reasonable employer and whether the investigation carried out was reasonable in the circumstances.

58. For the reasons outlined above we find that the decision to dismiss fell outside the band of reasonable responses for a reasonable employer in the circumstances. The decision was reached following a flawed investigation and was based on evidence which had not been put to the claimant. He therefore did not have a proper chance to put his side of the case before the decision was taken. The decision could have been put off until he could have been given a further chance to explain himself at the 4.00 pm meeting. The appeal did not cure the defects of the disciplinary stage because no further investigation was carried out and the opportunity was not taken to give the claimant the statements in advance so that he would have a chance to prepare his response.

Contributory Conduct

59. We find that the claimant was not guilty of contributory conduct in this case for the following reasons:

(1) Whilst he agreed that there was an altercation and admitted that he was aggressive, his consistent story to us was that he was the victim in the encounter.

(2) The claimant at no stage had sight of the statements nor were they read to him and he had no opportunity to deal with the statement from Mr ER which was so important to the respondent's decision to dismiss.

Polkey

60. We must assess the chance that the claimant would have been dismissed anyway even if the procedures has been fairly and properly followed. It is our view that if the procedures has been followed properly the claimant would have had a chance to put his side of the case fully and might have been able to persuade the respondents either, to find him to have been the victim or, to impose a lesser penalty rather than dismissal.

61. If the claimant had known that he was at risk of dismissal before the meeting on the 18 August, and if he had been given copies of the statement and reasonable notice of the disciplinary hearing, he could have prepared better and could have given the additional detail that he gave to us in tribunal. He told us that he was doing the job according to instructions from his manager and felt he should continue to do this rather than let a less experienced worker do another job. At the tribunal there was no evidence brought forward to challenge the claimant on the veracity of this account.

62. When the claimant was cross-examined at tribunal on this point he stuck to his story which appeared to be consistent with the undetailed points he tried to make throughout the respondent's internal processes. The claimant's point was not clear without the additional detail supplied to us. The claimant did not get a chance to put this detail nor did the respondent on appeal take the opportunity to check out his story with his manager. If they had done so there is a chance they might have concluded, at the very least, that a lesser penalty was warranted. The respondent would also have had time to reflect properly on whether the “extreme circumstances” required for summary dismissal were present. The respondent could also have reflected (which Mrs Cartmill appears not to have done due to the hastiness of the decision) on the claimant 's clear record and the fact that he was extremely hard working in deciding whether dismissal was appropriate.

63. On the other hand, the respondents could still reasonably have believed the statements taken from the three witnesses if they had put the claimant's points to them and obtained clarification from them.

64. Taking account of the factors above, we assess the chance that following proper procedures would have made a difference at 50% and compensation will be reduced by 50% accordingly.

Compensation

65. Dates of employment 13 March 2009 to 18 August 2011.

EDT 18 August 2011

Weekly pay gross £356.33

Net £287.85

66. Basic Award

3 years x 1½ weeks x £356.33 gross maximum weekly pay = £1,603.00

67. Compensatory Award

(i) Loss of statutory industrial rights = £300.00

(ii) Loss of earnings from EDT 18 August 2011 to 21 June 2012:

44 weeks x £287.85 net weekly pay = £12,665.00

(iii) Future Loss

We accept that the claimant has tried to mitigate his loss by trying to find another job. The claimant was clearly an extremely hard worker given the long hours that he worked on a regular basis and we accept that the claimant has tried consistently to obtain other work to support his family. Despite this, the claimant has been unable to obtain another job in the eight months since his dismissal. The claimant is an unskilled worker with little English and the current economic climate is difficult for all job-seekers. Taking account of these factors we assess that it will take approximately 10 months for the claimant to obtain another job at the same level of pay as that with the respondent. Future loss is therefore calculated as follows:

43 weeks x £287.85 = £12,378.00

Summary compensatory award:

loss statutory industrial rights: £300.00

loss of wage: £12,665.00

future loss: £12,378.00

Total Compensatory Award: £25,343.00

Deduct Polkey 50% : £12,671.50

Net compensatory award: £12,672.00 (rounded)

Summary of Compensation

68. Basic Award £1,603.00

Net Compensatory Award £12,672.00

Total Compensation £14,275.00

_________

Statement for Recoupment of Benefits

69. Loss of earnings from EDT to date of decision (21 June 2012) £12,665.00

Less 50% Polkey deduction £6,332.50

Prescribed element £6,332.50

70. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 30 April, 1 May and 3 May 2012, 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 >> Zilinskas v O&S Doors Ltd [2012] NIIT 02805_11IT (25 June 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/2805_11IT.html Cite as: [2012] NIIT 02805_11IT, [2012] NIIT 2805_11IT

Industrial Tribunals Northern Ireland Decisions