THE INDUSTRIAL TRIBUNALS

CASE REF:	174/06

	
CLAIMANT:			Caroline Holmes	

RESPONDENT:		L. C. R. Retail Ltd

DECISION 

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and the claim must fail. 

Constitution of Tribunal:

Chairman:		Ms D. A. Elliott		

Members:		Mr J. Carlin
			Mr I. Rosbotham

Appearances:

The claimant appeared and represented herself. 

The respondent was represented by Mr Darren Magill, an employee of the respondent. 	

THE ISSUE

1.	The issue to be determined was whether the claimant had been unfairly dismissed by the respondent on 7 November 2005 contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996.

RELEVANT FACTS

2.	The claimant was employed by the respondent since 28 August 2003.  At the time of her dismissal the claimant was employed as a Deli Supervisor in the respondent’s Centra Store.  The claimant worked a shift from 5.45 am until 2.00 pm.

3.	The claimant was dismissed on 7 November 2005 after a Disciplinary Meeting and was given one weeks notice which she refused to work.  This meeting was conducted by the claimant’s Manager, Mr Darren Magill.  The claimant appealed this decision by letter dated 7 November 2005.  An appeal hearing was held on 11 November 2005.  The claimant was advised by letter dated 15 November 2005 that the decision to dismiss had been affirmed by the manager of another store, Ms Oonagh Sullivan.

4.	The claimant’s disciplinary record reflected ongoing difficulties in respect of poor attendance and time keeping.  The claimant received a written warning on 2 March 2005 in respect of poor time keeping, “that is being sick too often”.  On 28 July 2005, the claimant received a verbal warning in respect of her attendance over the previous five to six weeks having had “more than 5 days sick”.  On 1 September 2005 the claimant received a written warning in respect of sickness and absenteeism which was described as “continually bad after the last warning”.  On 14 October 2005, the claimant received a verbal warning for cursing at staff on the shop floor.  On this date the claimant also received a Final Warning in respect of attendance and time keeping as a result of three separate occasions of either lateness or unauthorised absenteeism within the previous two weeks.  The claimant was advised that during the next six months her conduct would be reviewed.  The claimant did not appeal any of these warnings in accordance with the Company’s Appeal Procedures.

5.	Evidence was given that on 28 October 2005, the claimant did not attend work until 8.30 am, nearly three hours late. The claimant had advised by phone that she would be late due to being on the drink the night before and feeling unwell.  As the Manager, Mr Magill, was not at work the owner of the shop, Mr Leslie Stafford, reminded the claimant that she had a final written warning.  The claimant apologised and was told to sort herself out as this was her last chance.  A note of this conversation was placed on the claimant’s personnel file.  The claimant was not asked to witness this note.  The claimant did not dispute the background in respect of disciplinary matters and acknowledged the extent of her absenteeism and lateness.  The claimant stated to the Tribunal that she accepted that her record was poor and furthermore that she believed that she should have been dismissed on 28 October 2005.  The claimant also stated that she believed that she had been dismissed because she had made a complaint to the police on 4 November 2005. The claimant alleged that she had been assaulted by Mr Stafford on 3 November 2005.

6.	The Tribunal heard evidence in respect of the events of 3 November 2005 which gave rise to the police complaint.  The following matters were not in dispute.  The claimant stated that she complained to her manager of feeling unwell at 1.00 pm.  The claimant asked for permission to go home and stated that the Deli was not 
busy.  Mr Stafford refused this request and asked the claimant to go on to the tills as the store was busy at lunchtime.  The claimant took exception to the intervention of Mr Stafford, as she was addressing Mr Magill her manager.  The claimant swore at Mr Stafford and shouted that she was going home anyway.  The claimant walked away from the office towards the stairs.  Mr Stafford left the office and called after the claimant to indicate that if she walked out she would not have a job to come back to.  The claimant stated in her evidence that as she approached Mr Stafford, he clicked his fingers and either one or two fingers on his right hand caught her on her right cheek.  Mr Stafford gave evidence that the contact had been accidental.  The claimant stated that she had been assaulted.  Mr Stafford responded that she had “walked into it”.  This incident was not witnessed by Mr Magill who remained in the office.  Mr Magill stated that he would not get involved whenever the claimant and Mr Stafford were arguing as there was no point.  It was stated by all the witnesses who gave evidence that the claimant and Mr Stafford could rile each other on occasions which would result in heated exchanges.  The claimant accepted that she would curse on occasions.  In addition there would be ongoing banter and horseplay between the claimant and Mr Stafford.  Mr Magill gave evidence that the video footage prior to the alleged assault showed the claimant waving her hands in the air and storming back towards the area where Mr Stafford was working prior to the physical contact.  The contact between the claimant and Mr Stafford was not recorded, as the location in question was outside of the range of the CCTV camera.  Thereafter the claimant and Mr Stafford discussed the altercation.  Mr Stafford apologised for answering on behalf of Mr Magill, whilst the claimant apologised for swearing.  The Tribunal found as a matter of fact that the claimant’s manager, Mr Magill, took the view in light of these events that the claimant and Mr Stafford had resolved this matter satisfactorily between themselves and that any dispute had been dealt with.  This understanding was supported by the fact that the claimant returned to the store and finished her shift, as usual, at 2.00 pm without addressing the matter further with Mr Magill.

7.	On 4 November 2005 the claimant attended for work at 5.45 am.  At in or about 7.30 am the claimant asked her manager, Mr Magill, for permission to leave the store for up to 20 or 30 minutes.  It was agreed that this was a busy time of the day.  The claimant returned at in or about 9.45 am.  The claimant then advised Mr Magill that she had been to a police station to report the fact that she had been assaulted by Mr Stafford.  The claimant stated that she had been advised not to remain in the store and she had called to collect her things.  Mr Magill stated that he had been trying to contact the claimant by telephone but her mobile phone was switched off.  Mr Magill complained that the claimant made no apology for her absence.  The claimant was allowed to leave the shop and did so just before the police arrived to speak to Mr Stafford who then went to the police station and made a statement.  Mr Magill had already contacted the Centra Human Resource Service for advice on how to proceed in light of the final warning of 14 October 2005.  Mr Magill acted on the advice given (before and after the claimant returned) and forwarded a letter to the claimant advising her of a Disciplinary Meeting at 7.30 am on 7 November 2005.  This letter was handed to the claimant’s partner, a fellow employee, with the request that she deliver same to the claimant.  The claimant complained that the time scale allowed her inadequate time to prepare and she referred the Tribunal to Schedule 1 of the Employment (Northern Ireland) Order 2003.  The Tribunal took 
the view that a letter of such importance should have been hand delivered in light of the short time scale between notification and the meeting.

8.	The claimant attended the disciplinary meeting on Monday 7 November 2005 and at the outset stated that she wanted it noted that she would have liked more time to prepare for the meeting.  Mr Magill stated that company policy and law allowed for 24 hours notice.  At the disciplinary meeting Mr Magill complained that the claimant could not be contacted during her absence from the store on 4 November and that she could have gone to the police on 3 November after work.  The claimant explained that she went to see her solicitor on 3 November and did not know how long it would take to make a statement.  In addition the claimant stated that as her complaint related to her work, she was not going to the police in her own time.  The claimant suggested that the meeting was about her going to the police.  Mr Magill stated that the meeting was about her absence from the work place for over two and a half hours after having received a final warning.  The claimant stated that Mr Stafford should have dealt with her absence on 28 October 2005 by dismissing her at that time due to lateness.  Mr Magill then advised the claimant that she was dismissed with one weeks notice in view of poor time keeping and the fact that she had previously been issued with a final warning.

9.	The claimant appealed against this decision stating in her letter that she believed that she had been dismissed for reporting “this assault to the police”.  At the appeal hearing the claimant again enquired as to why she was not dismissed on 28 October 2005 by Mr Stafford.  The claimant did not raise any additional matters despite having more time to prepare for the hearing.  The claimant stated that she could not use the phone at the police station.  The claimant further stated that she was not prepared to go to the police on her own time as the report related to an incident during working hours.  The claimant was informed by letter dated 15 November 2005 that the decision to dismiss her had been affirmed.  The Tribunal was provided with a copy letter dated 22 February 2006 from the Public Prosecution Service to Mr Stafford advising him that there had been a decision not to prosecute in respect of an incident on 3 November 2005.

10.	The Tribunal found that the physical contact between the claimant and Mr Stafford was accidental.  At the outset the claimant told the Tribunal that she had been hit on the face with the back of Mr Stafford’s hand.  At a later stage the claimant gave evidence in cross-examination and in answer to questions from the panel that she thought it was an accident but that Mr Stafford should not have had his arm raised.  The Tribunal noted that the claimant finished her shift on 3 November, working until 2.00 pm.  The Tribunal found that in light of the fact the claimant and Mr Stafford apologised to each other, Mr Magill believed that the matter had been resolved.  The Tribunal did not accept the claimant’s assertion that she was afraid to return to work her notice period for fear of further assault.  The Tribunal noted that during the disciplinary meeting the claimant put as much emphasis on the lenient manner in which she had been dealt with on 28 October 2005, as on the alleged assault which she reported to the police.  The Tribunal therefore found that the claimant was dismissed due to her unauthorised absence from the store on 4 November 2005. This absence took place after the final warning of 14 October 2005 and resulted in the claimant’s dismissal rather than her complaint to the police. The tribunal formed the view that the previous warnings had given the claimant an opportunity to improve her attendance record.

RELEVANT LAW AND CONCLUSIONS

11.	The issue to be determined by the Tribunal was whether the claimant had been unfairly dismissed by the respondent contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996.  Article 126(1) of the aforesaid Order states that:-

	“An employee has the right not to be unfairly dismissed by his employer”.

	Article 130 of the Order provides that it is for the employer to establish the reason for the dismissal and show that the reason asserted as the principal reason was in fact the principal reason, see Article 130(1), of the Employment Rights (Northern Ireland) Order 1996.

12.	Where the employer relies on the conduct of the employee the Tribunal must decide whether a dismissal was fair or unfair.  The Tribunal must firstly consider whether the employer genuinely believed that the employee was guilty of the misconduct at the date of dismissal and furthermore that there were reasonable grounds for the belief.  The Tribunal must also be satisfied that the employer carried out as much investigation into the matter as was reasonable in all the circumstances.  The decision in British Home Stores -v- Burchell [1980] ICR 303, EAT establishes this three stage test which must be satisfied.  The Tribunal must not substitute its own view in place of the employer.  The dismissal will be unfair if the decision was outside the band of reasonable responses of a reasonable employer in all the circumstances as set out in Post Office -v- Foley [2000] ICR 1283.  The tribunal found that the respondent carried out an investigation that was reasonable in all the circumstances.  The tribunal found, having considered all the evidence before it, that the decision to dismiss the claimant falls within the band of reasonable responses of a reasonable employer in all the circumstances of this matter.

13.	The claimant complained of the limited time allowed to her to prepare for the disciplinary meeting.  The letter was sent out and received on Saturday 5 November in respect of the meeting on 7 November at 7.30 am.  The disciplinary and appeal process conducted by the respondent was in accordance with the procedure of the Centra organisation.  The claimant was afforded less time than would have been ideal, taking into account the weekend.  The claimant relied on Schedule 1 of the Employment (Northern Ireland) Order 2003 where at Part 1, Chapter 1, Step 2 it is stated that the employee should have a reasonable opportunity to consider his response. Despite the short notice the claimant was given an opportunity to challenge the evidence and put forward any alternative explanation.  The Tribunal concludes that there were no significant procedural defects. The claimant was afforded greater preparation time prior to the appeal hearing, however no additional issues were raised.

14.	The Tribunal was satisfied in the circumstances of this case that the decision to dismiss the claimant fell within the range of reasonable responses of a reasonable employer in all the circumstances.

  	 

Chairman:

Date and place of hearing:	26 July 2006, Belfast.	

Date decision recorded in register and issued to parties: