THE INDUSTRIAL TRIBUNALS 

CASE REF:	2892/04

CLAIMANT:			Andrew Carmichael	

RESPONDENT:		LMI Foods Limited		

			 
DECISION

The unanimous decision of the Tribunal is that the claimant was not unfairly dismissed by the respondent.

Constitution of Tribunal

Chairman:		Mr P Cross
Panel Members:	Mr J Devlin
			Ms T Madden

Appearances:

The claimant was represented by Mr B. Mulqueen, Barrister-at-Law instructed by Messrs Wilson Nesbitt, Solicitors.

The respondent was represented by Mr M. Potter, Barrister-at-Law instructed by Messrs O’Reilly Stewart, Solicitors. 

1.	Sources of Evidence

The tribunal heard oral evidence from Mr Alan O’Neill, the Warehouse and Transport Manager, of the respondent Company, Mr Mark Ringland, one of the Directors and Mr Malcolm Newbiggin, the Sales Director.  The tribunal also heard from the principle shareholder and Managing Director of the Company, Mr Laurence Irvine.  Mr John McKee of Woodsides of Ballyclare, gave evidence on behalf of the respondent.  The only witness for the claimant was Mr Andrew Carmichael himself.  

2.	At the end of the hearing Counsel for both parties asked if they could submit written submissions and list the relevant cases for consideration by the tribunal.  This they did and the tribunal having read the submissions and cases met to consider their decision on 10 October 2005.  

3.	The Claimant’s Claim

3.1	In his originating claim to the tribunal the claimant explained that having been employed by the respondent as a lorry driver from May 1987 until 5 August 2004 he was summarily dismissed for gross misconduct.  The reason for the dismissal was that he was accused of having syphoned diesel fuel from his employer’s lorry into a jerry can.  He had been seen doing this at Woodsides Yard in Carrickfergus by one of the Woodside employees, Mr John McKee.  Mr McKee had made a telephone call to the respondent stating that he had seen the driver of vehicle registration number CKZ 5290 syphoning diesel into the jerry can.  As a result of the allegation a disciplinary hearing was held on Tuesday 27 July 2004 and following that hearing the claimant was dismissed by letter dated 5 August 2004.  The dismissal being with immediate effect on the grounds of gross misconduct.  An appeal hearing was held on Friday 10 September 2004 but the appeal was unsuccessful and the dismissal was upheld by Mr Irvine, the Managing Director of the respondent Company.

3.2	The claimant went on to allege in his originating claim to this tribunal that he had been unfairly dismissed due to gross inadequacies in the respondent’s investigation and handling of this incident, ‘not least the fact that the respondent relied upon two “independent and objective” witnesses neither of whom actually witnessed the alleged misappropriation of diesel from a company vehicle’.

4.	The Respondent’s Case

The respondent denied the allegation of unfair dismissal and contended that the claimant had been disciplined fairly and properly and that a proper decision to dismiss him had been made and that this decision had been upheld on appeal.  The respondent did not argue that the two independent witnesses had not been before the disciplinary hearing or the appeal and argued that this did not represent a flaw in their investigation procedures.

5.	The Issues	

5.1	The tribunal identified the issues in this case as being the investigation by Mr O’Neill into the facts surrounding this incident.  Was a proper investigation conducted prior to the first disciplinary hearing?  

5.2	Secondly, was the respondent justified in invoking the ultimate sanction of dismissing the claimant on the evidence that was before both the disciplinary hearing and the appeal bearing in mind the claimant’s argument that Mr O’Neill and the other witness could not actually see the fuel being passed into the jerry can?  

5.3	Was it reasonable for Mr Irvine to conduct the appeal hearing and to himself visit the scene of the incident and carry out some enquiries of his own after the completion of the original investigation by Mr O’Neill?

5.4	Was the disciplinary hearing and appeal flawed by the fact that neither Mr McKee nor the other independent witness, Mr Yaw, appeared at the hearings and were not available to be cross examined by the claimant?

5.5	The claimant complained to the tribunal, that he had not been provided with a contract of employment or employer’s handbook containing the disciplinary code of conduct.  Was this state of affairs correct and did it prejudice the claimant’s right to a fair disciplinary process?  

6.	The Legal Framework

The legal framework under which this dismissal occurred is set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 where an employer can show that the reason for the dismissal of the employee was due to the latter’s conduct then the dismissal can be deemed fair depending upon the employer acting reasonably and the substantial merits of the case.  In determining whether dismissal for misconduct is fair in the circumstances where the employee is alleged to have carried out an act of misconduct the leading case which must guide this tribunal is British Home Stores Limited -v- Burchell [1978] IRLR 379.  That case laid down the tests that a tribunal must impose upon an employer before the tribunal can say with any certainty that the dismissal is fair.  These tests are as follows:-

(i)	that the employer believed that the employee carried out the act of misconduct;

(ii)	that the employer had reasonable grounds upon which to sustain this belief;

(iii)	the employer carried out as much investigation into the matter as was reasonable in all the circumstances.

7.	Analysis of Evidence

The tribunal learned that the claimant had left his prearranged route to visit Woodside’s Yard for the purpose of a stop.   The tribunal having heard the evidence of Mr O’Neill concerning what he considered to be removal of fuel from the claimant’s lorry, which confirmed the statement available at the disciplinary hearing.  The tribunal heard the evidence of the claimant, and preferred  the evidence of Mr O’Neill who was a completely independent witness and having noticed what he considered to be theft of fuel took the trouble to immediately report the matter to the owners of the vehicle.  

The tribunal therefore finds that the respondent was acting reasonably in accepting this evidence and taking disciplinary proceedings against the claimant.

8.	Findings of Fact	

8.1	With this statement of Mr O’Neill the respondent conducted a hearing into the allegations against the claimant.  The tribunal find that the hearing was fair in that the claimant was given a copy of the statement from Mr O’Neill and was given full details of the allegations against him.  The fact that Mr O’Neill was not present to be cross examined by the claimant was in the view of the tribunal not a material matter as it was reasonable for the respondent not to wish to disrupt Woodsides business by taking one of their employees away for an internal enquiry in the respondent Company.  The tribunal was guided by the Northern Ireland Court of Appeals judgment in Ulsterbus Limited -v- Henderson [1989] IRLR 251.

8.2	The tribunal find that the respondent acted reasonably in accepting the evidence of Mr O’Neill and taking the disciplinary case against the claimant.

8.3	The disciplinary decision to dismiss the claimant was then appealed by the claimant and the appeal went to the Senior Director and Joint Owner of the respondent Company, Mr Irvine.  Mr Irvine took the trouble to personally visit the site of the incident to see the layout and to meet Mr O’Neill and Mr Yaw.  Mr Yaw supported the statement that had already been given by Mr McKee.  The tribunal find that the conduct of Mr Irvine in conducting the appeal was in all respects fair and indeed Mr 
Irvine went further than many final arbiters in these cases by taking the trouble to visit the site and speak to the witnesses.   	

8.4	The tribunal accepted evidence of Mr Irvine that he would have been reluctant to have lost a long serving employee, skilled at his job, in the present market place where it is difficult to recruit good drivers.

8.5	The tribunal accepted that Mr Irvine probably did have some knowledge of the case against the claimant prior to hearing the appeal.  However, the tribunal is conscious that this is a small organisation where all the directors were in daily contact on all topics.  The tribunal accepted that Mr Irvine although aware of the charges against the claimant took his own course which is evidenced by his visit to the site of the incident and his interviews with the independent witnesses.

9.	Decision of the Tribunal

The tribunal having considered these findings of fact and the authorities already referred to especially British Home Stores Limited -v- Burchell hold as follows:-

(a)	The tribunal hold that the respondent believed that the claimant had carried out the act of misconduct namely the theft of the diesel fuel.

(b)	The respondent had reasonable grounds on which to sustain this belief in that at first it had the statement of an independent witness who had seen the incident and this was subsequently backed up by another witness who re-enforced this belief.

(c)	The respondent carried out as much investigation into the matter as was reasonable in all the circumstances.  The tribunal was informed that no tally had been made of actual fuel put into the lorry at the beginning of the day and the fuel that came back at the end of the day.  This was partially due to the incident occurring just before 12 July holidays when the lorry was returned to an almost empty depot.  However, the tribunal accept the evidence of the respondent Company that variations in driving techniques of individual drivers, routes taken and other factors can lead to different fuel consumption on the same lorry on different days.  The tribunal accept that this evidence would not have been conclusive in either way.  The tribunal do hold that for a relatively small organisation the respondent conducted a proper and thorough investigation, they held a disciplinary hearing at which the facts of the matter were put clearly to the claimant and the statement of Mr McKee was available for him.  Subsequently, on his appeal the claimant 

had the advantage of a thorough review of all the facts by Mr Irvine and had an opportunity to put any further points to Mr Irvine that he considered would be helpful to his case.

(d)	The tribunal is conscious that it is not sitting to re-hear the disciplinary case against the claimant.  The tribunal’s task is to determine whether the respondent Company, as a reasonable employer, conducted a fair and proper enquiry and came to a reasonable conclusion in all the circumstances.  

The tribunal hold that this respondent Company did act in a reasonable and proper way in conducting this enquiry and that the decision to dismiss the claimant was a reasonable and proper response to the serious allegations that had been brought against the claimant.  For these reasons the claimant’s claim is dismissed. 

Chairman:

Date and place of hearing:	18 and 19 August 2005, Belfast.		

Date decision recorded in register and issued to parties: