THE INDUSTRIAL TRIBUNALS 

CASE REF: 1511/03	

APPLICANT:	James McQuoid	

RESPONDENT:	Vanguard Rental Corporation	

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed and the tribunal awards him the sum of £4124 in compensation.  The tribunal found that the applicant contributed to his dismissal and assessed the contribution at 70%.

Appearances:

The applicant was represented by Mr C Hamill BL, instructed by Wilson Nesbitt, Solicitors

The respondent was represented by Mr O Segal BL, instructed by Harvey Ingram Owston, Solicitors

1.	The respondent is now known as Vanguard Rental Corporation.  The tribunal amended the title of the proceedings accordingly.

2.	In his originating application dated and filed on 2 June 2003 the applicant claimed he had been unfairly dismissed on 11 March 2003, that his dismissal was in breach of his contract of employment and that he had been discriminated against on grounds of disability.  The alleged disability was that the applicant could not read and write.

	The respondent in its notice of appearance dated 25 June 2003 and filed on 26 June 2003 stated that the applicant had not been unfairly dismissed but had been summarily dismissed for gross misconduct and denied any discrimination on grounds of disability.  The gross misconduct was said to be intimidation of several fellow employees.

3.	The applicant’s representative indicated that, as it was accepted reasonable adjustment had been made by the respondents in respect of the applicant’s inability to read and write, the claim for disability discrimination was not being pursued.  It was not therefore necessary to decide whether or not inability to read and write was a disability within the terms of the Disability Discrimination Act 1995.  The claim of disability discrimination was dismissed.

3.1	It was accepted the applicant had been dismissed.

3.2	The issue before the tribunal was whether or not the applicant was unfairly dismissed.

4.	Having heard the evidence of the respondent’s witnesses: Lisa McQuoid who was the respondent’s Branch Manager, Patricia McGookin, Area Manager and John Mott, Regional Director and Jim Laverty an employee; the applicant and his witnesses Damien Crilly and Thomas Hueston; and considered the documents produced which included statements of applicant’s fellow workers, minutes of Investigatory Interview, Disciplinary hearings and Appeal, the Tribunal found the following facts:

4.1	The respondent is a car rental company providing cars for customers flying into airports.

4.2	The applicant was employed from 1996 by the respondent at Belfast International   Airport as a service representative.  His job entailed preparation and valeting of  cars for customers of the respondent, checking cars for damage, driving cars to collection point and driving customers to the airport terminal.

4.3	On 18 February 2003 a staff review was being carried out.  Andrew Bentz asked to be moved to a different shift from the applicant.  He said the applicant was unco-operative in relation to work and also that the applicant caused him to feel intimidated by talking about his religious beliefs, political parties and friends he had in prison.

4.4	The applicant’s team leader, Brendan Campbell, had had trouble with him on two occasions.  One was in or about July 2002 when he had refused the applicant a holiday sought at short notice.  The applicant was angry and walked out of the room.  On his return he indicated he had left otherwise he would have hit his team leader.  On another occasion the team leader was phoned to come in on his day off and if he didn’t the applicant was going to knock Linda Ashworth’s block off.  Linda Ashworth, a sales rep. had complained to the applicant about his failure to clean cars properly.

4.5	Further that in or about September 2002 Pamela Curry had asked to be moved off the applicant’s shift because she felt threatened and bullied by the applicant.

4.6	Lisa McQuoid, the Branch Manager decided to carry out an investigation.

4.7	Statements were obtained from Andrew Bentz, Brendan Campbell and Pam Curry.

4.8	An Investigatory Interview was held on 22 March 2003.  The applicant was accompanied by Thomas Heuston, a work colleague.  Lisa McQuoid told the applicant she had received complaints about him:

1.	His lack of teamwork or co-operation.
2.	Threatening behaviour – threats of physical abuse to staff members.
3.	Making comments on religion and political parties in the workplace, which could be perceived to be threatening.

The applicant’s response was:

1.	He did help other staff members when asked.
	2.	He denied ever threatening anyone but accepted he would slag or banter anyone.
	3.	In relation to discussing religious beliefs or political parties or referring to people he knew in political parties it was just bantering; he did not mean to hurt anyone and he was sorry if he had offended anyone.
	4.	He accepted that the issue of banter had been discussed with him before in reviews.
	5.	When asked what Company Policy on harassment was he said “No bigotry”.

4.9	At the end of the interview Lisa McQuoid decided to invoke the disciplinary process and suspended the applicant on full pay.

4.10	The disciplinary hearing was scheduled for 4 March 2003.  It was held by Ms Patricia McGookin, Area Manager.  The applicant was accompanied by Mr Billy Condit.  As the company did not recognise the Trade Union, Mr Condit was regarded as the applicant’s companion but did ask questions on behalf of the applicant.  He also went over the statements provided of Andrew Bentz. . Brendan Campbell and Pam Curry with the applicant.  Mr Condit objected to the vagueness in content of the statements.  Ms McGookin said the statements did point to several specific incidents, and there were also issues such as attitude, standard of work and levels of sickness which would be raised.  Levels of sickness was not raised.

4.11	The applicant said he could not remember the incident referred to in Brendan’s statement regarding the threat of physical abuse.  In relation to Pam Curry’s statement that she felt physically threatened by his body language, his response was he had never threatened a woman like that and “if she’s taken it that way she should have said something”.  When it was put to him that people would be intimidated and scared to approach him sometimes, he replied: “Yes, just like I am intimidated now”.

4.12	He accepted he bantered about politics or the news and quoted a comment he made to Andrew Bentz about the PSNI being “peelers” or “black bastards”.  He accepted the respondent company did not tolerate discussion of religion or politics in the workplace and that people had said to him “Knock that on the head Jim”.  Regarding bringing up in conversation about friends he had in gaol for political reasons, he replied “Just if something’s on the news but not to scare anyone”.  When asked if he appreciated some people might find a difference between conversations about religion and politics and those on other matters.  He relied “Yes, but I do not think of it like that”.  In relation to his comment about not fighting in the war in Iraq as he had his own army, the IRA, his version was that he said he would be fighting for the Irish and the remark was only banter.

4.13	In relation to the comment “that’s not my job” he admitted he might sometimes have made it but not to be difficult.  When asked what he would be doing when asked to drive a customer to the airport which he felt was more important, he replied “Just washing a car, when I have to wash it completely before it gets streaky”.

4.14	About aggressive interactions with staff, everybody had “off days” and he never meant to hurt anyone.

4.15	Mr Condit asked why no formal complaints had been made.  Ms McGookin said people did not come forward because they felt intimidated; that the disciplinary proceedings were a result of witness statements made which signified a formal grievance against the applicant and with a common issue of feeling intimidated.  

4.16	It was agreed the procedure would be adjourned to 11 March 2003 to enable further statements to be obtained from workmates of the applicant as requested by Mr Condit.

4.17	The form of statement, drafted by respondent’s Human Resource department, asked the following questions:

i.	Do you know Jim McQuoid?

ii.	What is the nature of your relationship with Jim McQuoid?

iii.	Please describe how Jim McQuoid behaves towards and interacts with you?

iv.	Are you happy for this information to be passed to Jim McQuoid?

While the interviews were conducted by Ms Lisa McQuoid each interviewee confirmed the answers were his/her own.  Some supplied additional information in response to the 3rd question.

4.18	Statements were obtained from 17 people: Pam Currie, Brendan Campbell and 15   other people who had worked with the applicant.  At the adjourned hearing the applicant and Mr Condit confirmed they had had access to and understood the statements.  The content of the statements was not disputed.

4.19	Nine had no problem with the applicant.  Of these Thomas Heuston said he had consoled Pam Curry on one occasion and had heard the applicant say he was not going to help her.  Damien Crilly said he had comforted Pam on one occasion.  Of the remaining six: Mervyn Carson, team leader, said “Jim was a wind-up merchant.  Have spoken to him about winding people up and to watch what he says”.        Brenda Robb, sales agent at terminal desk, confirmed the problem Pam Curry had with him.  Eileen Bowen, sales agent and cousin of the applicant, said he had upset and shocked her by comments made to her.  Joanne McClelland, team leader at airport desk, confirmed that he worked less than others and also confirmed the incident over the threat to Linda Ashworth.  Another confirmed complaints about his work attitude and refusal to help other workers.  Finally another said he was not comfortable in the applicant’s presence or working alongside him, that he was unco-operative and was aggressive to young key time workers, his thoughts to others could be malicious, that he didn’t trust him and would be frightened about his reactions to his statement and only wanted it shown “as a last resort”.

4.20	The applicant accepted he might have said things to people but if he had harmed      people he wanted to apologise to them.  He could not recall threatening a female member of staff and said he would like to apologise if he did say something.  

4.21	Ms McGookin presented the poster about which the applicant had complained to Lisa – a photograph of him connecting him with the IRA.  An investigatory interview had been arranged but the worker who had put up the poster had apologised to the applicant and the applicant then asked that no further action be taken by the company.  The applicant accepted he was initially offended by the poster.

4.22	Ms McGookin was satisfied the evidence supported the allegations of threatening and un-cooperative behaviour and threats of physical abuse, that these amounted to gross misconduct and summary dismissal was appropriate.  While she accepted there was no evidence of any direct physical threat she felt the severity of the issues – the intimidation experienced within the team, the applicant’s lack of co-operation and its effect, the impact if the applicant returned to the team bearing in mind there was no indication he appreciated the inappropriateness of his behaviour – merited dismissal.

4.23	The applicant exercised his right of appeal.  His appeal was heard by Mr John Mott,   Regional Director, on 25 March 2003.  Mr Mott had copies of all statements and notes of both hearings.  Prior to the hearing he asked Ms McGookin about the statements and she said she believed them.

4.24	The applicant accompanied by Mr Condit outlined the basis of his appeal: that there was 	lots of banter and slagging in work – there had been a couple of complaints before eg Sinn Finn poster incident; the sales agent incident had been blown out of all proportion; looking for Brendan Campbell in the pub was meant to be friendly not threatening; about having friends in gaol, everybody knows people in this position; didn’t refuse to help others but said “wait a minute”.

4.25	Mr Mott put each of the various complaints to the applicant.  The applicant’s response was similar to that previously given with some slight variation:

(a)	In relation to Andrew Bentz’ complaints and in particular that he felt intimidated and scared to complain, his response was that he slagged but didn’t do it to hurt and that staff should have said.

(b)	In relation to the suggestion he became aggressive and threatening to    Brendan Campbell, he couldn’t remember what he said but that he needed to go before he did anything.  He denied saying he wouldn’t have stopped hitting Brendan.  He has been consistent in this denial.

(c)	He accepted that saying “Not my job” could be seen as unco-operative.

(d)	In relation to talking about his political beliefs his response was that he did, that he talked about everything.
(e)	His comment on the Iraq war was that we couldn’t go to war as we’re on cease fire here.
(f)	He could see why people felt threatened but in relation to Brendan he was only trying to help him, that he knew where he lived, had offered to help him move, advised him not to go to a certain area.
(g)	In relation to Pam Currie saying he went beserk with her he explained that a young guy was there to help him and Pam asked him to help her, cars were piling up and he said “Hurry up cars are to be got ready”.  If he had been told she felt threatened he would have apologised.  However when asked if he changed after he apologised he replied.  “No change as this is how I am.  It was brought up at a review once”.  Mr Condit pointed out that it was only brought to applicant’s attention once and no advice was given on how to improve.
4.26	Mr Mott didn’t feel the applicant understood the seriousness of what he had done – prepared to apologise if he had upset someone.  Mr Mott therefore was not satisfied the behaviour would not recur.  Applicant’s attitude was in his own words “no change as this is how I am”.  This remark has been consistent throughout the proceedings.  The dismissal was upheld.

4.27	In his evidence to the tribunal the applicant again made similar responses to those previously given.  He accepted:
(i)	Lisa had brought him in and spoken to him about banter.  He thought it was just about general banter but did not dispute she talked to him about taking other people’s feelings into account, what he should and should not say.
(ii)	having a heated argument with Brendan over a holiday.  He couldn’t recall what he said but recalled walking out of the office and probably did go back and say he had had to leave or he would have hit Brendan.
(iii)	telling Andrew Bentz on car journey from Larne that he had a friend in jail for 8 years and then acquitted.
(iv)	he had complained about the poster incident but asked Lisa to take no further steps after Paddy, the perpetrator, had apologised to him.
(v)	having seen Pam Curry crying a couple of times but didn’t ask why; he would not have asked her if he had upset her or what was wrong.
(vi)	on occasions he would refuse to help others either because he was busy or on an off day when he was grumpy.
(vii)	Re war in Iraq comment, what he said was our army, the Irish Army, would not be going.
(viii)	He was always slagging and bantering.
(ix)	Brendan had told him “more work less banter”.
(x)	Jim Laverty had taken him through the respondent’s Harassment Policy and Disciplinary Procedures but said that harassment did not mean anything to him as no one had brought his attention to its seriousness.
(xi)	People would know his political and religious affiliation by his conversation; if something came on news/radio he would most likely make a comment that indicated his view.
He said no one had ever told him he had upset them.
5.          The Employment Rights (Northern Ireland) Order 1996
Article 130(1) provides:  In determining whether the dismissal of an employee is fair or           unfair, it is for the employer to show -
(a)	the reason for the dismissal, and that it is either a reason falling within paragraph (2) or some other substantial reason.
In this case the reason for dismissal relates to the conduct of the applicant and therefore falls within (2) as an admissible reason.  
Paragraph (4) provides: Where the employer has fulfilled the requirements of 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.
The Respondent’s Employee Handbook states that if an alleged act of gross misconduct is committed, the Company will normally exercise the right to suspend the employee on basic pay while full investigations are completed.  Following a disciplinary hearing, if the Company is satisfied that gross misconduct has occurred, the result will normally be summary dismissal.
Included in the list of acts normally regarded as gross misconduct are “rude or abusive behaviour to colleagues; serious breach of Company policies, practices, procedures or instructions; serious harassment.  There is also a provision that the list of examples is neither exhaustive nor exclusive.
6.	The tribunal in considering whether or not it was reasonable for the respondent to dismiss took into account the submissions of counsel.  It looked at the following:
6.1	Did the respondents act reasonably in forming their view of the facts?  Did they have:
(a)	Belief.
(b)	Reasonable grounds for their belief.
(c)	At the time they formed the belief on reasonable grounds had they carried out as much investigation as was reasonable in all the circumstances?
This is the threefold test laid down in British Home Stores –v- Burchill  approved by the Court of Appeal in Weddel & Co Limited Limited –v- Topper 1980 IRLR 96.
The tribunal was satisfied the respondent had complied with this test, that Lisa McQuoid carried out a reasonable investigation.  She had interviewed three employees who had complaints against the applicant.  While there was some absence of dates there were specific incidents.  The applicant had attended the investigatory interview accompanied by Mr Heuston.  He was told the nature of the complaints and given an opportunity to respond.
The tribunal was satisfied the respondent had a reasonable belief that the applicant had displayed threatening, intimidating and unco-operative behaviour towards his colleagues including threats of physical abuse based on the three complaints and the applicant’s response and that Ms McQuoid had sufficient grounds to recommend disciplinary procedure.
6.2	Did the respondent adopt reasonable procedures in course of taking the decision to dismiss?
The disciplinary interview was held in two parts.  The tribunal was of the view that it would not necessarily have been appropriate for the additional statements to have been sought in advance.  Such action could have been misinterpreted.

The Code of Practice on Disciplinary and Grievance Procedure provides that except in the case of gross misconduct a warning procedure should be followed, there should be a hearing so that the employee has the opportunity to answer the charges against him and a right of appeal.
At the disciplinary hearing the applicant had the opportunity to answer the charges against him.
The applicant exercised his right of appeal against the decision to dismiss.  At the appeal hearing he was given the opportunity to deal with the case against him.  Counsel for the applicant submitted it was improper for Mr Mott to have asked       Ms McGookin about the witness statements and for her to have told him she believed them.  Clearly if she had not believed them she would not have dismissed the applicant.  The EAT in Roe –v- Radio Rentals Limited [1982] IRLR 177 emphasised that it was not necessary that the manager hearing an appeal should insulate himself from the manager who has recommended or implemented the dismissal, and treat himself as judge hearing two contesting parties.  The manager hearing the appeal is essentially exercising a managerial rather than a judicial function.  The correct approach is as indicated by Lord Denning in Ward –v- Bradford Corporation [1971] 70 LGR 27 at 35; “we must not force these disciplinary bodies to become entrammelled in the nets of legal procedure.  So long as they act fairly and justly, their decision should be supported”.
The tribunal was satisfied the respondent adopted reasonable procedures in the course of taking the decision to dismiss.
6.2	The reasonableness of the respondent’s assessment of the overall merits of the case – was the penalty one which a reasonable employer would have imposed.  The tribunal has to be satisfied that in all the circumstances dismissal was a reasonable response ie within the band of reasonable responses to the employee’s conduct Iceland Frozen Foods –v- Jones  [1982] IRLR 439 “the function of the industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair”.
The fact that other employers might reasonably have been more lenient is irrelevant, likewise what the members of the tribunal would have done.
In cases of misconduct, the application of the test whether the employer acted as a “reasonable employer” would in deciding to dismiss includes two elements:
(i)	the sufficiency of the employee’s conduct taken by itself.
(ii)	the surrounding circumstances.
(i)	Would a reasonable employer have decided that the employee’s conduct, taken on its own, was sufficiently serious to warrant dismissal?  This shall be determined in accordance with equity and the substantial merits of the case.  Article 130(4) the Employment Rights (Northern Ireland) Order 1996.
The Code of Practice recommends that “Workers should be made aware of the likely consequences of breaking disciplinary rules. ----  In particular they should be given a clear indication of the type of conduct often referred to as gross misconduct which may warrant summary dismissal”.  Clearly there are types of gross misconduct which are so obvious they do not require any explanation such as theft or violence.  
In the circumstances of this case the tribunal took the view that the respondent had failed to ensure that the applicant knew that his conduct merited dismissal.
The applicant had never received any official warnings but had been told about his banter and its inappropriateness; by his team leader,              Mervyn Carson, by his supervisor, Brendan Campbell and by his branch manager, Lisa McQuoid and by other workers saying to him, “Knock it on the head Jim”.  At no stage was there any forewarning to him of the seriousness with which the respondent would regard his behaviour.
(ii)	The surrounding circumstances: the respondent took into account the applicant’s attitude to his conduct, its effect on others, the likelihood of repetition.
It was suggested that it acted inconsistently in its treatment of the applicant.  Both Mr Crilly and Mr Heuston gave evidence that banter about religion and politics was common-place in the work premises.  Mr Heuston, however, was not aware of any such banter in front of managers.  An employer cannot be considered to have treated other employees differently if unaware of the conduct of the other employees.  Mr Crilly referred to football emblems.    Ms McGookin said she has asked all employees to refrain from bringing these to work as they might be construed as offensive.  In relation to the poster incident, it was clear management were prepared to take action but refrained at the request of the applicant.
It was also pointed out there was a gap in time between the complaints relied upon.  The respondent’s explanation was the reluctance of the other workers because of fear of intimidation.
7.	The tribunal was satisfied that the decision to dismiss was not within the band of reasonable responses which a reasonable employer would have taken, bearing in mind the applicant’s level of education, his seven years of service and the accepted lack of understanding of the seriousness of his behaviour, without having previously warned him of the likely consequences of his behaviour which had been ongoing for some considerable time.   The tribunal therefore made a finding of unfair dismissal.
8.	In relation to compensation the tribunal could not say what the effect would have been had the respondent warned the applicant of the likely consequences of his behaviour.  He might or might not have repeated his behaviour.  The tribunal therefore has not made a Polkey deduction.
In relation to contributory fault however the tribunal was satisfied the applicant contributed to his dismissal by his behaviour – his lack of co-operation with those on the same team, his lack of consideration for the feelings of others, his unwillingness to accept that his attitude and behaviour caused others to feel intimidated, his resort to threats when things were not going his way, his unwillingness to change – and took the view that it was just and equitable to reduce compensation by 70%.

9.	The applicant confirmed to the tribunal that he had been unfit for work since on or about 17 June 2004 and continued to be in receipt of Incapacity Benefit from that time.  The tribunal therefore has awarded compensation for loss of earnings up to 17 June 2004 only and has made no award in respect of future loss of earnings.
10.	The tribunal awards compensation as follows:
	Basic Award
	8 weeks at £228.46					          £  1,827.68
	Compensatory Award
	11.03.03- 17.06.04             66 weeks at £177.56	          £11,718.96
	Loss of statutory Rights				          £     200.00
                                                                                                          £13,746.64
                                                                                                           
	Less 70% Contributory Conduct			          £  9,622.64
								          £  4,124.00
								          ========								
	Interest
	
This decision is a relevant decision under the Industrial Tribunal [Interest] Order (Northern Ireland) 1990.

Recoupment

Your attention is drawn to the notice below which forms part of the decision of the tribunal.
The Employment Protection (Recoupment of J.S.A. and I.S.) Regulations (Northern Ireland) 1996 apply.

Chairman:

Date and place of hearing:	20, 21 and 22 April 2004, 24 February and 3 March 2005, Belfast.			

Date decision recorded in register and issued to parties:

Case Ref No:   1511/03

APPLICANT:	James McQuoid	

RESPONDENT:	Vanguard Rental Corporation	

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	£13,746.64 reduced to £4,124.00	
(b)  Prescribed element	£11,718.96 reduced to £3,515.69	
(c)  Period to which (b) relates:	11/03/03 – 17/06/04	
(d)  Excess of (a) over (b)	£608.31	

	The applicant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the applicant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the applicant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the applicant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the applicant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the applicant and regardless of any dispute between the applicant and the Department.