THE INDUSTRIAL TRIBUNALS 

CASE REF:	 3895/03

APPLICANT:		William James Kane

RESPONDENTS:		Tesco Distribution

DECISION

The unanimous decision of the tribunal is that the application be dismissed.

Appearances:
The applicant was represented by Mr Alan White of USDAW.
The respondent was represented by Ms T Rossiter, Solicitor, DLA, Solicitors

Summary Reasons
1.	There was no real dispute about the facts.  The applicant was working the night-shift at the respondents’ premises in Antrim.  He had nearly finished one load when he was approached by his superior and told, when he had finished, to move to a trunk job.  As he was completing his original load he saw another employee being sent to do a different loading job.  The applicant considered that the other employee should have been put to carry out the trunk work.  He complained to his superior, stating his reasons.  His superior discussed the reasons but indicated that he did not accept them as being sufficient to prevent the applicant doing the work and he instructed him to do it.  The applicant refused.  The matter was further discussed both on the shop floor, and in the office, with a witness of the applicant’s choosing.  The applicant’s superior asked if the applicant was refusing a reasonable request.  The applicant maintained his refusal on the basis that the request was unreasonable.

The applicant’s superior summoned his superior, a Mr Moore.  While he was being found the applicant and his witness had a few minutes together.  The applicant’s witness suggested that he should ‘bite the bullet’.  When Mr Moore arrived, the applicant explained his objections.  Mr Moore indicated that they, ‘the management’, had a bigger picture than the applicant had, that they needed the trunk done, and again asked if the applicant was refusing a reasonable request.  The applicant maintained his refusal.  Mr Moore then explained that such a refusal might lead to disciplinary action and he left the room to do the necessary paperwork.  He subsequently completed the paperwork and informed the applicant that he was suspended.

The applicant was a union shop steward and Mr White of the Union of Shop Distribution Allied Workers was informed of the applicant’s suspension at the start of business the following day.  An investigation was conducted.  Mr White was provided with copies of the notes of the various investigatory interviews and all other relevant papers.  The applicant was interviewed again and the decision to terminate his employment was taken.  The applicant appealed but the decision was upheld on appeal.

2.	The tribunal was provided with the various documents governing the nature of the work being carried out, the procedure in the case of grievances and the disciplinary arrangements.  It was not disputed that the proper procedure for the raising of grievances was not followed.  Nor was it disputed that the company’s disciplinary procedures did include, as an example of an act of gross misconduct, the deliberate refusal to carry out a reasonable instruction given by a more senior member of management.  The tribunal also heard evidence that, in a situation where another employee had refused to carry out a reasonable instruction, the applicant had asked management to give him a cooling off period following which the matter was resolved.  The procedures also contained a requirement that where disciplinary action was being considered against a recognised shop steward the appropriate full-time union official must be notified prior to action being taken.

3.	The essence of the applicant’s case was that there was no cooling off period given to the applicant and that, at the time of the refusal and suspension, the applicant’s full-time trade union official had not been contacted.  If this had been done, it was suggested, the applicant would have re-considered his position and the problem could have been avoided.

4.	There is no doubt that no specific cooling off period was given.  However, no such requirement is built in to the procedures.  The applicant’s full-time trade union official was not informed at the time of the original suspension.  However, the procedures state that when disciplinary action is being considered the full-time official must be notified prior to action being taken.  The procedures also require, in case of alleged gross misconduct, that suspension on full pay should take place immediately with an investigation to follow.  There is, therefore, some doubt as to whether the procedures require, in the case of a shop steward, that the full-time official is contacted at the time of suspension but before the investigation and subsequent decision.  The tribunal considers that the drafting of the procedures is, in this respect, unsatisfactory.  It is of the view that, given that the suspension is specifically required to take place immediately, and given that the suspension is merely a prelude to an investigation, the full-time union official does not have to be informed until the investigation commences and disciplinary action is being contemplated.

Even if this were not so, the tribunal considers that, taking the procedure adopted in the applicant’s case overall, the procedure was fair.  The applicant refused to carry out a lawful order.  He had an opportunity of stating his reasons which were overruled.  He could have raised the matter as a grievance but did not choose to do so.  He chose instead to maintain a steadfast and persistent refusal to carry out the work he had been instructed to do.  That persistent refusal took the form of several refusals given to his immediate superior, even when he was told that more senior management would have to be involved.  While            Mr Moore was being informed he was advised by his witness to ‘bite the bullet’.  He then maintained his refusal to Mr Moore even when he was advised that the disciplinary process would be invoked.  He then had a further opportunity of considering his position while the paperwork was being dealt with.  The whole process extended over a significant period, yet the refusal was maintained.  The applicant had more than enough opportunity to consider his 

position to be consistent with fairness.  His side of the story was properly and satisfactorily taken into consideration and there was no other failure in procedure such as to render the 
process unfair.  The offence of failing to carry out a reasonable request from a superior is specifically stated by the company’s agreed rules of procedures to be a matter of gross misconduct.  Even if it had not been put forward as a specific example, it would have to be regarded as gross misconduct under any normal disciplinary procedure.  Dismissal for such an act of gross misconduct could not be said to fall outside the range of reasonable responses to such an offence and accordingly the tribunal finds that the applicant’s dismissal was not unfair.

Chairman:

Date and place of hearing:       21 May 2004, Belfast

Date decision recorded in register and issued to parties: