Dolan v Smyth (t/a Roslea Oil Service)  (Unfair Dismissal)  (11 November 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 1095/03

APPLICANT:	Andrew Dolan

RESPONDENT:	Eamon Smyth trading as Roslea Oil Service

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 and is entitled to compensation in the sum of £2,367.00.

Appearances:

The applicant appeared on his own behalf.

The respondent was represented by Mr N Ferguson of W N Ferguson Solicitors.

The tribunal has determined to provide reasons for its decision in extended form as it considered that reasons in summary form would not sufficiently explain the grounds for its decision.

Extended Reasons

1.	This is a complaint by Mr Dolan that he was dismissed without notice from his employment as a driver with the respondent on 10 March 2003.  The respondent conceded that the applicant was dismissed summarily for gross misconduct on 6 March 2003 and contended that the dismissal was fair in all the circumstances.

2.	The issue in this case is whether the dismissal was for a reason, relating to conduct, within Article 130(2)(b) of the Employment Rights (Northern Ireland) Order 1996.  If so, was the dismissal fair, in particular, whether in the circumstances the respondent acted reasonably or unreasonably in treating the applicant’s conduct as a sufficient reason for dismissing the applicant.  This must be determined in accordance with equity and the substantial merits of the case.

3.	After considering the whole of the evidence, both oral and documentary, we found the following facts.

4.	The respondent employed only one other member of staff in addition to the applicant at the date of dismissal.  Another lorry driver had left the respondent’s employment a few weeks earlier.  The respondent had provided staff with a written statement of terms and conditions and had a written disciplinary procedure.  The applicant had not acknowledged receipt of the written statement of terms and conditions.

5.	The respondent employed the applicant as a driver from January 1993 until 6 March 2003.  The respondent considered the applicant as a good employee until sometime in 2001.  The applicant’s weekly earnings were agreed as £160.00 gross and £141.66 nett.

6.	On 27 May 2002 the applicant received a written warning for absenteeism from the respondent which was inserted into his pay packet without notice or any disciplinary hearing.  On 21 June 2002 the applicant received a final written warning regarding absenteeism from work.  Again this was issued without any disciplinary hearing or prior notice that such a warning was under consideration.

7.	The applicant was absent from work for a week in November 2002 but no disciplinary action was taken by the respondent.

8.	On 21 December 2002 a lorry driven by the applicant became stuck in soft ground resulting in it being off the road for six hours.  No disciplinary action was taken by the respondent against the applicant.

9.	The tribunal could not be satisfied that the entries made by the respondent on the exhibit “R 3” were contemporaneous and could not be satisfied that the events recorded on the exhibit did in fact take place.  A number of the events noted were never raised with the applicant during his employment with the respondent.

10.	On 6 March 2003 the applicant was given a busy delivery list which required him to make an early delivery up a particularly tricky laneway.  The lorry did not remain on the laneway and ended up on its side resulting in damage to the vehicle and interruption of deliveries for that day.

11.	The respondent attended the scene of the incident but made no enquiry with the applicant as to how the incident occurred.  The respondent formed a view from his own observations that the applicant was guilty of reckless driving.  No measurements were taken of the scene of the incident.  On the respondent’s return to the office he instructed a member of staff to type up a letter of dismissal for gross negligence for issue to the applicant.  Reckless driving was classified as gross misconduct under the respondent’s disciplinary procedure.  The applicant received the letter on 12 March 2003.

12.	The respondent considered the financial impact of the incident of 6 March 2003 as a financial disaster for his business.  The respondent considered that he could not afford to increase his insurance premiums by claiming on the insurance policy for the damage to this vehicle.  The applicant would not have known of these insurance difficulties.

13.	The respondent’s disciplinary procedure indicates that where an act of gross misconduct is alleged it “will lead to an interview with management and an opportunity to offer an explanation”.  The handbook indicated that there “will be a reasonable investigation”.

14.	The final written warning received by the applicant in June 2002 did not provide any indication as to the consequences of repetition of similar or different breaches of the respondent’s rules or procedures.  The events of 6 March 2003 could not be described as the “same conduct” as that which resulted in earlier disciplinary action.

15.	The applicant was in receipt of sickness benefit from 6 March 2003 until 25 May 2003.  Since 26 May 2003 the applicant has been in new employment where he is earning slightly more than he earned with the respondent.

16.	Both parties made oral submissions.  The respondent contended that the reason for dismissal was gross misconduct, in effect reckless driving.  Initially the respondent contended that the dismissal was fair in that the respondent from his own experience as a driver was in a position to reasonably conclude that misconduct had occurred on the facts.  The submission on behalf of the respondent concluded with a concession that there was an unfair dismissal, in that not only had the respondent’s own procedures not been followed, but no procedure had been followed.  However it was contended that there should be no award for compensatory loss other than an award in respect of loss of statutory rights for if a disciplinary hearing had been held the outcome would have been unchanged.  It was also submitted that the applicant had contributed to his dismissal by his conduct, in particular his absenteeism.

17.	The applicant submitted that he was not the first person in the respondent’s employment to “bog” a lorry.  It was an unfortunate incident that the laneway subsided on the day and the lorry turned over on its side.  The applicant believed that he was the victim of the respondent’s ill humour that the damage could not be recouped from the respondent’s insurance.

18.	The tribunal has had regard to the provisions of Article 130 of the Employment Rights (Northern Ireland) Order 1996.  In determining whether or not a dismissal is fair the onus is on the respondent to prove on a balance of probabilities:-

(i)	The reason for the dismissal of the applicant, and

(ii)	That it is either a reason falling within Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
Article 130(2) gives four specific substantial reasons of a kind such as to justify the dismissal of an employee.  In this case the respondent admitted that there was a dismissal.  The respondent stated on the Notice of Appearance lodged with the Office of the Industrial Tribunals and Fair Employment Tribunal a number of reasons for the dismissal culminating in the incident on 6 March 2003.  The respondent contended to the tribunal that the driving of the applicant on 6 March 2003 was reckless and was a reason falling within Section 130(2)(b) of the 1996 Order namely a reason relating to the conduct of the applicant.

19.	The tribunal is mindful of the wording of Article 130(1) of the Employment Rights (Northern Ireland) Order 1996.  It is the opinion of this tribunal that the respondent has not proved that the reason for the dismissal of the applicant was the applicant’s misconduct in the months following the issue of a final written warning in June 2002.  The tribunal concluded after hearing all the evidence that the reason the applicant was dismissed in March 2003 was because of the events of 6 March 2003.

20.	British Home Stores –v- Burchell (1980) ICR 303 has established a three fold test that must be satisfied if dismissal of the applicant, by the respondent, for a reason relating to conduct is to be fair.  The respondent must show that he had a genuine belief on reasonable grounds after reasonable investigation that the applicant’s behaviour justifies dismissal.

21.	Paragraph 14 of the Code of Practice on Disciplinary Practice and Procedures in Employment provides that in determining the disciplinary penalty, so far as possible account should be taken of the employee’s record and other factors, including penalties imposed on employees for similar offences in the past.  It was submitted to the tribunal, without objection from the respondent, that there had been earlier incidents of damage to the respondent’s vehicles, perhaps with less financial loss to the respondent, which had not resulted in disciplinary action against the relevant employee.

22.	It is clear even where misconduct is admitted by an employee the requirement of reasonableness in Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 relates not only to the outcome in terms of the penalty imposed by the employer but also to the process by which the employer arrived at that decision.  In this case the applicant denied that he was guilty of the misconduct alleged.  Accordingly this tribunal had to ask itself whether dismissal fell within the “band of reasonable responses” having applied that test to the circumstances of this case and the procedure used by the respondent in reaching the decision to dismiss – Whitbread plc –v- Hall (2001) IRLR 275.

23.	In carrying out a reasonable investigation, the respondent is required to investigate the complaint of misconduct fully and fairly.  Paragraph 5 of the Code of Practice issued by the Labour Relations Agency advises of the importance that procedural arrangements be used consistently and fairly.  Paragraph 10(vii) advises that individuals should be informed of the complaint against them and given an opportunity to state their case directly to those considering disciplinary action before decisions are reached.  McLaren –v- National Coal Board [1988] IRLR 215 emphasises the importance of ensuring that employees are given a proper hearing before dismissal occurs.  A dismissal can still be unfair under the statute, even though justified at common law, if in all the circumstances the employer has acted unreasonably for example refusing to consider extenuating or mitigating circumstances.

24.	In this regard, the tribunal considered the actions of the respondent and in particular the failure of the respondent to carry out any investigation after 6 March but to immediately decide to dismiss without any disciplinary hearing against the applicant.  The respondent company while small in number had drafted a handbook that envisaged no dismissal would take place without a reasonable investigation and an opportunity to offer an explanation.

25.	The tribunal had to determine whether the respondent had established on a balance of probabilities the reason for dismissal and that it was a reason of a kind such as to justify the dismissal of an employee holding the position that employee held.

26.	The respondent failed to provide any reason for the failure to hold a disciplinary hearing.  A breach of the Code of Practice on Disciplinary Rules and Procedure does not render a dismissal automatically unfair but is a matter to be taken into consideration by the tribunal.  The respondent failed to apply the disciplinary procedure set out in their own statement of terms and conditions provided in accordance with the Employment Rights (Northern Ireland) Order 1996.  The respondent failed to apply any procedural safeguard in the circumstances of this case, Polkey –v- AE Dayton Services Ltd [1997] IRLR 503.  The total lack of procedure and the failure to provide the applicant with a proper and adequate opportunity to challenge information that was to play a part in the decision of the respondent to dismiss tainted the decision with an inherent lack of equity.

27.	Accordingly, in all the circumstances of this application, this tribunal considers that the respondent did not act reasonably in treating this conduct as a sufficient reason for dismissing the applicant, taking into account the equity and the substantial merits of the case – Gilham and others –v- Kent County Council (No. 2) [1985] IRLR 18.

28.	The applicant did not seek a remedy under Article 147 of the Employment Rights (Northern Ireland) Order 1996 and accordingly compensation has been calculated in accordance with Articles 152 to 158 of that Order.  We have had regard to the evidence.  The driving of the applicant may or may not have been blameworthy but the tribunal considered it relevant that there was no investigation hearing held, after the evening of 6 March, which would have provided an opportunity to make clear the reasons for the vehicle overturning on that date.  While the applicant made no appeal against the decision to dismiss we considered it relevant that the respondent failed to advise him of the right to appeal in the letter of dismissal.  We considered it of note that even the final written warning issued to the applicant in June 2002 made no reference to a right of appeal.

29.	The tribunal considered that we first had to determine whether we thought it just and equitable to reduce the basic award, taking into account the conduct of the applicant.  The respondent had denied the applicant a number of important rights; in particular the opportunity to know fully or properly the information, which the respondent intended to, rely on in making his decision.  In this case the misconduct which led to the decision to dismiss was a belief of the respondent, without adequate investigation, that the applicant had been guilty of reckless driving.  The right to a fair hearing and the opportunity to state your case is a very important right.  In all the circumstances, outlined above, we did not consider it just and equitable to make a reduction to the basic award.

30.	The applicant did receive Income Support or Jobseeker’s Allowance.  Accordingly the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 will apply.  Period of Prescribed Element runs from 6 March 2003 until 3 April 2003.  The parties’ attention is drawn to the Notice below which forms part of the decision of the tribunal.

Basic Award

The effective date of termination was 6 March 2003.  The applicant was aged 37 at the time of his dismissal.  He had 10 year’s service with the respondent, from January 1993 until 6 March 2003.  The applicant is entitled to one weeks gross pay (subject to the statutory maximum of £250 gross per week) for each complete year of service in which he was between the age of 27 and 37.

	The applicant’s basic award is therefore calculated as follows:-

		Ten weeks @ £160.00		=		£1,600.00

31.	The tribunal considered the wording of Article 157(1) and (6) of the Employment Rights (Northern Ireland) Order 1996.  In adjudging whether to reduce the compensatory award, we first considered whether the applicant’s conduct contributed in part to his dismissal.  The tribunal considered that the applicant’s conduct had not contributed to his dismissal.  The tribunal was of the view that the applicant could not have known that his conduct would or might lead to his dismissal.  The applicant even when he had committed a repetition of similar conduct in November 2002 that had led to the final written warning in June 2002 was not disciplined.

32.	In considering what was just and equitable, we had regard to our findings of fact and also that no deduction had been made to the basic award.  This accords with the judgement of Holland J in Charles Robertson (Developments) Ltd –v- White [1995] ICR at page 357.  The tribunal was required to reduce the compensatory award by such proportion as we considered 

“just and equitable, in all the circumstances having regard to the loss sustained in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”

[Article 157(1) of the 1996 Order].

33.	The tribunal took cognisance of Polkey –v- AE Dayton Services Ltd (1987) IRLR 503.  “Consideration of what might have happened had the (disciplinary) procedure been fair is relevant to the assessment of any compensation for the applicant”.  The onus is on the respondent to adduce evidence that the dismissal would have occurred in any event had a fair procedure been followed.  The respondent’s representative although he made a submission to the tribunal as to what it should conclude as to the chance of dismissal if procedural failures had not taken place had not called any evidence to that effect.  However the tribunal concluded, on the balance of probabilities, that it was possible to conclude that there may have been a dismissal if the applicant had been provided with a disciplinary hearing and an opportunity to address the matters under consideration by the respondent.  The tribunal considered that it was reasonable to assume that a disciplinary hearing would have been held within a four-week period taking account of the injuries sustained by the applicant on 6 March 2003.

34.	In all the circumstances the tribunal concluded that it was just and equitable to assess compensation as follows:-

Compensatory Award

4 weeks @ £141.66 (£566.64)				£567.00
Loss of statutory industrial rights				£200.00 
								£2,367.00

Monetary Award Grand Total					£2,367.00
Prescribed Element of the award				£   567.00

Excess of monetary award over prescribed element		£1,800.00

35.	This decision is a relevant decision under the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.

Chairman:
Date and place of hearing: 1 September and 18 November 2003 at Enniskillen.
Date decision recorded in register and issued to parties: