THE INDUSTRIAL TRIBUNALS

CASE REF:	375/05

CLAIMANT:		Robert Ware

RESPONDENT:		Nortel Networks UK Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent. His claim for unfair dismissal is dismissed.
Constitution of Tribunal:
Vice President:		Mrs  Price
Members:			Mr Brewster
				Mr Hanna

Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by MacElhatton & Company, Solicitors.
The respondent was represented by Mr P Bloch, of Engineering Employers’ Federation.

Issues for determination

1.	Under Article 130 of the Employment Rights (Northern Ireland) Order 1996:-

“In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

(a)	the reason (or if more than one the principal reason) for the dismissal; and

(b)	that it is either a reason falling within Paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

Sources of evidence

2.	The tribunal heard evidence from the claimant, Ms Alison Wilson, Mr Pat Masterson, Ms Sinead O’Doherty, Mr Gordon Milligan, Mr Paul Lown, Mr Gary Hamilton and the tribunal was referred to two books of documents including a number of e-mails and records of meetings held.

3.	Facts found from the evidence

A.	The claimant was employed as a Customer Support Engineer from May 1997 until his date of dismissal, which was 19 November 2004.  It was common case that his capability was never an issue and he had a senior role in the Engineers Department.

B.	There had been two groups of engineers working in the respondent company in Customer Support and in August 2003 there was a redundancy situation and the two groups of engineers were placed together in one group called ‘GNPS’ (Global Network Product Support).  Mr Anthony Cunningham became the claimant’s team leader.  His brother, Damien Cunningham, also worked in the same area.  It appears common case that there was some tension between the two original groups of engineers, but in early March 2004 the claimant instituted a harassment complaint against four individuals.  He sent a letter dated 5 May to Mr Davidson in the respondent’s Human Relations Department.  A full investigation was carried out into the allegations made by the claimant.  A final report was issued on 15 June 2004.

C.	The summary report of the investigation found that the complaint of alleged harassment was not upheld.  It also concluded that the allegation of social exclusion based on religious make-up was not upheld nor was the allegation of social exclusion based on technical/organisational background upheld.

D.	That report recommended that no disciplinary action was deemed necessary.  There was to be training for the claimant on some products.  Counselling was to be offered to the claimant and each of the four people whom he had complained about and finally provisions were to be made for the claimant’s return to work.  The terms of this return to work were:-

(a)	It is recommended that Nortel should, if so required by R Ware, seek to identify opportunities for R Ware to work within another group within Nortel insofar as other positions are available that may be a suitable match.

(b)	It is recommended that a series of meetings are scheduled with R Ware on a regular basis with his line manager in support of his return to work.  

Mr Ware was asked to attend a meeting in the company premises on 16 June.  Present at that meeting:-

	Mr Ray McIntyre; and

	Mr Pat Masterson.

The conclusions of the report were read to the claimant, but he was reluctant to accept any of them.  There was a further director, Mr Denis Laliberte, who was on a telephone conference link.  The parties discussed the situation at some length.  The tribunal accepted that the claimant was reluctant to accept the conclusions of the report.  He was asked to consider four options:-

1.	To appeal the harassment investigation finding.

2.	To return to his role at work.

3.	To return to a different role, if one was available.

4.	Consider his future in the company.

He was offered a series of counselling interviews.

E.	The claimant asked for an appeal.  The company was aware that under the Northern Ireland harassment investigation procedure there was not an appeal, but they adopted the UK-wide model which gave the claimant an appeal.  Mr Masterson confirmed an appeal would be arranged for the claimant, and that the appeal would be asked to consider the grounds of appeal with reference to the documentation and the procedures which had been followed.  “In the light of this review the appeal panel may ask for further information and for submissions by the alleged harasser.  Unless the original hearing was seriously flawed procedurally, the appeal should not take the form of a re-trial”.

F.	The claimant wrote to Mr Masterson on 18 June 2004 expressing his dissatisfaction with the meeting on 16 June 2004.  He complained that he found Mr Masterson’s reference to considering his position in the company extremely disturbing and he regarded it as an attempt to terminate his employment.  

G.	The claimant made complaints of harassment against Mr Laliberte and also Mr Masterson as a result of his disquiet with the meeting on 16 June 2004.  He wrote a letter to Mr Laliberte on 21 June 2004 notifying that he wanted an appeal and reiterating that he did not accept the findings of the harassment investigation.  He also stated that all this had resulted in a serious impact upon his health and physical wellbeing.  As a result, Mr Masterson wrote to the claimant saying that he was going to instruct Occupational Health to arrange a meeting with the claimant.  The respondent did not propose to hold the appeal hearing until it was satisfied that it would not be detrimental to the claimant’s health.  The respondent company asked the claimant to be examined by Occupational Health in July 2004.  The claimant wrote to Mr Masterson on 7 August 2004 raising many questions and referring to the appeal hearing which was arranged for 16 August 2004.  Again he referred to an impact on his health.  In a letter of 20 July 2004 the claimant stated that the company was totally unreasonable to ask him to attend Occupational Health and to seek access to his medical records.  This letter set out his views on various aspects of the earlier meeting.  There are a number of letters which have been exhibited in relation to Mr Masterson and the claimant during the period of July/August 2004.

H.	There was an appeal against the harassment finding heard on 28 October 2004.  The claimant had submitted his own appeal documents and in a letter of 10 September 2004 contacted Mr Derek Jones, Employee Relations in Prague, and also Mr Peter Murphy, Vice President in Georgia, USA.  He criticised Mr Masterson, Mr Laliberte and Mr Slobodrian for the e-mails that they had written to him and he made a formal complaint of harassment against the three men named.  He set out what he considered was their treatment of him by virtue of the meeting of 16 June 2004 and subsequent e-mails.  As a result, the harassment investigation appeal was heard on 28 October 2004 by Mr Gary Hamilton and Mr Gary Wilmot.  They heard an appeal against the findings of the original investigating panel and they did not consider the subsequent harassment complaint lodged by the claimant.  There were two formal meetings.  The first was on 30 September 2004 and lasted for a number of hours.  Mr and Mrs Ware were present and Gary Wilmot and Gary Hamilton.  A second hearing was heard on 14 October 2004.  The claimant wished, as he had done in the earlier hearing, to have his personnel record.  It was noted by the company personnel the claimant had been given the opportunity for computer access to any caseload or related information.

I.	The appeal panel understood that the claimant believed there should never have been any consideration of him re-joining the work environment he was complaining about.  The appeal panel found that it was the claimant who was anxious to return to work at the earliest opportunity, and steps had been taken to ensure that in so doing, there were no consequences to the ongoing investigation.  There were a number of other matters put by the claimant to the appeal panel and they considered each and every one of them.  In conclusion, the appeal panel upheld the decisions of the original investigation team.

J.	Sinead O’Doherty of Human Resources wrote to the claimant on 5 November 2004.  She informed him of the outcome of the appeal hearing and that he was now expected to return to work.  On 19 November 2004 the claimant attended a meeting with Gordon Milligan of Human Resources.  At that meeting the claimant objected to his senior manager, Denis Laliberte, being present.  The respondent company stated they wished the claimant to return to work.  He did not wish to do so because he said it was unreasonable and impracticable for him to return to his previous position.  After consideration, the respondent company decided that there had been a complete breakdown of trust and confidence to such an extent that the claimant’s contract of employment should be terminated from 19 November 2004.  The tribunal has seen the record of the meeting on 19 November 2004 and accepts that the claimant was not intending to return to work.

K.	In the meantime the respondent company had written to the claimant by letter dated 8 November 2004 asking him to return to work as soon as possible, but in any event this should be no later than Friday 12 November 2004.  This letter was sent by Sinead O’Doherty from Human Resources and it set out the steps that the company was proposing to take to integrate him into the workplace.  The last paragraph of the letter of 8 November 2004 stated:-

“If you intend to return to work before 12 November you must confirm this the day before so that I can convey this to your manager.”

In fact what happened was that the claimant appeared with his wife on Friday 12 November 2004 and was told that he could not return on that day as his manager had not been notified.  Similarly on 15 November 2004 he appeared with his wife and had not notified the respondent company so that any procedure for return to the workplace could be instigated.  When he was not granted a  re-entry at this stage he left the premises.

L.	The claimant appealed against his dismissal and the grounds on which he appealed were:-

1.	The company has failed to properly investigate the issues leading to my dismissal.

2.	In making its decision to dismiss me the company has failed to give due regard to my health.

He was asked to attend an appeal hearing on Tuesday 7 December 2004 at 1.00 pm.  On 4 December 2004 the claimant contacted Mr Jones in Prague and Mr Murphy in Georgia, USA, to state that he had not got long enough to prepare for an appeal hearing and that it should not be chaired by Mr Slobodrian because he had a harassment complaint still outstanding against him.  He made 15 points in the letter objecting to an appeal hearing being held on 7 December 2004.  A reply was sent to him on 9 December 2004 by Mr Kenny.  He answered each of the 15 points made by the claimant and agreed that the appeal hearing would be postponed and heard on 14 December 2004.

M.	The claimant wrote again on 10 December 2004 reiterating more points including that he did not have enough time for a hearing.  There were a further 14 points included in his letter and the tribunal found that he was continuing to question the role of various people in his hearing and the tenor of his letter was aggressive.  He ended the letter in the following manner:-

“Unless I hear from you to the contrary I will deem it acceptable to you that I attend main reception at the company’s premises for the purpose of the appeal hearing at 1400 on Friday 17th December 2004.”

This was not acceptable to the company and on 23 December 2004, Mr Kenny wrote to the claimant again answering points raised in his letter  The claimant wrote to the company on 7 January 2005 and was concerned about the delay.  He also stated, “your reply although tardy was insufficient.  It fails to adequately deal with many urgent matters of my original correspondence”.  He continued with various paragraphs relating to matters raised in previous correspondence.

N.	There was an  appeal hearing on 11 January 2005.  Mr Paul Lown and Mr Alan Kenny were employees of the respondent company.  The claimant and Mr Michael Mulholland, GMB union representative were also present.  Notes of the appeal hearing were presented to the tribunal.  The claimant taped this meeting without the knowledge of the company representatives.  The claimant also prepared a note of his appeal hearing and matters he wished to be considered.  It was a nine page document.  There were a further 47 pages submitted by the claimant, including records of other conversations which he had taped and transcribed.

O.	The claimant was informed by letter of 3 February 2005 that his appeal had not been successful.  In that letter the respondent company stated the claimant’s employment was being terminated due to a breakdown of trust and confidence.  The writers, Alan Kenny and Paul Lown, stated that they considered that the respondent went to considerable lengths to engage the claimant with Occupational Health, but he was unwilling to meet with them.  They also referred to the claimant’s covert tape recordings of meetings held with the respondent’s personnel without their knowledge and certainly without their consent.  They considered this to be further evidence of the breakdown in trust and confidence between the claimant and the respondent.

Determination of the tribunal from facts found and applicable law

4.	The tribunal is satisfied that the reason for the claimant’s dismissal was some other substantial reason.  It was not a reason related to the capability of the claimant.  It was linked with conduct of the claimant since his complaint of harassment, but in the main part it was due to a breakdown of mutual trust and confidence between employee and employer.

5.	The starting point for the breakdown in trust and confidence between the parties was the harassment complaint brought by the claimant.  From the evidence the tribunal has heard and the facts found, we accept that the claimant could not put his complaints of harassment behind him and the longer the process went on the more antagonistic and single-minded the claimant became.  He felt, since he brought the claim of harassment, he had been mistreated.  He was not prepared to put the respondent company’s findings behind him and to progress back into the workplace.  The tenor of all the correspondence we have seen from the claimant was to overturn the original investigation report by the respondent company, despite the fact that his appeal had been unsuccessful.

6.	It was a matter of great concern to both parties as to how the claimant was to be         re-introduced into the workplace.  However the tribunal having heard the evidence, is satisfied that the claimant was not going to return to his workplace unless he got exactly what he wanted.  The respondent company, for its part, was offering a phased return to work with counselling for all those involved.  The claimant would not accept that.  It was a matter for him to return to work on his terms and not the respondent company’s terms.  Similarly, although he raised the issue of his personal health, he was not prepared to co-operate with Occupational Health.  It was for him to say that he was not well, but he was not prepared to assist the respondent company in determining his state of health.  Another example of his attitude towards the respondent company was when he decided to return to the workplace, despite having received written communication to say that he must contact personnel before coming back into the workplace.  He had not done that, but turned up at the workplace with his wife and was surprised when he was told by personnel that he could not be reintegrated back to work on that day.

7.	The tribunal considered Harvey on Industrial Relations and Employment Law Volume 1 at D1 Paragraph 1914 which states:-

“In a suitable case the employer may rely upon the breakdown in trust and confidence as a substantial reason justifying the dismissal.  However, it must be the act of the employee himself which leads to that breakdown and not the act of the third party.”

8.	We have found that the claimant simply could not accept the findings of the investigation into his harassment claim.  As time progressed his attitude seemed to become more entrenched and he was resistant to the respondent’s efforts to get him back to work.  Whilst we accept that he stated he wished to go back to work, it is obvious to the tribunal that it was only going to be on his terms, which meant not working with either Damien or Alec Cunningham.  The tribunal considered the evidence given by the respondent in relation to alternative positions for the claimant within the company.  Whilst we note that he was an engineer, we accept the respondent company’s evidence that in his role of a Senior Customer Support Engineer there was no alternative position for him.  The respondent company was reducing in size at the time and had already amalgamated two departments into one.  It was not practicable for the claimant to be employed anywhere else.  The respondent did try to speak to the claimant and to encourage him to return to work.  The company accepted medical reports from the claimant and he was off work on full pay for a considerable period of time.

9.	We have noted that the claimant had a long unblemished record of service with the respondent company.  We accept the respondent’s submission that they did want to retain him as an employee.  We accept that they did communicate with him throughout the process and went to lengths to answer his often lengthy e-mails and correspondence.  The problem for the claimant was that he quite simply refused to move on beyond the harassment investigation report.  As he became more upset with the respondent company’s actions, it became apparent to the company that he was not going to be reintegrated into the workforce.  This led to a breakdown of trust and confidence between the respondent company and its employee.  When we stated that conduct played a part in his dismissal, we say that because of his intransigence and inability to move forward with the respondent company’s plans for his reintegration into the workforce.

10.	The cases which come under the heading of some other substantial reason for dismissal are few and far between.  In this case we are satisfied that the employer has shown that it was the principal reason for his dismissal and it was a potentially fair reason.  We are satisfied that the respondent company followed its procedure and even went outside its Northern Ireland procedure by giving the claimant a right of appeal against the original harassment investigation.  He was offered the right to be accompanied by a trade union representative.  We noted that he tape recorded interviews and hearings, without the respondent company’s knowledge.  We accept the respondent’s submission that this also added to the breakdown of trust between the parties.  It would have been appropriate for the claimant to have asked or informed the respondent that he was planning to record the meetings.  

11.	The tribunal does not find that the respondent breached its own procedures.  We accept that the respondent company tried, through various meetings, to get the claimant back to work but having met with various senior managers in the respondent company, the claimant kept going back over the old ground which had to be put to one side if he was to be successfully brought back to work.  Instead the claimant lodged grievances against the senior management.  This did not help them to decide on how to move forward.  The claimant stated that when Mr Masterson made a reference to the claimant’s role within the company he thought that the company was going to dismiss him.  The tribunal do not accept that version of the conversation.  We consider that it was one of four options put to the claimant in relation to the finding of the harassment investigation and in any event he opted for the first idea, which was to appeal the finding.  

12.	Under Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 we have considered the size and administrative resources of this company and are satisfied that the company did as much as it could to try and help the claimant return to work, but because of his actions this proved impossible.  The employer acted reasonably in treating it as a fair reason for dismissal.  The tribunal considered the case of Huggins  v  Micrel Semi Conductor (UK) Limited EAT S009/04.  In all the circumstances of this case a dismissal for some other substantial reason was a fair dismissal, there was no procedural defect and the claimant’s claim is dismissed.

Vice President:

Date and place of hearing:		8 – 10 May 2006, Belfast

Date decision recorded in register and issued to parties: