McErlain v Regency Carpet Manufacturing L... [2012] NIIT 00075

THE INDUSTRIAL TRIBUNALS

CASE REF: 75/12

CLAIMANT: James McErlain

RESPONDENT: Regency Carpet Manufacturing Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the respondent pay the claimant the sum of £45,792.59.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mr S Pyper

Mr J Pollock

Appearances:

The claimant was present and was represented by Mr G Daly, Advocate Solicitor, Francis Hanna and Co Solicitors.

The respondent was represented by Ms Karen Moore of the Employers Engineering Federation.

THE CLAIM AND THE RESPONSE

1. The claimant lodged a claim form on 23 December 2011 claiming unfair dismissal.

2. The respondent presented a response on 8 February 2012. They accepted that they had dismissed the claimant but denied they had dismissed him unfairly as alleged or at all.

SOURCES OF EVIDENCE

3. Documents

The Tribunal was given two hearing bundles of substantial size.

4. Witnesses

On behalf of the claimant;

The Tribunal heard from the claimant.

On behalf of the respondent;

The Tribunal heard from Mr Keith Megson, the respondent’s Health and Safety
Co-ordinator, and Steven Large, Engineering and Production Manager.

SUBMISSIONS

5. The Tribunal was grateful to receive written submissions from both representatives.

OVERVIEW

6. The claimant was employed by the respondent in 1995. He is an experienced tufting machine fixer. His employment ended in July 2011 when he was dismissed for alleged gross misconduct. This misconduct was described by the respondent as “negligence resulting in loss of resource”.

7. The claimant contended that the events leading up to his dismissal began with a difficulty in the operation of machine no 16, when he had had a disagreement with the engineer. The claimant contended that the respondent thereafter “trawled back” to see if there were other occasions where difficulties with machinery he had worked on had created downtime.

8. Difficulties in respect of machines 13 and 18 were discovered and in relation to these machines a formal investigatory process was commenced and the claimant received a written warning.

9. Shortly after that the claimant was subjected to a further investigation in relation to machine 16 and that investigatory and disciplinary process led to his dismissal.

10. The claimant contended that the respondent dealt with the two disciplinary processes in this way so that the end result would lead to his dismissal.

11. The claimant also contended that there had been changes made in what personnel handles disciplinary processes and appeals and that these had been set up to ensure that Mr Large would hear the claimant’s appeal and that the claimant would be dismissed.

12. The respondent disputed this version of events. They contended that by the time the difficulties in relation to machine 16 were reported, the investigations into machines 13 and 18 were underway.

13. The respondent also contended that this was the reason for the two separate investigation processes as they were of the view that as the investigations had started separately it was appropriate to keep them separate.

14. The respondent also stated that they had kept the issues separate so that they could not be accused of “racking up” the incidents by dealing with them all in the one disciplinary process.

15. The respondent disputed that the changes to the disciplinary personnel was routine and not crafted deliberately to put the claimant at a disadvantage.

FINDINGS OF FACTS

16. The Tribunal considered all the evidence before it and reached the following findings of fact either as agreed or proved on a balance of probabilities:

17. On 21 June 2011 the claimant experienced difficulties whilst working on machine 16. He spoke to a Mr Wackett about the problem which was deemed to be serious and necessitated a long period of machine “downtime”.

18. The following day the claimant received a letter from the respondent advising him that they were conducting an investigation into his work in relation to two other machines, 13 and 18, for faults which had occurred on the 9 and 14 June 2011 respectively. The claimant stated that he was shocked at this letter, as this was the first time he had been made aware of any investigation into his work on machines 13 and 18.

19. Mr Stephen Large, the respondent’s Engineering and Production Manager, stated that on 15 June 2011 he had become aware of faults on machines 13 and 18 and he had requested Mr Colin Bell to carry out an investigation into the claimant’s work on these machines, 13 and 18.

20. When the difficulties in relation to machine 16 were brought to his attention on 21 June 2011 Mr Large realised that the difficulties were significant enough to warrant another investigation.

21. At this point Mr Large sought out Mr Bell and asked him for an update in relation to the investigation into machines 13 and 18. Mr Large stated that he had been displeased with Mr Bell to discover that there had been no progress with this investigation and told him to get on with it. At the same time Mr Large also directed Mr Bell to investigate the difficulties at machine 16 too.

22. Mr Large accepted that he had been the person who had instigated both investigations and had appointed Mr Bell in both. He stated that the choice had been between himself and Mr David Spencer as they were both able to commission investigations.

23. In July 2011 Mr Spencer sent a memo to Mr Large, Mr Bell, Mr Parry and Mr Megson advising that from hence Mr Large would conduct appeals and the others would conduct investigations and the disciplinary process.

24. This created the situation whereby Mr Large, who had instigated both investigations, heard both the claimant’s appeals in both disciplinary processes.

25. It was accepted by Mr Large that the respondents’ firm employed 150 people and that they had no designated Human Resource department. Mr Large was unable to recall his most recent training on disciplinary procedures.

The Investigatory Meeting into machines 13 and 18

26. The investigatory meeting in relation to machines 13 and 18 was conducted on 22 June 2011. It was chaired by Mr Bell. Mr Keith Parry was in attendance. Mr McErlain attended and was represented by his union representative, Mr Crothers.

27. This investigation established that in relation to machine 13 the claimant had tried to correct its faults and that it had taken him 90 minutes to complete. In relation to machine 18, the claimant stated that he had been requested to do a “spec” change on the machine on 13 June 2011. He had started work on machine 18 that day and continued to work on it on 14 June 2011.

28. The investigation concluded that the claimant had taken some time to complete the spec change on machine 18 and that he had not sought help to fix it sooner than he did. It was also noted that there was no worksheet completed by either the operator or the fixer (the claimant) for the spec change commencing on 13 June 2011.

29. Following this investigation, Mr Stephen Large wrote to the claimant on 27 June 2011 and invited him to attend a Disciplinary Hearing on 28 June 2011 in relation to an allegation of negligence resulting in an unacceptable loss of resource whilst working at machines 13 and 18 on 9 June and 13/14 June 2011.

30. The letter advised the claimant that the purpose of the Disciplinary Hearing was to give the claimant the opportunity to answer the allegation fully and after consideration the respondent would apply a disciplinary sanction if it deemed appropriate to do so. The claimant was advised of his right to be accompanied.

31. That first Disciplinary Hearing was adjourned to 7 July 2011. On that date the claimant’s representative insisted on receiving written confirmation that any disciplinary action the respondent might contemplate, arising from the hearing, would not include dismissal.

32. The hearing was postponed and the respondent confirmed that disciplinary action would not include dismissal. The Disciplinary Hearing was reconvened for 25 July 2011 but this in turn was postponed until 9 August 2011 due to the claimant’s illness.

The Disciplinary Hearing, machines 13 and 18

33. The Disciplinary Hearing proceeded on 9 August 2011. This date was after the company memo advising that roles within the disciplinary process had been changed. Although Mr Large had written to the claimant inviting him to the Disciplinary Hearing on 27 June 2011 his role changed in the interim and the Hearing was chaired by Mr Keith Megson who was accompanied by Mr Alan Johnston. The claimant was present and was represented by Mr Crothers and Mr Macklin.

34. There was one allegation in relation to both these machines and that was “negligence resulting in unacceptable loss of resource on 19 and 14 June 2011”. The Disciplinary Hearing upheld this allegation and on 17 August 2011 issued the claimant with a written warning.

35. At the Disciplinary Investigation, the panel noted a discrepancy between the claimant’s version of events as between the investigation meeting and the Disciplinary Hearing. The panel noted that at the investigation meeting the claimant had said he had commenced the specification change on machine 18 on 13 June but at the Disciplinary Hearing had stated that he had begun this work on 14 June.

36. The panel noted that when this discrepancy was pointed out to the claimant at the Disciplinary Hearing his explanation was that he was confused as the investigation meeting had taken place some nine days prior.

37. The Disciplinary Panel conducted further investigation after the Disciplinary Hearing. They concluded that it was more likely than not that the claimant had begun the work on 13 June 2011, based on recollections of other maintenance staff, Paul Alexander.

38. In particular the Disciplinary Panel noted Mr Alexander’s statement that the adjustments the claimant had made to the machine had been detrimental and required the further attention of the Consultant Engineer, Graham Smith, to rectify.

39. The Disciplinary Panel substantiated this finding on the basis that the claimant had recorded 15 minutes as the time he had taken to carry out the operation but that this would not have been sufficient and concluded that the claimant had changed his story in order to mitigate the fact that no record was made of mechanical adjustments on 13 June 2011.

40. However neither the evidence from Mr Alexander nor the Panel’s conclusions was put to the claimant and he had no opportunity to challenge or to deny them before the written warning was issued.

The Appeal, machines 13 and 18

41. The claimant appealed the decision to issue him with a written warning. The claimant refuted negligence, denied that there was an excessive amount of downtime in relation to machine 13 and that the 15 minute downtime in relation to machine 18 was not a loss of resource due to his negligence.

42. The claimant’s grounds of appeal indicated that he felt he had been singled out. He suggested that if the maintenance tufting team’s history was considered in the round it would be discovered that all employees had encountered jobs that had taken longer than usual. He concluded he was being discriminated against for some reason or other.

43. The Appeal Hearing took place on 30 August 2011. The appeal was chaired by Mr Large and attended by Mr Graham Smith, Engineer, acting in an advisory role.

44. The Appeal Hearing covered the issue of the respondent’s concern that the claimant had not sought help in respect of machine 13 sooner. The claimant maintained his position that the work required for machine 13 was nothing out of the ordinary.

45. The claimant maintained that the investigator, Mr Bell, had made mention of things in relation to machine 18 that did not apply to machine 18 but to another machine entirely. The claimant also stated that he had got confused in his mind about on which machine he had carried out the spec change on the 13 June 2011.

46. The appeal concluded that the waste of resources in relation to machine 13 had been negligible and alone would have been dealt with normally through counselling if there had been no previous act of counselling for similar behaviour. The latter referring to “performance counselling” given to the claimant on 11 May 2011. This related to the claimant’s poor performance in respect of a failure to record information on a mechanical adjustments record.

47. The record of this performance counselling stated that the claimant had been advised that his performance had not been of an acceptable standard and that any further episodes of poor performance could result in disciplinary action.

48. The respondent took this episode of performance counselling into account when reaching their decision to discipline the claimant for his work in respect of machine 13.

49. The appeal also concluded that the disciplinary panel had correctly identified a discrepancy between the claimant’s description of events as between his investigation meeting and his Disciplinary Hearing. The appeal concluded that the claimant’s description that he had started work on machine 18 on 13 June 2011 was more consistent with the evidence of the witnesses to the incident and that the claimant’s version of events at the Disciplinary Hearing and Appeal Hearing was implausible.

50. The appeal also concluded that the disciplinary panel had been correct to conclude that the adjustments the claimant made to machine 18 were detrimental to the machine settings requiring an engineer to rectify the problem. The appeal concluded that claimant had failed to seek help upon finding machine difficulty or when his own efforts were not making sufficient progress in order to reduce downtime.

51. The appeal upheld the Disciplinary Hearing’s conclusion that the claimant’s “acts and omissions” resulted in unacceptable loss of time and resources and upheld the sanction of the written warning that was issued on 17 August 2011.

Investigatory Meeting, machine 16

52. In the interim and on 29 June 2011, Mr Bell had invited the claimant to an investigatory meeting in relation to machine 16. This was to investigate an issue of incorrect machine adjustments to machine 16 which had occurred on 21 June 2011.

53. This investigatory meeting took place on 30 June 2011, was chaired by Mr Bell who was attended by Mr Keith Parry. The claimant attended and was represented by Mr Crothers. The investigatory hearing took into account two investigation meetings, taken prior to the investigatory meeting, one with a Mr Shane Stevens and the other from Mr Bell himself.

54. Mr Stevens stated that he had assisted the claimant at machine 16 on 21 June 2011, that the claimant had slackened bolts on machine 16 and that he had heard a loud noise.

55. Mr Bell stated that the claimant had slackened the clamping bolts on machine 16, that he had requested help from Mr Stevens and that the machine’s bedplate had dropped down between the hooks. At this point Mr Bell stated that Mr Smith had asked the claimant to remove all the reed plates to allow the bedplate to be checked.

56. Mr Bell had then attended the machine himself. He stated that the bedplate was lying forward, that it was out of the rack. His statement added that this could only happen if the clamping screws were too slack.

57. On the basis of this evidence and the investigation meeting, the respondent concluded that the claimant had made adjustments to machine 16 that resulted in unacceptable loss in resources. A Disciplinary Hearing was recommended.

The Disciplinary Hearing, machine 16

58. On 21 June 2011 the claimant was invited to a Disciplinary Hearing. He was advised that the company was investigating an allegation of negligence resulting in damage to company property in that he had made adjustments to machine 16 that resulted in unacceptable loss in resources.

59. The Disciplinary Hearing was conducted on 4 October 2011. It was chaired by Mr Megson, who was attended by Mr Smith, Consultant Tufting Engineer. The claimant was present and represented by Mr Macklin and Mr Crothers.

60. Mr Megson opened the Disciplinary Hearing by clarifying that the claimant allegedly made incorrect adjustments to machine 16 that resulted in unacceptable loss of resource, namely 6.5 hours downtime.

61. At this point, Mr Macklin sought clarification between this and the allegation as described in the disciplinary invitation which had included a reference to “damage to company property”. Mr Macklin asked if the allegation was of “unacceptable loss of resource” only and if this was a lesser charge. Mr Megson replied no and stated that the 6.5 hours loss of resource was still significant.

62. The Disciplinary Hearing canvassed the investigatory meeting notes and witness statements from Mr Stevens and Mr Bell and put to the claimant that he had slackened the bolts on machine 16 so much that the machine’s gear disengaged and the bedplate dropped.

63. The claimant stated that he had taken advice on slackening bolts in such cases from Graham Smith, the Consulting Tufting Engineer, some years ago and that he had advised the claimant to slacken the bolts till the washers were slack. The claimant stated that this was what he had done at machine 16. Mr Smith made no comment to this evidence.

64. Mr Smith gave a statement of evidence just after the disciplinary interview. He stated that one full turn of the bolts would leave the washers slack and that every bolt would have needed to have been turned 2.4 full turns to have disengaged the rack and the pinion.

65. On the basis of this evidence, and that of Mr Bell, the Disciplinary Hearing concluded that the claimant had slackened the clamping bolts sufficiently to allow the bedplate to drop. The Disciplinary Hearing confirmed the claimant was capable of carrying out this task and had done so over a number of years and that he had the knowledge and experience to carry out the adjustment.

66. The Disciplinary Hearing concluded that it was reasonable for them to conclude that the unacceptable loss of resource could only be as a result of the negligence of the claimant.

67. The Disciplinary Hearing also concluded that “the claimant has been found to be negligent on other occasions and has had a written warning for such negligence. He has been given the opportunity to improve his performance and has failed to do so”.

68. The Disciplinary Hearing also concluded that as the claimant had failed to accept responsibility for any of his negligent behaviour, even after it had been demonstrated that he had been at fault, demonstrated that the claimant was likely to continue to repeat this careless behaviour. On the basis that the company could not risk further incidents of this type, the Disciplinary Hearing deemed it appropriate to impose the sanction of dismissal.

The Appeal, machine 16

69. The claimant was dismissed with effect of 7 July 2011. He was paid in lieu of notice and offered the right to appeal the dismissal. The claimant appealed dismissal on the following bases: He stated that his 34 years’ experience with two carpet companies had not been taken into account by the investigatory panel or the disciplinary panel. The claimant stated that the difficulties that machine 16 were as in the normal course of work, something he had completed many times but in this instance it took longer to complete, nothing was damaged but it did cause downtime, which is a common occurrence in the tufting maintenance machine.

70. The claimant also stated that the presence of Graham Smith, the Consultant Tufting Engineer, at the Disciplinary Hearing prejudiced his position. The claimant stated that Mr Smith had been abusive to him for many years and at one occasion had had to apologise to him for such behaviour and that since the two have never really seen eye-to-eye.

71. The claimant also stated that he believed that his first disciplinary (machines 13 and 18) had been orchestrated to combine with the second disciplinary (machine 16) in order to arrive at his dismissal and that Mr Wackett, who had been on duty on the morning of 21 June 2011 (machine 16), had been in bad form which had contributed to the claimant’s work being investigated.

72. At this stage, the claimant also raised an issue of religious discrimination by identifying a Protestant comparator who he believed to have been treated more beneficially and also suggested that he had been treated to his detriment on the basis of his being “old school”, ie, on the grounds of his age.

73. It is to be noted for this Tribunal that the claimant did not pursue either a claim of religious discrimination or age discrimination.

74. The Appeal Hearing was chaired by Mr Stephen Large, who was attended by Mr Clark for note taking purposes. The claimant was present and represented by Mr Macklin. The appeal panel analysed the grounds of the claimant’s appeal as set out in his appeal letter.

75. The appeal panel also interviewed Mr Wackett and concluded that Mr Wackett had not been involved in the decision to carry out an investigatory meeting or the Disciplinary Hearing against the claimant in relation to any machine.

76. The appeal panel also interviewed Mr Graham Smith and confirmed that he had been involved in an incident with the claimant some years previously and had been abusive to him. Mr Smith acknowledged that he had had to apologise to the claimant at the time.

77. However the appeal panel confirmed that Mr Smith had not contributed to the decision to impose written warnings or dismissal subsequent to any Disciplinary or Appeal Hearings.

78. The appeal panel also investigated Mr Megson who confirmed that he alone had taken the decision to dismiss the claimant and that he had not been in any way influenced by Mr Wackett or Mr Smith.

79. The appeal panel did not accept the claimant’s evidence that he had done nothing different to machine 16 than he had ever done before and concluded that the extra work required on machine 16 resulting in 6.5 hour’s downtime must have been, and therefore was, due to the negligent acts of the claimant. They upheld the disciplinary sanction to dismiss him.

80. The appeal panel also rejected the claimant’s assertion that insufficient consideration had been given to him (his service and his experience) in the disciplinary meetings, prior to reaching the decision to dismiss him.

81. The appeal panel took account of the disciplinary panel’s decision that as the claimant had been found negligent on other occasions and had recently received a written warning for such negligence that he had been given the opportunity to improve his performance and had failed to do so. The appeal panel endorsed this conclusion.

82. In relation to the claimant’s assertion that the first Disciplinary Hearing and sanction had been orchestrated to combine with the second disciplinary to arrive at his dismissal. The appeal panel concluded that Mr Large had passed Mr Bell to investigate incidents at machines 13 and 18 (9 June and 14 June 2011) to investigate this on Wednesday, 15 June 2011, Mr Large stated that Mr Bell had begun making initial enquiries. The appeal panel also concluded that Mr Large had appointed Mr Bell to carry out an investigation into the incident on machine 16 on 22 June 2011 and in the circumstances concluded there was no evidence of orchestration by anyone in relation to the Disciplinary Hearings.

THE LAW

Unfair Dismissal

83. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer. Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.

84. Article 130 states at paragraph (2), a reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do,

(b) relates to the conduct of the employee,

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.

85. Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and;

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

86. Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure to complete them lies with the employer.

87. The statutory test for what reasons may amount to dismissal are set out at Article 130 of the Order. These include capability of modifications, conduct, redundancy, a statutory-necessary dismissal or some other substantial reason.

88. It is for an employer to establish the reason for the dismissal and that this dismissal falls into one of those potentially fair categories. The decision as to whether the decision to dismiss is fair must be decided (by a Tribunal) with reference to:-

(a) whether in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably or unreasonably in keeping it as a sufficient reason for the dismissal; and

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

Case Law

89. The Tribunal took relevant case law into account and in particular:-

British Home Stores v Burchell [1978] IRLR 379.

Rogan v South Eastern Health and Social Care Trust [2009] NICA 57.

90. It is case law that gives the Tribunal guidance on the way in which it should carry out its determination. A Tribunal must examine whether the respondent had a reasonable belief in the reason for the dismissal and that that belief was sustained by the employer having carried out a reasonable investigation and that the ultimate sanction of dismissal is “within the band of reasonable responses” of what other reasonable employers would have done in the same circumstances.

91. If a Tribunal concludes that the employer had a reasonable belief in the guilt of the employee of the misconduct as charged as informed by the employer having carried out a reasonable investigation and that the employer’s response is within the band of reasonable responses a Tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view for that of the employer.

92. In assessing this statutory test in light of the guidance in British Home Stores v Burchell as adopted in Rogan v South Eastern Health and Social Care Trust the Tribunal can only scrutinise the employers’ belief and the quality of the investigation conducted to see if these were “reasonable”. The Tribunal cannot conduct an investigation of its own nor can it criticise an employer for not conducting a more stringent investigation. This Tribunal considers that an employer’s investigation includes the whole of the disciplinary process up to the point of the Appeal Hearing and decision.

Having carried out a reasonable investigation and that the employer’s response is within the band of reasonable responses a Tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view for that of the employer.

93. In assessing this statutory test in light of the guidance in British Home Stores v Burchell as adopted in Rogan v South Eastern Health and Social Care Trust the Tribunal can only scrutinise the employers’ belief and the quality of the investigation conducted to see if these were “reasonable”. The Tribunal cannot conduct an investigation of its own nor can it criticise an employer for not conducting a more stringent investigation. This Tribunal considers that an employer’s investigation includes the whole of the disciplinary process up to the point of the Appeal Hearing and decision.

The Tribunal’s Conclusions

94. In light of the facts found and how the law applies to these the Tribunal concluded that the claimant was unfairly dismissed.

The Tribunal concluded that the respondent failed to carry out a reasonable investigation on which they could have formed the reasonable decision that the claimant had been guilty of the allegations as charged.

In reaching this conclusion the Tribunal noted that in the decision to appoint Mr Large as appeals manager no provision was made for those cases, like the claimant’s, where Mr Large had previously been involved in the disciplinary processes leading to the appeals he subsequently heard.

Before the changes were implemented Mr Large instigated both investigations against the claimant. In the first disciplinary charge Mr Large had acted on the investigation panel’s recommendation for disciplinary proceedings to be brought against the claimant and he invited him to the Disciplinary Hearing.

This was unfortunate in that, at the least, it created the impression that Mr Large had a less than independent view of the claimant’s disciplinary charges by the time he came to deal with them at the appeals.

It is often the case in smaller organisations with no designated Human Resource department that the disciplinary functions are carried out by a range of middle to senior managers. However there is a need for such organisations to ensure that these functions are carried out in such a way that the process retains its integrity. The Tribunal concluded that this had not been the case here.

The Tribunal noted other instances where the process in this case was tainted by a mixture of incompetence and role confusion which impacted on the integrity of the process.

These include the fact that at the first Disciplinary Hearing Mr Megson gathered and relied on evidence obtained after the Hearing, without giving the claimant the opportunity to challenge or deny it.

Also the Tribunal took account of the fact that the claimant’s appeal allegations included the idea that there had been a “trawl back” to identify other episodes that had not previously been thought about as disciplinary matters, this allegation was levelled at Mr Large himself.

However the Tribunal noted with some concern that not only did Mr Large decide to conduct the appeal in spite of this, he gave his own evidence in relation to it at the start of the Appeal Hearing.

The Tribunal also took into account the fact that at the first Appeal Hearing Mr Smith, Consulting Engineer, was present. He was acting in an advisory role to assist with the technical details about the machines. However after the Appeal Hearing, and prior to Mr Large’s decision on the Appeal, Mr Smith gave a witness statement against the claimant.

Further the Tribunal also noted that at the second investigation meeting, which was chaired by Mr Bell, Mr Bell also gave evidence against the claimant to that investigation.

The Tribunal also noted that at the second Disciplinary Hearing Mr Smith was again present in an advisory role and gave a witness statement subsequent to that hearing.

However the Tribunal also took into account what it regarded as the most fatal flaw in this disciplinary process that most contributed to its conclusion that the process was unfair. This was when, at the second Appeal Hearing, Mr Large upholds the decision to dismiss the claimant on the basis that he had received a written warning and thereby given the opportunity to improve. However the claimant had not received the written warning at that stage.

This fact alone suggests a level of, at best incompetence and at worst, a haste and a determination to dismiss the claimant without a proper process.

The Tribunal did not consider that this was a case where the provisions of Polkey would apply, given the extent of the procedural mishaps and how these diminished the respondent’s ability to form a reasonable belief in the claimant’s alleged misconduct.

Accordingly the Tribunal concluded that the claimant was unfairly dismissed.

Compensation

Basic Award

95. 16 x 1.5 x £384.06(gross pay) = £9,217.44

Compensatory Award

96. The respondent’s representative did not challenge the figures set out in the schedule of loss except that these did not take account of her submission that the claimant had not fulfilled his duty to mitigate his loss. She stated and it was not disputed that the claimant had applied for 7 jobs between October 2011 and May 2012. It was also agreed that the claimant had not registered with any recruitment agencies nor had he rung any other carpet manufacturers looking for work and that he had not applied to Tesco’s, B and Q or others for casual work.

97. For his part the claimant stated that he had signed on and had complied with the obligation actively to apply for work before being granted his benefit. The claimant agreed that he had not considered registering with recruitment agencies.

98. The Tribunal noted that the claimant was 62 years old when he was dismissed. The Tribunal also noted that the claimant had been employed all his life. The Tribunal accepted the claimant’s unfamiliarity with recruitment agencies and did not accept that his failure to register with any amounted to a failure to mitigate his loss.

99. Furthermore the Tribunal noted that the claimant had applied for only 7 jobs but noted the evidence from the claimant’s Job Centre “Book”. This recorded the claimant’s visits and job applications and more importantly the occasions when it had been noted that there was “nothing suitable” for the claimant to apply for.

100. The Tribunal concluded that the claimant did not fail in his duty to mitigate his loss.

Financial Loss to date of hearing

101. 7.10.2011 – 15.5.2012 31 weeks x £306.07(net pay) = £9,488.17

Less Benefits Received @£67.50 X 26weeks = £1,755.00

Less Notice Pay @£306.07 x 12 = £3,672.84

Nett Loss to date of hearing = £4,060.33

Loss of Statutory Rights = £500

Total Loss to Date

£9,217.44 + £4,060.33 + £500 = £13,777.77

Future Loss

102. The claimant’s representative submitted that this was a case where it would be appropriate to make a “career long award”. This was on the basis that the claimant was now 63 and unlikely to secure employment before his retirement date.

103. Mr Daly submitted articles and documents which demonstrated the unlikelihood of the claimant’s future employability. These documents were not disputed.

104. However in all cases Tribunals make assessments of future loss. These assessments always take into account claimant employability and the current labour market trends and awards seek fairly and equitably to compensate for what the likely period of future unemployment facing the particular claimant.

105. In this case the Tribunal sets that period as two years which coincides with a “career long” award”. In reaching this decision the Tribunal took account of the fact that the claimant is unemployed for the first time, which is difficult in itself, the difficulty he will face gaining employment in his own relatively narrow area of expertise and the difficulties he is likely to face obtaining other skilled work at this stage.

106. Further the Tribunal also took into account the difficulties the claimant is more likely than not to face in obtaining other work, either unskilled or casual. Employers taking on unskilled or casual employees need to invest money in training and would expect a longer return on that investment than the claimant could offer.

107. Accordingly the Tribunal orders the respondent to pay the claimant the following total:-

Future Loss

108. 96 weeks x £306.07 = £29,382.72

Total Amount Claimed = £43,160.49

Grossing up £43,160.49 less tax free element £30,000.00

Tax Due on £13,160.49 plus 20% tax rate (£2632.09) = £15,792.59 + tax free element (£30,000.00) = £45,792.59

Total Payable = £45,792.59

109. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 15, 17 and 31 May and 20 June 2012, Belfast.

Date decision recorded in register and issued to parties:

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McErlain v Regency Carpet Manufacturing L... [2012] NIIT 00075_12IT (18 January 0 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/75_12IT.html Cite as: [2012] NIIT 00075_12IT, [2012] NIIT 75_12IT

Industrial Tribunals Northern Ireland Decisions