THE INDUSTRIAL TRIBUNALS
CASE REF: 52/04
CLAIMANT: Michael Patrick Scullion
RESPONDENT: J J Loughran
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. The tribunal Orders the respondent to pay the sum of £5,387.95 compensation to the claimant. The tribunal determines that the claimant's breach of contract claim is not made out and it is dismissed.
Constitution of Tribunal:
Chairman: Mr J V Leonard
Panel Members: Dr V Eakin
Mr B Heaney
Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Faloon & Toal, Solicitors.
The respondent was represented by Mr K Magill, Barrister-at-Law, instructed by Rosemary Connolly, Solicitor.
REASONS
- The tribunal heard oral evidence from the claimant on his own behalf and from the respondent and also from a Mr Higgins of Cookstown Enterprise Centre. The tribunal also inspected original and copy documentation adduced in evidence, including bundles of documents submitted on behalf of the claimant and the respondent. There was a significant conflict in evidence as between the respective parties in regard to a number of areas, which conflict the tribunal resolved in making the findings of fact as set out below.
- In his Originating Application the claimant complained that he had been employed by the respondent and that this employment had been terminated. He complained of unfair dismissal and breach of contract. In his Notice of Appearance, the respondent conceded that the claimant had been employed and had been dismissed, it being stated that the reason for the dismissal was gross misconduct; the complaints of unfair dismissal and breach of contract were denied in their entirety, brief details of alleged misconduct were stated, together with the contention that, at the conclusion of a disciplinary process, the claimant had been dismissed.
THE ISSUES
- In view of the concession on the part of the respondent that the claimant had been employed and had been dismissed, it was contended for gross misconduct, the tribunal had to determine whether or not that was the reason for the dismissal and, if so, whether the dismissal was fair or unfair in all respects. The tribunal also had to deal with the complaint of breach of contract.
THE TRIBUNAL'S FINDINGS
- On foot of the evidence adduced before it, the tribunal made the following findings of fact:-
(a) The respondent was the sole proprietor of a business engaged in the electrical engineering industry, based at Drum Road, Cookstown, County Tyrone. At the material time, the respondent had been continuously in business for about 35 years. The business employed approximately 20 employees. The business activities concerned both workshop-based type operations involving, for instance, the refurbishment and rewinding of electrical motors used in the quarrying industry, and also operations on behalf of customers outside the business premises, as it were, out 'in the field'.
(b) The claimant was a long-standing employee of the respondent, having first commenced in employment with the respondent in 1975. The claimant's work activities were primarily based in the respondent's workshop and these activities included such matters as the repair and testing of electrical generators, compressor equipment, and motors. At the time the employment came to an end, the claimant's gross wage was £423.00 per week, and his average take home pay was £317.47 per week, and he was aged 46 years.
(c) The foregoing matters were not in dispute. However, the tribunal heard conflicting evidence as to the nature of the structure of the respondent's business. The tribunal resolved that conflict by determining that, whilst the respondent was the sole proprietor and was indeed very much 'hands on' in regard to all business activities, including organisation and supervision, he also depended upon certain key employees to organise and to manage and supervise practical day-to-day activities. By way of example, a long-standing employee, Frank McCaffrey, attended to the outside contract work performed away from the business premises. Being, like Mr McCaffrey, an employee of long-standing, the claimant occupied a position in the workshop that saw him being responsible for the allocation and the supervision of work. However, the respondent personally was always on hand and was not at all remote from the day-to-day practical workings of the business operation.
(d) There was no system maintained by the respondent's business for formally recording personnel matters; there were no personnel files maintained on each individual employee; there were no written statements of terms and conditions of employment; there were no disciplinary or grievance codes or procedures; and notably absent was any coherent system for the maintenance of records and the implementation of practices and procedures concerning disciplinary and grievance issues.
(e) The claimant was, by his own admission, a poor timekeeper of long-standing duration. He conceded before the tribunal, with some candour, that his good time keeping record had ceased only a few years after he had commenced employment with the respondent. He forthrightly described himself as a 'horrible' timekeeper. Bearing in mind the absence of any formal recognised disciplinary practices and procedures, it is a fact that the claimant had been 'spoken to', as it was put to the tribunal by the respondent, on a number of occasions by the respondent in regard to his time keeping.
(f) It was here that the tribunal had some difficulty with the terminology used by the respondent. The distinction between, on the one hand, the respondent as an employer 'speaking to' an employee such as the claimant about his poor time keeping, thereby (taking the common usage of the term) implying a mere 'ticking off', was difficult to contrast by the respondent's description only with a situation where (again to use precisely similar terminology to that employed by the respondent in the course of the proceedings) the claimant was 'spoken to' by the respondent in what seems to have been a rather more formal manner and in a disciplinary context. The respondent told the tribunal that he had 'spoken to' the claimant about his time keeping on four or five occasions in the year prior to the dismissal date, which 'speaking to' the tribunal accepts did indeed occur. The best that the tribunal can make of all this is to draw the conclusion that, without it being clearly and unambiguously recognised on either side that formal disciplinary proceedings were in train, on a fairly regular basis and from time to time, the respondent would speak to the claimant probably in an endeavour to improve what was perceived as a long-standing problem regarding punctuality.
(g) However, in contrast to the foregoing, there was indeed a meeting between the respondent and the claimant which took place on 22 October 2003. During the course of that meeting, the respondent produced time sheets to the claimant and gave to the claimant what the respondent described as being 'a verbal warning'. Again, the terminology used by the respondent did not really assist. When the tribunal asked the respondent to clarify precisely what he understood 'a verbal warning' to be, clearly the respondent (as shall be further mentioned below) had little understanding of the subtleties of any disciplinary procedures or processes and the terminology customarily used. However, the tribunal's best understanding of the meeting of 22 October 2003 is that, notwithstanding what might have been the rather forgiving attitude of the respondent to the claimant's 'horrible' time keeping in the past, on this occasion both the respondent and the claimant understood that the respondent was taking a rather significant and serious view of the time keeping issue, and that the discussion was intended to be regarded by the claimant as some type of a cautionary warning and that something further of a disciplinary nature would follow unless the situation improved.
(h) Generally, considering the respondent's evidence in regard to all of this, as mentioned, it was clear to the tribunal that the respondent had little understanding of the subtleties of any disciplinary procedures or processes and the terminology customarily used. Furthermore, the concept of formal categorisation of different degrees of misconduct, which would ordinarily be contained in a customary written disciplinary code and which would or ought to be explicable to and understood by any employee, escaped the respondent's understanding.
(i) This was a work place where there was direct and robust use of industrial language, work place banter, and practical joking or what might be termed 'winding up' of fellow employees. This rather frequently took the form of jokes being played by individuals at the expense of other individuals. These jokes and this 'winding up' often related to accidents or misfortunes that had befallen workers, or occurrences which could be readily exploited for that purpose. Examples of this 'winding up' included cutting out a picture of an employee and placing this on a Christmas tree fairy, with the express purpose of getting a reaction from the employee in question, or another example was the posting up in the work place of a press cutting from a newspaper story with some embarrassing or derogatory content concerning someone unconnected to but with a similar name to one of the respondent's employees. This 'winding up' was a fairly routine occurrence. Common also was the use of what might be best described as robust and expressive strong industrial language. There was no evidence before the tribunal that in respect of any of this 'winding up', practical joking, or use of strong language, the respondent had any clear, consistent, or coherent approach, nor indeed any disciplinary policy or code, however expressed.
(j) There was an incident of physical violence, an assault, being perpetrated by the claimant against a fellow employee, a Mr Connolly. The tribunal is unclear as to when precisely this occurred, but the tribunal accepts that it was not a very long time before the events that primarily concern this tribunal and which led to the claimant being dismissed. The assault took place in the work place and occurred when an argument between the claimant and Mr Connolly became heated. The claimant was endeavouring to exercise some supervisory control over Mr Connolly and told him that he (Connolly) was not permitted to get his hair cut during normal working time. The argument ultimately involved the two men physically confronting each other and the claimant assaulted Mr Connolly. After that had occurred, the claimant was upset and went home early. When he attended work the following day, he reported the matter to the respondent and he fully expected some disciplinary sanction, possibly his dismissal, to follow. However, the respondent took no action whatsoever against the claimant arising out of the occurrence.
(k) In the respondent's workplace disciplinary dismissals were exceptional. Indeed, save for the instant case of the claimant's dismissal, the only evidence before the tribunal of any other such dismissal related to the respondent's earlier dismissal of an employee on grounds of alleged theft and dishonesty. However, that dismissal took place a very considerable number of years before the events that concern this tribunal, perhaps some 18 or 19 years or so.
(l) Returning to this 'winding up', generally most employees gave as good as they got. However, certain employees did display a particular sensitivity. One such employee was Andy Devlin. On or about 22 October 2003 Andy Devlin was involved in a road traffic accident. No personal injury was sustained by him. As a result of that occurrence, posters appeared in the work place. Andy Devlin had himself some time before taken a photograph of a fellow work mate, Henry Devlin, (no relation) together with the Tyrone GAA Footballer, Peter Canavan. Andy Devlin had then brought that photograph into the work place. The claimant removed the photograph from Andy Devlin's possession and he made a number of photocopies of it using the respondent's equipment. The claimant then used these photocopies to prepare what might be best described as 'posters'. This he did by adding manuscript comments to the photocopies. The claimant also prepared on an A4 sized page, without any photograph, a further poster containing comments which referred to Andy Devlin's road traffic accident. The tribunal is not entirely clear when these posters were prepared, nor if they were all prepared at the same time, nor indeed if these were prepared in stages, with added comments written on perhaps as an afterthought. Notwithstanding that, these posters appeared in the work place on 24 October 2003, that is to say two days after Andy Devlin's road traffic accident.
(m) Andy Devlin observed these posters that day and he immediately approached the respondent to complain. He stated to the respondent that there had been posters put up about him and that this had been done by the claimant. He alleged that he was getting a lot of hassle from the claimant and that he could not take any more of it. He stated to the respondent that he was going to have to see a solicitor. He gave the respondent two of the posters which he said he had taken down from the location where they were posted in the work place. Later that day the respondent himself removed a further poster. The tribunal had sight of all three of these posters, details of which are mentioned below.
(n) After receiving the complaint from Andy Devlin, the respondent summonsed the claimant to his office on 28 October 2003. When the claimant attended the office the respondent said to him (alluding to the complaint on the part of Mr Devlin), "This is a case of gross misconduct in the work place, if right, and I want to hear your side of the story". Unfortunately, the tribunal was given very little further evidence about the precise details of the discussion which took place that day between the respondent and the claimant. No written records were kept.
(o) The following day, 29 October 2003, the respondent met with Andy Devlin to discuss the matter. A written record of what was discussed at that meeting was made and the tribunal inspected that. Andy Devlin alleged to the respondent that the claimant put him down at every opportunity and that he was getting hassled all the time in the workshop. In addition to complaining about the posters, Andy Devlin then also mentioned an incident which he stated had happened about six weeks before. He alleged that the claimant had threatened him and that he said that he would rip his head off his shoulders and get him outside work at another time. The respondent asked Andy Devlin for a date when this had occurred and the latter replied that it was written down at home (that date was later confirmed by him to the respondent to be 19 September 2003). Andy Devlin alleged that the more he got upset the more the claimant hassled him.
(p) Regarding the incident which apparently had occurred on 19 September 2003, the tribunal heard conflicting evidence about equipment testing and the health and safety aspects of what had apparently occurred that day. However, the facts are that Andy Devlin was testing equipment in the workshop and the claimant took exception to the amount of noise that was being emitted and asked him to turn it off. An altercation ensued between the two and words were exchanged involving threatening language on the claimant's part, which fact the claimant did not deny. The claimant explained to the tribunal his view to be that Andy Devlin was the type of person where you could not shut him up easily, that he was an excitable person where arguments tended to escalate, where sometimes making a threat was the only way in which to bring the matter to a conclusion. He admitted he had done that on that occasion. Andy Devlin had noted the matter in the firm's duplicate book in the work place a short time afterwards and the name of a witness, Eamon McNally, was mentioned in his note. The incident must have been of a fairly significant nature as far as he was concerned. However, there was no suggestion that Andy Devlin directly brought the matter to the respondent's attention at the time. However the position in respect of the duplicate book and whether or not the respondent might have seen the entry therein written in by Andy Devlin is a matter to which the tribunal will allude below.
(q) Turning now to the content of the 3 posters, the first of these did not contain any photographs but did contain the words in manuscript, "AFTER THE ACCIDENT The policeman said, "don't worry Andy, that happens everyday. it's not your fault. You are the best driver I've ever seen, your quick thinking and cat like instincts saved the day". The police man then gave Andy a bag of jelly babies unwrapped ...sic.) him in a warm blanket and carried him back to the van. CARLSBERG we don't send out policemen, but if we did they would probably be the best policemen in the world". The second poster was a photocopy of Henry Devlin with Peter Canavan, the Tyrone GAA footballer, and upon this were written in "thought bubbles" the words 'I hope when people see this they'll think I played for Tyrone' (the thought bubbles apparently coming from Henry Devlin) and the words continuing, "I wish Andy could see me now. but he has probably stuck his van in a hedge somewhere". There were also additional words suggested as coming via thought bubbles from an unidentified female which were "Wow, look at the size of that! and he's wearing a Tyrone jersey". By way of explanation, the tribunal took it that those words were referring to Henry Devlin who appeared in the photograph to be a relatively corpulent person. The third poster was the same picture of Henry Devlin and Peter Canavan with the words coming from Henry Devlin via a thought bubble 'I wish Andy could see me now, but he has probably stuck his van in a hedge somewhere'. The unidentified female is saying or thinking the same words as in the previous poster.
(r) The respondent issued a letter entitled 'Re Disciplinary Hearing' to the claimant dated 3 November 2003, which letter the tribunal finds was probably received by the claimant on 4 November 2003. It summonsed the claimant to attend a formal disciplinary hearing on 5 November 2003 at 11.00 am in the respondent's office. It was stated that the purpose of this meeting was to consider the following:-
"
(i) Making personal threats on 19/9/03 to a staff member.
(ii) Erecting slogans of a provocative nature regarding staff members.
(iii) Removing personal photographs of a staff member and taking copies without his authority and using firms equipment and resources for this purpose without firms' authority.
(iv) When a staff member had an accident on 22/10/03 more slogans were posted in the workshop regarding the accident – I, J J Loughran had to remove these.
(v) Bad timekeeping.
"
The letter went on to say that the claimant should be aware that there were already outstanding verbal warnings against him and the purpose of the meeting was to deal further with the above list. The letter further referred to, "Company Rules and Disciplinary Procedures", and suggested that the claimant would be entitled to be accompanied by a person of his choice to the meeting.
(s) A disciplinary hearing took place, not on 5 November 2003, but on 6 November 2003. This was attended by the claimant, the respondent and a Mrs Margaret Ryan, an employee of the respondent, as note-taker. The respondent, in turn, put to the claimant the matters itemised in the letter summonsing the claimant to the disciplinary hearing. The claimant's answers were recorded. The tribunal noted the written record of the disciplinary hearing as being an accurate record, which fact was not controverted by the claimant. The claimant was given copies of the posters and of the notes of Andy Devlin's statement concerning his complaints made to the respondent.
(t) In broad terms, the claimant's attitude to the disciplinary meeting and to the individual charges as these were put to him was what might be termed unaccommodating. He was rather dismissive of a number of these charges. He maintained that, in regard to the erecting of the posters, this had been going on for years in the work place and that it was just a joke. He stated that the removal of the photographs and the copying of these, which he admitted doing, was merely used in furtherance of a joke and was not a matter to be taken seriously.
(u) Regarding the other charges levelled against him, firstly, that of making personal threats on 19 September 2003 to a staff member, the claimant confirmed it to be an argument and that the recipient of the conduct alleged against him, Andy Devlin, had insulted him as much as he had insulted Andy Devlin. Secondly, in regard to the bad timekeeping issue, the claimant stated that it was not permissible for the respondent to deal with any timekeeping issues occurring before 22 October 2003 (when he had previously had a meeting with the respondent to discuss his timekeeping). Indeed, when the respondent attempted to place time records in front of the claimant to discuss his timekeeping the claimant said, "No they're rubbish. Throw them in the bin. They're shite – they mean nothing".
(v) By letter dated 7 November 2003 the respondent wrote to the claimant confirming his view to be that the actions in which he had been involved constituted gross misconduct warranting dismissal. The employment was terminated forthwith. The respondent afforded no right of appeal.
(w) To examine what became of the claimant after dismissal, one must refer to the claimant's dealings with Cookstown Enterprise Centre prior to his dismissal. The claimant played golf with a gentleman who was connected with Cookstown Enterprise Centre. On foot of an introduction from that source, the claimant registered to attend a Business Start Programme under the auspices of Cookstown Enterprise Centre. This was due to commence, (following an initial enquiry on the claimant's part on 29 August 2003 and via a lead in assessment meeting on 1 September 2003) with the claimant attending various training modules taking place on various evenings, commencing on 8 October 2003 and finishing on 30 October 2003. The claimant then signed a commercial lease in respect of business premises situated at Cookstown Enterprise Centre, the lease to commence on 1 November 2003. Further, some short time thereafter the claimant signed a fresh lease, again with the same commencement date, 1 November 2003, for different premises at the same Cookstown Enterprise Centre site, but of a slightly smaller size. The tribunal found that the claimant was rather vague in his evidence as to when precisely the lease had been discussed and signed. However, from the evidence the tribunal found that the lease was signed no later than 1 November 2003.
(x) The tribunal did not need to determine any further findings of fact for the purposes of this decision.
THE APPLICABLE LAW
- In respect of the applicable law, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as "the Order") provides at Article 126 of the Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer to show the reason (or, if more than one, the principal reason) for a dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal. The specified reasons set out in Article 130 include capability and conduct of an employee. Article 130(4) of the Order provides that where the employer has shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason) the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.
- In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439 which includes the following:-
(i) An industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal fair.
(ii) In many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another.
(iii) 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 a tribunal makes a finding of unfair dismissal, and an order for re-engagement or re-instatement is inapplicable, a tribunal may make an order for compensation including both a basic award, under Article 153 of the Order, and a compensatory award under Article 157 of the Order, the compensatory award being such amount as the tribunal considers just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer. Any award may be reduced for contributory fault on a claimant's part and for other reasons.
- In regard to the claimant's breach of contract claim, under Article 3 of the Industrial Tribunals (Extension of Jurisdiction) (Northern Ireland) Order 1994, an employee may bring proceedings before an Industrial Tribunal for the recovery of damages or any other sum if the claim is within the jurisdiction of the Industrial Tribunals (Northern Ireland) Order 1996 and one which a Court in Northern Ireland would have jurisdiction to hear and determine, and the claim arises or is outstanding on the termination of the employee's employment
THE TRIBUNAL'S DETERMINATION
- Having applied the relevant principles of law to the findings of fact made by the tribunal, the tribunal here finds a case where the respondent employer, notwithstanding being in business for a rather considerable period of time and employing a not insubstantial workforce of twenty or so employees, took no steps whatsoever to provide a statement of written terms and conditions of employment to each employee containing a disciplinary code and a clear and comprehensible disciplinary and grievance procedure. In the tribunal's view, the respondent fell far short of engaging in any of the proper and well-established procedures such as are designed to ensure that fairness is afforded both to the employee and also to the employer. Specifically, such written terms and conditions of employment might have otherwise provided for a proper and effective mechanism to deal with disciplinary issues such as those that have arisen in this case.
- It is evident to the tribunal that this was a work place in respect of which banter, winding up, practical jokes, and robust use of strong language were, if not the norm, then not uncommon. There is no evidence at all to suggest that the respondent was anything other than a "hands on" employer. The tribunal finds that the respondent was an employer who was quite aware of what went on from time to time in the work place. However, there was no stated policy or procedure for dealing with this banter, winding up, practical jokes, and use of strong language. A material section of the work force were either the perpetrators, or at times also the victims, of this type of conduct. At times this conduct was mere fun and was perpetrated in jest and was regarded as such by all concerned. However, the intent and effect could on occasions move into an area were the limits of what might be objectively regarded as fun were exceeded. Andy Devlin was a person who was somewhat susceptible to being wound up, and from time-to-time that propensity was exploited by the claimant, as he himself put it, to 'get a reaction'.
- The tribunal does not accept the respondent's contention put forward in the course of the hearing that he knew nothing at all about this winding up, practical joking and other such activity that was going on in the work place. To accept that would be to accept something that was entirely at odds with the respondent's repeated claim before the tribunal that he was the proprietor of a business where there was no management structure and where he at all times exercised direct control and management in a personal capacity. The tribunal therefore finds that the respondent had an ambivalent attitude towards all of this.
- Specifically, the tribunal recalls the example given with some candour by the claimant where the claimant admitted that he had used physical violence against a fellow employee. The claimant contended that the respondent was fully aware of this use of violence. The tribunal accepts that. The claimant expected dismissal to follow - yet nothing became of it. His conduct here in admitting that he struck, perpetrated an assault, against a fellow employee would, on the face of it, appear to be conduct of a more serious nature than that which was alleged against him in the course of the disciplinary proceedings that led to his dismissal; yet nothing became of it. This was not a work place where formal disciplinary action was common and dismissals were rare in the extreme.
- The same ambivalence of approach and inconsistency on the respondent's part applies to the issue of the claimant's poor timekeeping. The claimant was a 'horrible' time keeper by his own admission. He had been so for most of his working career with the respondent, and he was a long-serving employee. Again, no robust and consistent approach had been adopted by the respondent in respect of this over the years. The respondent had, at best, 'spoken' to the claimant on a number of occasions over these years. However, the distinction between the respondent's 'speaking to' an employee and what any tribunal might regard as being more formal disciplinary action is far from clear on account of the significant absence of any formality of procedure. There was a 'speaking to' on 22 October 2003 which the tribunal believes approached the most formal dealing with the claimant's timekeeping to date on the part of the respondent. However, there was nothing recorded in writing about that; no verbal warning was formally notified to the claimant, so the tribunal understands, in any unambiguous way so as the claimant might clearly understand precisely where he stood; no right of appeal against any sanction or warning was afforded.
- In this context, the invoking of the disciplinary procedures against the claimant that led to his dismissal occurred. That process commenced with the claimant and the respondent speaking about the matter. Then followed an interview of Andy Devlin by the respondent. At this interview, Andy Devlin alluded to the incident of 19 September 2003 when he alleged that the claimant had made a threat of physical violence towards him. Here, the tribunal had difficulty in understanding how the respondent could have failed to see the entry made in the duplicate book by Mr Devlin. As the tribunal understands it, this duplicate book was used to record time spent on various work jobs; the business billing was based on a time charge. If the respondent was as in touch with the day-to-day running of the business as he claimed, the contents of the duplicate book would have been of considerable interest and concern to him. The records and information from this book would have been conveyed to the office to enable the respondent or his staff to work out billing. The tribunal is quite certain that the respondent must have referred to that book regularly. The tribunal therefore has difficulty in accepting that the respondent, as he claimed, was entirely ignorant of the 19 September 2003 incident involving Andy Devlin and the claimant until he was told about it at the meeting with Andy Devlin on 29 October 2003.
- If one then turns to the investigation conducted by the respondent into all of this, whatever might have been the respondent's state of knowledge about the 19 September 2003 incident, it is clear that there might well have been witnesses to the incident who could have been approached by the claimant and other sources of enquiry or information could have been followed up in order to make an earnest and a sincere endeavour to establish both possible sides to the story and, indeed, an independent third party perspective on things. No such attempt to do so was made by the respondent.
- It is significant that the picture which was photocopied and used to make the posters was not a photograph of Andy Devlin but one of Henry Devlin, a fellow employee. Some of the comments made on the posters appear to the tribunal to be more poking fun at Henry Devlin rather than at Andy Devlin. It might well have been the case that these photocopies were initially prepared by the claimant to make fun of Henry Devlin with the wording about Andy Devlin being added perhaps as an after thought after the road traffic accident had occurred on 22 October 2003. No exploration or account of that possibility was made or taken by the respondent. Whether that would have been material, the tribunal can only speculate, but the tribunal sees here an illustration of an employer who clearly did not apply a fully enquiring mind to the matter.
- Andy Devlin stated to the respondent that he was quite upset at what he alleged to be a campaign of harassment of him on the part of the claimant. The tribunal finds it rather difficult to understand how Andy Devlin could have been genuinely almost 'at the end of his tether' and yet the respondent who was supposed to have had such a 'hands on' approach to his business could have been entirely ignorant of that fact. Again, if the extent of Andy Devlin's alleged distress came as a surprise to the respondent, that ought to have prompted any reasonable employer to have further investigated the entire background to this alleged campaign of harassment. A reasonable employer would have made enquiry as to how long this campaign had subsisted for, and explored if there was any independent evidence to support the allegation. There is no evidence that the respondent made any such enquiry from other employees nor that he conducted any further investigation of that nature in order fully to establish the facts.
- Regarding the categorisation of the disciplinary charges alleged against the claimant, even before the allegation in relation to the 19 September 2003 incident had been included in the list of the disciplinary charges, the respondent said at his first meeting with the claimant about this (on 28 October 2003), 'This is a case of gross misconduct...' (if the charges were to be established). Those words suggest to the tribunal a pre-determination of view on the respondent's part regarding the categorisation of the 'poster' offences, prior to the respondent hearing all of the evidence. Then, upon further discussing with Andy Devlin the additional matter of the 19 September 2003 incident, that together with the timekeeping matters were added, thus producing the full list of charges which faced the claimant at the disciplinary hearing.
- The tribunal accepted without difficulty the claimant's evidence that he regarded himself as inevitably to be dismissed at the conclusion of disciplinary hearing. The reason for his being so certain as to his fate was that he believed that the disciplinary charges had been concocted as a way to get him out of the firm as soon as the respondent had become alerted to the claimant's attendance at the Cookstown Enterprise Centre business start up course. That seems to have been uppermost in the claimant's mind at the time of the disciplinary hearing. His conduct at the hearing was unhelpful. Clearly, he could have done much more to defend his position and to try and present a case in his own favour. However, that does not relieve any employer from a clear and imperative obligation to make a full and proper enquiry and to conduct proceedings in a fair and proper fashion, even when faced with an employee who might not be giving full and enthusiastic co-operation to the disciplinary process. The respondent too readily dealt with and interpreted the claimant's attitude at the hearing as one of full and unqualified admission of guilt and responsibility in respect of every facet and degree of what was being alleged against him.
- The suggestion was made by the claimant to the respondent at the disciplinary hearing that there was a work place culture of 'winding up'. The claimant said that this common practice was behind his putting up of the posters. However, that argument was effectively ignored by the respondent. Either the respondent was aware that this was a commonplace characteristic of his work place and failed to take any proper heed of that fact, or, if he was entirely unaware (which the tribunal does not on balance accept) he ought to have then proceeded to make further and proper enquiry so as to set the offence alleged in its proper context once all of the facts were known. Clearly the respondent followed neither of these two courses.
- Furthermore, the tribunal is not satisfied that the respondent paid due regard to the claimant's long-standing status as an employee, nor did he have due and proper regard to the fact that the claimant's work performance (save for timekeeping) was quite satisfactory and that there was no formal disciplinary record against him of any significance, save for the rather confused and confusing issue of his being spoken to on 22 October 2003 about the timekeeping matter.
- Amongst other things, the tribunal's task in a case such as this is to determine whether or not there was a fair and proper procedure employed by the respondent as far as the investigation and the disciplinary process were concerned, and whether the ultimate decision to dismiss fell within the band of reasonable responses of a reasonable employer. The tribunal has commented upon the failure on the employer's part to implement a proper disciplinary code and proper procedures such as would enable both the employer and the employee to know where they stood in terms of the categorisation of any particular disciplinary offences and to make clear the potential consequences of the commission of any such.
- The tribunal finds that the respondent clearly had an ambivalent attitude to breaches of what would be, in the absence of a stated disciplinary code, certain normal and customarily accepted work place rules relating to good and proper conduct on the part of any employee. The employer's investigation in this case was not adequate. It did not display the application of a fair and an enquiring mind that properly and conscientiously sought out information. If that information had been sought out and weighed in the balance, it might have led to the employer being in a proper position to gauge both the context in which the offences alleged might have been committed and would also have provided material upon which an appropriate and fair sanction might have been based if guilt were to be established.
- The claimant invited the tribunal to find that he was not dismissed for misconduct but for another, unconnected, reason. He claimed that the disciplinary charges had been concocted as a way to get him out of the firm as soon as the respondent had become alerted to the claimant's attendance at the Cookstown Enterprise Centre business start up course. There was no compelling evidence to support that proposition. Looking at all of the facts, the tribunal finds that the reason for the dismissal of the claimant by the respondent was on grounds of the claimant's conduct. Whilst that is a potentially fair reason for dismissal, taking everything into consideration, the tribunal unanimously finds that, on balance and taking into account the factors mentioned above, the decision to dismiss did not fall within the band of reasonable responses of a reasonable employer. Therefore the claimant was unfairly dismissed by the respondent.
- The argument was advanced that the failure to provide a right of appeal itself led to there being an unfair dismissal. However, here the tribunal notes the case of Tiptools -v- Curtis [1973] IRLR 276 in which the House of Lords accepted that in certain circumstances, such as small companies, it might not be practicable to have an appeal beyond the company proprietor or managing director who had taken the decision to dismiss in the first instance. The tribunal does accept the argument advanced on behalf of the respondent that, on balance, it would not have been reasonably practicable for there to have been an appeal against the respondent's decision to dismiss. However, to an extent this point is academic, as the tribunal has found unfair dismissal in any event.
- In terms of compensation for unfair dismissal, the compensatory award under Article 157 of the Order must be such amount as the tribunal considers just and equitable having regard to the loss sustained by the claimant in consequence of a dismissal, insofar as that loss is attributable to action taken by the employer. Notwithstanding endeavours on the part of the claimant to argue that his commitment to being self-employed, which commitment had commenced with his signing up to the Business Start Programme in early September 2003, was not definite, the tribunal notes that the claimant had made what was indeed a very significant commitment by his signature of a commercial lease with a tenancy term which was due to commence on 1 November 2003.
- The claimant had endeavoured to argue that the full significance of that lease had not been explained to him; that he had not taken legal advice and that he was under the impression that he could pull out of the lease by paying merely one month's rent. However, the tribunal finds that explanation implausible. The tribunal is quite certain that Cookstown Enterprise Centre would have carefully explained to any prospective tenant that the lease provisions provided for a term of one year certain and thereafter, thereby effectively committing the claimant to a very considerable potential expenditure indeed if he changed his mind at a very early stage and decided not to proceed with the tenancy after he had signed the contractual commitment thereto.
- As a consequence, the tribunal finds that the claimant was irrevocably committed to his new business, if not before, then by 1 November 2003 and that the business was due to commence with effect from 24 November 2003, as stated in the business plan. Consistent with the considerable expenditure envisaged and what was stated in the business plan, the business was to be a full-time concern.
- In regard to any linkage between the claimant's decision to become self-employed and the disciplinary hearing that was to lead to his dismissal, the irrevocable commitment to the lease was made by the claimant signing this lease, at latest, on 1 November 2003. The respondent's letter dated 3 November 2003 inviting the claimant to the disciplinary hearing was not received by the claimant until probably 4 November 2003. By that date the lease had already been signed and the irrevocable commitment made. The tribunal does not therefore accept the claimant's argument that he had made neither any full nor definite commitment to the new business until he formed the view that he was inevitably going to be dismissed.
- It was argued that a substantial financial loss to the claimant flowed from the unfair dismissal of the claimant by the respondent. The tribunal does not accept that the consequential loss was substantial. As the tribunal has determined that the claimant was irrevocably committed to starting the new business by 1 November 2003, and had made arrangements that he was to start in that business by 24 November 2003 in a full-time capacity, the period of any financial loss sustained as a consequence of the unfair dismissal would not have subsisted beyond 24 November 2003, the business start up date. From that latter date, if not before, the claimant would inevitably have ceased to have been employed by the respondent. It would be stretching credulity to envisage that the claimant would have run a full time business in his own right and still remained in full time employment with the respondent. Thus the tribunal's unanimous view was that the claimant had only sustained two weeks' loss, that being from the date of dismissal until the 24 November 2003.
- Furthermore, the tribunal is entitled to look to the equity of the matter and to examine the question of whether or not the claimant was responsible to any degree in respect of contributory fault such as might entitle the tribunal to reduce any award. Here, tribunal unanimously finds that there was indeed contributory fault on the claimant's part. It is the case that that much was very fairly conceded by the claimant's representative at hearing regarding the issue of the incident that had occurred on 19 September 2003.
- The tribunal did examine the context of the 19 September 2003 incident and was cognisant of the fact that Andy Devlin did not directly report the matter immediately to the respondent and indeed, notwithstanding writing an account of it into the duplicate book, did not make any other formal complaint about the matter. Notwithstanding that, a serious incident did occur on 19 September 2003 and the claimant must bear some degree of responsibility for that. He did issue the threat mentioned and that fact cannot be ignored. This was taken into account by the respondent in the disciplinary hearing and in the decision to dismiss.
- Furthermore, the claimant's approach to the disciplinary hearing in general terms was not very satisfactory. He might well have been of the opinion that he was not going to get a fair hearing, but he did not take adequate steps properly to defend himself, perhaps to require the employer to follow up by further investigation, or indeed to bring forth and to argue, or to require the employer to take into account, factors which might have possibly mitigated the position.
- Considering all of this, the tribunal's unanimous decision is that the claimant did make some contribution by his conduct to the fact of his dismissal and the tribunal determines that any award ought to be reduced, and an appropriate figure for that reduction is 20%. The tribunal determined unanimously that this 20% reduction ought to apply in fairness to both the basic and also to the compensatory award.
- Whilst not formally withdrawn, the claimant's representative did not present any argument or submission concerning the breach of contract claim included in the claimant's Originating Application. In view of that, the tribunal determines that the breach of contract claim is not made out and it is dismissed.
THE TRIBUNAL'S AWARD
- At the time of cessation of employment, the claimant's gross wage was £423.00 per week and his average take home pay was £317.47 per week; he was aged 46 years, and he had been continuously employed for 28 years. After dismissal, the claimant did not claim state benefits. The applicable statutory maximum figure for a week's pay for the basic award at date of termination is £260.00
(a) The Basic Award
Prior to any deduction for contributory fault, the Basic Award is as follows:-
22 ½ x £260.00 = £5,850.00
However, the tribunal found that the claimant, by his own conduct, had contributed to his dismissal by a figure of 20%. In these circumstances, it is permissible to reduce the Basic Award by that percentage if the tribunal considers that it would be just and equitable so to do, which it does in this case.
Thus the adjusted Basic Award (£5,850.00 x 80%) is £4,680.00.
(b) The Compensatory Award
The applicable period of loss for the Compensatory Award, is two weeks. Therefore the award figure, before any deduction for contributory fault, would be two weeks' nett pay as follows:-
(i) £317.47 x 2 weeks = £634.94.
(ii) The compensation (to be included with the Compensatory Award), before any deduction for contributory fault, awarded by the tribunal for loss of Statutory Rights is £250.00.
The total compensation, before any deduction for contributory fault, for the Compensatory Award including loss of Statutory Rights (i) + (ii) = £884.94
The tribunal considered whether or not there should be a reduction to compensation on the basis of the possibility that, if fair procedure had been followed, the claimant would have stood a chance of being dismissed in any event. The tribunal declines to make any reduction on that account.
However, the tribunal unanimously determines that it is just and equitable to reduce the Compensatory Award by the percentage of 20%, on account of the contributory fault on the claimant's part referred to above. Thus the adjusted Compensatory Award (£884.94 x 80%) is £707.95.
The total award for the Basic Award and the Compensatory Award (£4,680.00 + £707.95) is therefore the sum of £5,387.95.
The tribunal Orders the respondent to pay the sum of £5,387.95 to the claimant.
The claimant did not receive Social Security Benefits to which the Employment Protection (Recoupment of Job Seekers and Income Support) Regulations (Northern Ireland) 1996 apply and so there is no recoupment applicable.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 5 July 2005, 16 and 17 August 2005, Belfast.
Date decision recorded in register and issued to parties:
