THE INDUSTRIAL TRIBUNALS 

CASE REF:	204/03

CLAIMANT:		Darren Keenan

RESPONDENT:	Langford Lodge Engineering Company Limited	

			 
DECISION 

The unanimous decision of the tribunal is that the claim of unfair dismissal is dismissed.

Appearances:

The claimant appeared in person and represented himself. 

The respondent was represented by Mr P. Bloch of the Engineering Employers’ Federation.

1.	The tribunal heard evidence from the claimant on his own behalf and from Mr Gary McAreavey and Mr William Kerr on behalf of the respondent. 

2.	In his originating application dated 3 January 2003, the claimant complained that he had been unfairly dismissed by the respondent on the principal basis that his colleague, Paul Murtagh, was dismissed for the same offence but was reinstated on appeal.  The claimant contended that the disparity in the outcome of their respective appeals rendered the Respondent’s decision to dismiss him unfair.  He accepted however that the original decision to dismiss him for gross misconduct was fair.  The Respondent contended that the appeals were dealt with on the basis of their individual merits and that the decision to uphold the dismissal of the claimant while reinstating Mr Murtagh was entirely justified due to the differences between the two cases.

3.	The main issue that falls to be decided therefore is whether or not the respondent acted reasonably in deciding to dismiss the claimant.

4.	The tribunal found the following facts:

5.	The claimant was employed as a labourer/fork lift driver in the machine shop of the respondent company from 1 October 1998 to 4 December 2002.  On Sunday 24 November 2002 the claimant went into work at 8.00 am.  His workmate, Paul Murtagh, did not arrive at work until approximately 9.50 am.  They left the workplace at approximately 12 noon without clocking out and did not return to the workplace until approximately 2.00 pm. when they did not clock in.  

6.	The claimant and Mr Murtagh did not return to their workplace by the main gate but rather re-entered the premises surreptitiously and did not report to their supervisor, Mr Roy Lynn.  

7.	The activities of the claimant and Mr Murtagh came to light on 25 November 2002 and were investigated by Mr McAreavey, the general manger of Langford Lodge, who had heard a rumour that something untoward occurred on the Sunday shift.  He spoke to a supervisor, Mr John Mitchell, who told him that people had left the site on Sunday without clocking out and returned late after lunch.  On the same day Mr McAreavey interviewed the claimant and Mr Murtagh together.  Mr McAreavey was told that Mr Murtagh arrived in late on the Sunday morning having not been home on the Saturday night and being the worse for drink.  He was not fit to drive a car or to operate the machinery.  The claimant took Mr Murtagh home to Maghera and back in his car.  The purpose of the journey was to get a set of keys and a change of clothes for Mr Murtagh.  They forgot to clock out and got back shortly after 2.00 pm.  They entered the premises via the church gate and were unable to explain why they entered hanger 1 by a side door rather than the entrance.  They were approached by Mr Lynn and told him that they had been watching a match.  They told Mr McAreavey this was not in fact true and that there was no match on television and were unable to provide an explanation as to why they had so advised Mr Lynn.  They told Mr McAreavey that they had forgotten to clock in and asked Mr Lynn to take 25 minutes off their pay for not clocking in and out.

8.	Mr McAreavey then interviewed Mr Ronnie Naidoo who was acting supervising officer on 24 November.  He confirmed that Mr Murtagh was late in arriving at work at 9.50 am on 24 November.  Mr Naidoo didn’t notice that Mr Murtagh wasn’t wearing his work clothes but decided that he was not in a suitable state to run the machinery.  At 12 noon Mr Naidoo was told by the claimant and Mr Murtagh that they were going out for a while and asked him to come.  He declined but told them that they would need to see Roy Lynn who was on site.  Mr Naidoo noted that they left without clocking out possibly by a side door.

9.	On 26 November 2002 Mr Murtagh sought out Mr McAreavey and informed him that he had not told the truth the previous day and now wanted to set things straight.  He told Mr McAreavey that they had gone to Crumlin and that he thought it had been enough to tell Mr Naidoo.  Mr Murtagh told Mr McAreavey that they intended to tell their supervisor on Monday to deduct an hour from their pay.  Mr Murtagh indicated 

that the claimant had made up the previous story.  Mr Murtagh made it clear that he was in the wrong. 

10.	On 27 November 2002, Mr McAreavey interviewed Mr Lynn.  Mr Lynn was aware that Mr Murtagh and the claimant appeared to be away between 12.15 and 2.00 pm.  At 2.05 pm he approached them on their return to work and they told him that they had been watching the first half of a football match.  Mr Lynn asked them why they hadn’t told him and whether they had clocked in.  They told Mr Lynn that they hadn’t clocked in and that they felt that Mr Naidoo was in charge.  The claimant told Mr Lynn that he should take 45 minutes of both of them. 

11.	Both the claimant and Mr Murtagh were charged with gross misconduct and disciplinary hearings took place on 27 November 2002.  Mr Murtagh’s disciplinary hearing proceeded first.  He told the hearing that he was late into work on Sunday due to having slept in.  The claimant had suggested going to Crumlin to get something to eat and they left the site at 12 noon and forgot to clock out.  He accepted that he had previously told Mr McAreavey that they had gone to Maghera.  They had a couple of drinks in Crumlin, played pool and talked.  He didn’t return to the site through the main door and entered the factory through the treatment door rather than the quality door because the claimant said that Mr Lynn would cause a bit of bother.  He accepted that he came in by a less conspicuous route in order to avoid Mr Lynn.  He told the hearing that he thought that it was a bit suspect but went along with it.  He didn’t explain the situation to Roy Lynn because Paddy McLaughlin was his supervisor.  He was not aware that the claimant had approached Roy Lynn and told him to take time off for both of them.  After telling lies to Mr McAreavey on Monday he went to see him on the Tuesday morning and told him the truth.  He told the hearing that the claimant had pressurised him into lying on Monday.  He further stated that having forgotten to clock out he thought it would be better not to clock in again.

12.	The claimant’s disciplinary hearing proceeded a short time later.  He told the hearing that he arrived at work on the Sunday at 7.50 am.  At approximately 12 noon he left with Mr Murtagh to go to Crumlin to get a bite to eat and a bottle of drink.  He came back at 1.50 pm climbed over the church gates and came in through the back door to avoid being noticed.  He told Mr Lynn that he would ask John Mitchell to take an hour off on Monday morning.  He told Mr Lynn that he had been away watching a football match for between 45 minutes and an hour.  He finished work at 3.00 pm.  On Monday he told John Mitchell to take an hour off for both of them.  He told Mr Mitchell that he was at Mr Murtagh’s house.  They had discussed going off site with Mr Naidoo but he didn’t go.  The claimant said that it didn’t cross their minds to clock out.  He admitted telling lies on Monday about going to Maghera.  He climbed the church gate rather than the farmer’s gate because it was closer.  He came in by the rear door to avoid being seen.  He didn’t tell Roy Lynn about returning late because he didn’t want to raise an issue about it.  He agreed that he was purposely deceiving the company.  He told Mr Lynn on Sunday that he was watching a football match.  The claimant maintained that Mr Murtagh was not fit to drive a car.  

13.	As a result of the disciplinary hearings both the claimant and Mr Murtagh were dismissed for gross misconduct for precisely the same reasons which were as follows:-

(i)	Committing clocking offences by leaving the premises at 12 noon without clocking out and returning around 2.00 pm without clocking in.

(ii)	Failing to report to the supervisor present (Roy Lynn) on leaving or returning and being on unauthorised absence from the workplace.

(iii)	Failing to tell the truth at interview on Monday 25 November and purposely setting out to avoid and deceive Roy Lynn on Sunday by coming back to work through a side door.

(iv)	Attempting to defraud the company by proposing to claim overtime for hours that were not worked.  

The only difference in the letters issued to the claimant and Mr Murtagh was that the letter to Mr Murtagh referred to the fact that he had stated in his defence that he had voluntarily admitted the truth on Tuesday 26 November and that he felt himself to be influenced by the claimant.

14.	Both the claimant and Mr Murtagh appealed against the decision to dismiss them.  The claimant’s appeal proceeded on 4 December 2002 and was heard by Mr William Kerr, the Human Resources Manager of the respondent company.  The claimant was represented by Mr Paul Blair of AMICUS.  The claimant apologised for his behaviour and said that it was a spur of the moment thing.  He said that he was under pressure due to a court case, was taking tablets and had never done anything like it before.  Mr Blair said that the claimant was well liked and a good worker.  He also made representations about the court case and the claimant being under pressure.  Mr Kerr indicated that he understood the claimant’s defence to be that it was a one off situation and that he was not behaving normally due to the pending court case.  

15.	On the same day Mr Kerr wrote to the claimant and told him that he could find no reasonable grounds for over-turning Mr McAreavey’s decision.  

16.	Mr Murtagh’s appeal was heard on 5 December 2002.  Mr Murtagh told Mr Kerr that he wasn’t aware that Roy Lynn was his foreman and that he had been told by Paddy McLaughlin that Ronnie Naidoo was in charge.  He admitted to not clocking in and claimed that this was because he had forgotten to clock out when he was leaving.  He told Mr Kerr that he was going to book time off.  He said that he was not aware of the dispute between the claimant and Roy Lynn.  He told Mr Kerr that Mr Naidoo couldn’t book time off because he couldn’t access the computer system.  As for not telling the truth to Mr McAreavey, Mr Murtagh told Mr Kerr that he felt intimidated by the claimant who had a reputation as a ‘hard man’ and was unable to tell the truth with the claimant sitting beside him.  He felt less pressure on the Tuesday when the claimant wasn’t in and sought out Mr McAreavey in order to tell him the truth.  He felt it was wrong to interview them both at the same time and place.  When they had returned to the site on 24 November Mr Murtagh claimed that he would have been happy to go through the quality door as he was going to book time off but the claimant said not to because Roy Lynn would have given them hassle and Mr Murtagh felt intimidated by the claimant.  He said that he wouldn’t have gone to see Mr McAreavey on the Tuesday if the claimant had been in.  He described the claimant as really loud and “in your face” and he said he was frightened by him.

17.	Mr Murtagh was also represented by the same shop steward, Mr Blair.  Mr Blair advised the appeal hearing that Mr Murtagh had told him that he felt very pressurised by the claimant and that he would not have told the truth had the claimant been present.  He said that he was aware that the claimant had approached Mr Murtagh on Wednesday and was really “in his face”.  Mr Murtagh described the claimant as aggressive and said that he was angry that Mr Murtagh had told the truth.  Mr Murtagh felt frightened and threatened by the claimant and thought that he was going to be hit or punched.  Mr Blair told the appeal hearing that Mr Murtagh had expressed his “deepest sorry” and even apologised to Mr Blair.  Mr Murtagh told the appeal hearing that he was really sorry and that it would never happen again.  Mr Blair reinforced this by saying that Mr Murtagh told him that the claimant could be very persuasive and that Mr Murtagh wouldn’t have left the factory if the claimant hadn’t been in.

18.	Mr Murtagh was informed of the outcome of his appeal by letter dated 6 December 2002.  Mr Murtagh was advised that his appeal had been successful because it was felt that he had been coerced into acting against his better judgement and that he was frightened and had voluntarily gone to tell the truth to Mr McAreavey on Tuesday.  Mr Kerr therefore overturned the decision to dismiss Mr Murtagh and substituted a lesser punishment in its place.  Mr Kerr decided that he should be suspended without pay from 2 - 20 December 2002 inclusive and be issued with a final written warning which would be effective for 6 months from 2 December 2002.  

19.	In determining whether or not the respondent acted reasonably in deciding to dismiss the claimant, we remind ourselves that it is not for the tribunal to substitute its view for that of the employer.  Provided that the employer’s response was within the range of reasonable responses the dismissal will not be unfair.  In order to decide the matter it is necessary to determine whether the disparity in treatment of the claimant and Mr Murtagh on appeal renders the decision to dismiss the claimant unfair.  

20.	The claimant’s main contention was that it was unfair that Mr Murtagh was re-employed whereas he was dismissed when they had both done the same thing.  He also suggested that Mr Murtagh may have received preferential treatment because he was a machinist rather than a labourer/fork lift truck driver.  In addition he submitted that it was in the interests of the respondent to get rid of him as it had been seeking ways to reduce the wage bill for labourers and that dismissing him would enable them to employ somebody else at a lower rate of pay.  He also submitted that it was unfair because Mr Murtagh had two final written warnings prior to the case whereas the claimant had none.  The claimant also drew attention to the fact that Mr Murtagh left the company soon afterwards due to pressure both from the workforce and management.  

21.	While it is undoubtedly correct that both the claimant and Mr Murtagh were charged with the same disciplinary offences arising out of the one incident, the Respondent was clearly entitled to have regard to their relative culpability on the basis of the evidence adduced at the original disciplinary hearings and on appeal. The explanation put forward by the Respondent for the disparity in the respective decisions on appeal is entirely credible and accords with the contentions put forward on behalf of both employees on appeal.   It is also material to note that the reduced penalty imposed on Mr Murtagh on appeal while clearly not as severe as dismissal was by no means light. 

22.	Both Mr McAreavey and Mr Kerr denied the claimant was treated unfairly because of the nature of his job.  They also refuted the allegation that they had dismissed the claimant in order to reduce the wage bill. We are satisfied that these factors played no part in the decision to dismiss the claimant. We are also satisfied on the basis of their evidence that there were no current or live written warnings in respect of Mr Murtagh at the time of the case.   Neither Mr McAreavey nor Mr Kerr were aware of any pressure to force Mr Murtagh out of his job and understood that he had voluntarily resigned and taken up a post elsewhere.   It is unnecessary to resolve this dispute as it has no bearing on the question of whether or not the claimant was unfairly dismissed.

23.	The tribunal raised an issue with the parties in relation to the manner in which the appeal hearings were conducted.  It was apparent from the evidence that the claimant did not have an opportunity to refute the allegations that Mr Murtagh made against him in the course of his appeal.  However, as the claimant’s appeal was heard and decided before Mr Murtagh’s appeal proceeded, the material put forward by Mr Murtagh at his hearing by way of mitigation could not have had an adverse impact on the claimant’s appeal.  Mr Kerr could only deal with the matter on the basis of the evidence that was placed before him. The tribunal further accepts that it would be normal practice for disciplinary hearings to be conducted separately.  We are therefore entirely satisfied that Mr Kerr’s decision to dismiss the claimant was not procedurally unfair.

24.	Having considered all the evidence and the contentions of the parties the tribunal is satisfied that the decision to dismiss the claimant was reasonable and in particular the fact that this decision was upheld on appeal whereas Mr Murtagh’s punishment was reduced to a financial penalty and final written warning does not render the decision to dismiss the claimant unfair.  We are satisfied that Mr Kerr was fully justified in affirming the dismissal of the claimant and substituting a lesser penalty in respect of Mr Murtagh on the basis of the evidence before him.  The claim is therefore dismissed.

Chairman:

 
Date and place of hearing:	24 June 2005, Belfast.

		

Date decision recorded in register and issued to parties: