FAIR EMPLOYMENT TRIBUNAL

CASE REFS:   43/06 FET
403/06

CLAIMANT:		Blaze Dimovski

RESPONDENTS:		1.  Royal Mail Group Plc
		2.  Stephen Fuller

DECISION

The unanimous decision of the Tribunal is that:-

(i)	the claimant was fairly dismissed on the grounds of conduct;

(ii)	he was not unlawfully discriminated against by either respondent on the grounds of religious belief or on racial grounds; and

(iii)	the claims in respect of notice pay, holiday pay and unpaid wages are dismissed.

Constitution of Tribunal:

Chairman:			Mr N Kelly
Members:			Mr J Norney
				Mrs D Adams

Appearances:
The claimant appeared in person and was unrepresented.
The respondents were represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

THE ISSUES

The issues for determination by the Tribunal were:-

(a)	Whether the claimant was unfairly dismissed by the first-named respondent contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996.

(b)	Whether in dismissing the claimant or in the way in which the claimant was dismissed, the first or second-named respondent unlawfully discriminated against the claimant on the ground of either religious belief, or on racial grounds contrary to either the Fair Employment (Northern Ireland) Order 1998 or the Race Relations (Northern Ireland) Order 1997.

(c)	Whether the claimant was entitled to notice pay, holiday pay or unpaid wages.

RELEVANT FACTS

1.	The claimant is a Macedonian and is an Orthodox Christian.

2.	He was employed by the first-named respondent (hereinafter referred to as ‘Royal Mail’) in their Mallusk centre.  His duties were mainly as the driver of a 7.5 tonne truck on the night shift.  Part of those duties entailed delivering mail from Mallusk to Coleraine in the early hours of the morning.

3.	The claimant was appointed on 10 March 2003 and was summarily dismissed on 26 January 2006.  

4.	The details of the incident which led to the claimant’s dismissal were never in substantial dispute at any stage of the disciplinary process or before this Tribunal.  On 6 January 2006 at approximately 4.50 am the claimant left the Mallusk centre driving a 7.5 tonne Royal Mail truck en route to Coleraine carrying three tonnes of mail.  He had reached the slip road leading from Sandyknowes Roundabout to the main northbound carriageway of the M2 Motorway.  He received a telephone call from Mr Kieran Kelly who was acting as his line manager that night.  He pulled over onto the hard shoulder of the slip road to answer the telephone call.

5.	Mr Kelly told him that some post which should have been included in the load for Coleraine had been left behind in the centre.  He asked the claimant if it was possible for him to return and pick up that post.  Mr Kelly also asked the claimant if he was on the motorway yet and the claimant replied, “Not quite”.  Mr Kelly gave evidence to the internal disciplinary hearing and to this Tribunal that he went on to say to the claimant that if he was on the motorway to continue on and come off at Templepatrick.  The claimant denied this further instruction was ever given.  The Tribunal does not regard this conflict of evidence as important because what the claimant did next has never been in dispute.  Starting from his position near the end of the northbound on-slip onto the M2 Motorway he performed a three-point turn.  He first drove forwards and to the right onto the main carriageway of the motorway, then reversed to his left before driving forwards again to his right ending up facing the wrong way down the on-slip between Sandyknowes Roundabout and the M2 carriageway.  Before the claimant could drive back down the on-slip (in the wrong direction) he was stopped by an unmarked police car.  

6.	At about this time, Mr Kieran Kelly received a telephone call from another Royal Mail employee who told him that an unmarked police car had stopped a Royal Mail truck which seemed to have been making a turn on the M2 shortly after Sandyknowes Roundabout and which was facing the wrong way on the on-slip.  Shortly thereafter, at approximately 5.00 am, the claimant phoned Kieran Kelly to tell him that he had been stopped by the police.  

7.	Mr Kieran Kelly attended the scene in a small van with the mail which had been left behind in the centre.  The police cautioned the claimant and told him that they would be reporting the incident for possible prosecution.  No prosecution in fact ensued.  The police arranged for the traffic to be stopped a mile further down the motorway towards Belfast so that the claimant could reverse his manoeuvre and turn his vehicle back onto the motorway.  Having done that he proceeded towards Coleraine.  He was followed by Mr Kieran Kelly and at a safe location they both stopped and the additional mail was transferred to the claimant’s vehicle.  The claimant drove on to Coleraine and completed his run.  

8.	At approximately 6.45 am on the same date, ie on 6 January 2006, Mr Kieran Kelly telephoned his line manager, Mr Stephen Fuller, and told him of the incident.  Mr Fuller told Mr Kelly to get a statement from the claimant.  The Tribunal notes that the respondents’ Conduct Code permits a manager to seek a more detailed explanation from an employee where it appears that a disciplinary issue might have arisen.  That Code states that a manager in those circumstances may conduct a fact-finding interview, but there is nothing in that Code which precludes a manager from asking an employee to provide a statement.  Either step would be taken before a decision is taken to move to either informal or formal disciplinary proceedings.  The Tribunal does not see how an employer could decide whether or not disciplinary proceedings were warranted without first seeking such clarification and therefore sees nothing untoward in this request for a statement.  The claimant was after all the only Royal Mail employee who knew what had happened.  The taking of the statement was not a step in the formal disciplinary procedure which had not yet started.  

9.	Mr Kieran Kelly typed a brief statement at the claimant’s dictation and the claimant signed it.  The claimant accepted in evidence and during the internal disciplinary process and appeal process that the statement was factually accurate.  In that statement he recorded receiving the telephone call from Mr Kieran Kelly telling him that mail had been left behind and he continued, “bearing in mind that the exit is five miles down the road towards Templepatrick and then I had to return back on the M2 to the MC (Mallusk centre) I made a sudden decision to turn the van back on the slip road and with an intention to access the Sandyknowes Roundabout and the MC within five minutes.  The decision was taken solely to facilitate a speedy transfer of the mail to Coleraine”.  

10.	Mr Fuller asked to meet the claimant for a chat on 9 January 2006.  The claimant accepted that this was a ‘friendly’ meeting at which Mr Fuller asked the claimant if he was alright and if he was fit to continue his driving duties.  Mr Bobby Weatherall, the claimant’s trade union representative, knew the meeting was to take place but was unable to attend.  Neither he nor the claimant objected to the meeting or sought a delay to enable representation.  No further information was obtained by Mr Fuller during this meeting and it appears to have had no relevance to the disciplinary proceedings which followed subsequently.

11.	The claimant alleged that at this meeting on 9 January 2006, Mr Fuller had told him that he would not be dismissed as a result of the incident on 6 January 2006.  He further alleged that Mr Fuller had separately given this assurance to Mr Weatherall.  Mr Weatherall was not available to give evidence on behalf of the claimant and was on sick leave from Royal Mail at the time of the Tribunal hearing.  The claimant declined on several occasions an invitation from the Tribunal to ask for the case to be re-listed for one day to see if Mr Weatherall could attend.  Mr Fuller denied giving any such assurance to either the claimant or to Mr Weatherall.  He stated to the internal appeal hearing and to this Tribunal that he had told the claimant that he would do his best to keep his position and that he hoped it would not come to dismissal.  The disciplinary charge letter which issued subsequently on 13 January 2006 to the claimant clearly stated that dismissal was an option.  The contradiction between that clear statement and the alleged assurance was not raised by either the claimant or Mr Weatherall at the disciplinary interview on 17 January 2006.  The claimant stated in response to a question by the Tribunal that that contradiction had not been raised during this interview because both he and Mr Weatherall were sure he would keep his job.  

12.	If a clear assurance had been given in the terms suggested by the claimant, the Tribunal is sure that it would have been raised in the disciplinary interview.  Since it was not, the Tribunal concludes, on the balance of probabilities, that the version of events put forward by Mr Fuller is correct.  However the Tribunal is concerned that a manager, who having received the claimant’s statement which had been completed on 7 January 2006, and who therefore would have known he was likely to have to determine a disciplinary charge, would have been so foolish as to say what he did say.  His statement was open to misinterpretation as a promise to keep the option of dismissal ‘off the table’.  However the Tribunal does not accept that the claimant was relying on any such misinterpretation to the extent alleged by the claimant.  The claimant was unable to point to any step which his alleged reliance on Mr Fuller’s assurance prevented or deterred him from taking at the interview on 17 January 2006, other than to tell the Tribunal that he would have asked for an     up-to-date personal copy of the Code of Conduct.  The claimant’s own evidence was that he did in fact ask for such a copy during that interview but Mr Weatherall ‘put his hand on my leg and told me not to talk too much’.  Since Mr Weatherall, as a full-time official in the CWU, would have had access to this document and would therefore have been able to assist the claimant in this regard, his actions are not surprising.  Furthermore, Mr Weatherall clearly acknowledged during the course of the interview on 17 January 2006 that the charge put to the claimant was a serious charge and that dismissal was a possible outcome.  The Tribunal is therefore satisfied that neither the claimant or his representative were under any illusion on 17 January 2006 that dismissal had been ruled out as an option.  

13.	The claimant further alleged that since the disciplinary charge letter referred to misconduct and not gross misconduct, he was materially misled and hampered in his defence.  However the record of the interview of 17 January 2006, which was signed by the claimant after he had suggested amendments, records that Mr Weatherall specifically argued that the incident was not gross misconduct.  The Tribunal concludes that the claimant and his representative were well aware on 17 January 2006 that a finding of gross misconduct and summary dismissal were possible conclusions to the disciplinary process and concludes that they had a full opportunity, which they took, to address that issue during the disciplinary interview.

14.	Mr Fuller decided to dismiss the claimant summarily for gross misconduct and this decision was given to the claimant in person on 26 January 2006.  

15.	The claimant lodged an appeal on 27 January 2006.  The claimant alleged that he had been unfairly dismissed and that he had been discriminated against on grounds of race.  He did not dispute that he had performed a three-point turn at the end of the northbound on-slip between Sandyknowes Roundabout and the M2 and that he had driven onto the main carriageway of the M2 in so doing.  He did not deny that he faced the wrong way down the slip road with the intention of driving back to the Sandyknowes Roundabout before being stopped by the police.  In a separate undated letter, sent about this time to his employer, he described this act as ‘wrong and dangerous’. 

16.	The appeal hearing took place on 13 January 2006.  The appeal was heard by Mr Graham Nielsen, a Royal Mail Appeals Manager based in Scotland.  The claimant was represented by Mr Norrie Watson, the Divisional CWU Representative for Scotland and Ireland.  The claimant accepted that he was given a full opportunity to state his case during this appeal hearing.

17.	The appeal was a complete re-hearing of the evidence.  After the appeal hearing, Mr Nielson asked Mr Fuller and Mr Kelly to clarify issues raised by the claimant.  Their written responses were passed to the claimant for comment.  After receiving those comments, Mr Nielson upheld the dismissal.  

DECISION

18.	The first issue for the Tribunal to determine in relation to the claim for unfair dismissal is the reason for the dismissal and whether that reason falls within Article 130(2) of the Employment Rights (Northern Ireland) Order 1996.  The Tribunal is satisfied having hearing the evidence that the reason for the claimant’s dismissal was a reason relating to the conduct of the claimant and that it therefore falls within that paragraph.  The claimant alleged that the real reason was his religious belief and/or race and national origins.  This decision will deal with that allegation   separately.

19.	As the Employment Appeal Tribunal determined in Iceland Frozen Foods Limited  v  Jones [1982] IRLR 439, the function of an industrial tribunal 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 the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.  

20.	The Court of Appeal in Andrew James Taylor  v  OCS Group Limited [2006] EWCA Civ 702 stated, “The use of the words ‘re-hearing’ and ‘review’ albeit only intended as an illustration, does create a risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal was a re-hearing or a mere review.  This error is avoided if Employment Tribunals realise their task is to apply the statutory test.  In doing that they should consider the fairness of the whole disciplinary process”.  The court went on to say, “In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising.  We are not; indeed it is trite law that [GB equivalent legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury.  That means that they should consider the procedural issues together with the reason for the dismissal as they have found it to be.  The two impact on each other and the Employment Tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss”.

21.	Article 130 of the 1996 Order provides that the determination of the question whether the dismissal is fair or unfair depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and the substantive merits of the case.

22.	Article 130A provides that a failure on the part of the employer to fulfil the requirements of the statutory dismissal and disciplinary procedures will render a dismissal automatically unfair.  Subject to that, a failure by an employer to follow a procedure in relation to a dismissal shall not be regarded as by itself making an employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.  

23.	The facts of the relevant incident were never in substantial dispute.  The claimant was a professional driver of a 7.5 tonne truck.  He performed a manoeuvre which was extremely reckless and which had potentially lethal consequences.  If he had not been stopped by the police he would have proceeded the wrong way down the northbound on-slip.  Traffic entering that on-slip from the roundabout do so on a left hand bend with their view of the on-slip obscured until they are some distance up the on-slip.  The last thing the driver of any such vehicle would be expecting to meet on that on-slip would be a 7.5 tonne truck coming towards them in the wrong direction.  The claimant, during cross-examination, when describing the appearance of the police car, stated, “A police car arrived suddenly – there isn’t a clear view”.  “The vehicle appeared out of nowhere.”  The Tribunal concludes that the risk posed of an accident involving traffic approaching the scene either on the main carriageway of the M2 or on the on-slip was, even having regard to the time of day, significant.  The Tribunal, more importantly, concludes that Mr Fuller was entitled to take the view, as he told the Tribunal, that the result could have been ‘catastrophic’.  He, and Mr Nielsen, were entitled to regard the claimant’s action as gross misconduct justifying summary dismissal.  If this were not so, it would be difficult for this Tribunal to comprehend what type of conduct could constitute gross misconduct for a professional driver.  

24.	The claimant argued that other employees had not been dismissed in similar circumstances.  He referred to:-

(a)	A driver who had reversed into a shed without waiting for a roller door to retract completely.  The door had been damaged.

(b)	A driver who had been given a ‘suspended dismissal’ for falsifying a document.
(c)	A driver unloading mail from an aircraft who damaged that aircraft.

(d)	A driver who left his key in his van when he crossed to attend to a mailbox.  The van was stolen.

(e)	A driver who travelled for a distance with his tail lift down.

The Employment Appeal Tribunal in Hadjioannou  v  Coral Casinos Limited [1981] IRLR 352 held that arguments put on the basis of disparity were of limited significance when determining the fairness of a dismissal.  Evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of an employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.  Waterhouse J stated:-

“The emphasis in [equivalent GB legislation] is upon the particular circumstances of the individual employee’s case.  It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb or codes for dealing with industrial relations problems and in particular, issues arising when dismissal is being considered.  It is of the highest importance that flexibility should be retained and we hope that nothing we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate.  One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.”

That approach was expressly approved by the Court of Appeal in Paul v  East Surrey District Health Authority [1995] IRLR 305.  See also Levenes Solicitors  v  Dalley UK EAT/0330/06/DA.

None of the incidents put forward by the claimant as comparators can be said to involve truly parallel circumstances.  One involved alleged falsification of documents and the rest, at their height, involved matters of negligence.  None of them, in the opinion of this Tribunal approached the degree of cavalier recklessness displayed by the claimant on 6 January 2006.  Mr Fuller and Mr Nielson stated that they were unaware of any Royal Mail driver conducting a similar manoeuvre.  In any event, the Tribunal sees no substance in the argument that, having regard to the cases identified by the claimant, summary dismissal was not within the band of reasonable responses open to Royal Mail in the present case.  

25.	The claimant raised several matters which in the opinion of the Tribunal were minor matters of detail but which he argued showed that disciplinary and appeal processes were flawed.  For example, he alleged that the statement which was typed by Mr Kelly was taken early on the morning of 7 January 2006 rather than late in the evening of 6 January 2006 during the same night shift.  Since the claimant despite an express invitation from the Tribunal did not disagree with any issue contained within that statement, it is difficult to understand the significance which the claimant attached to this and other minor issues arising in the disciplinary and appeal processes.  The Tribunal concludes that there were no significant defects in procedure.  The requirements of the statutory disciplinary and dismissal procedures were met.  The claimant and his representative knew precisely what was being alleged by the disciplinary charge and knew both at the disciplinary interview and at the appeal hearing that a finding of gross misconduct and a penalty of summary dismissal were possible conclusions.  The Tribunal concludes that the dismissal on the ground of conduct was having regard to equity and the substantive merits of the case within the band of reasonable responses open to the employer and was therefore a fair dismissal.

26.	No evidence was presented or submissions made in respect of claims for unpaid wages or holiday pay and those claims are therefore dismissed.  The Tribunal has concluded that the first-named respondent was entitled to dismiss the claimant summarily and the claim for notice pay is also therefore dismissed.  

27.	The claimant also alleges that he was unlawfully discriminated against contrary to the Fair Employment (Northern Ireland) Order 1998 and the Race Relations (Northern Ireland) Order 1997.  The statutory changes in relation to the burden of proof implemented by Article 52A of the 1997 Order and Article 38A of the 1998 Order require the Tribunal to adopt a two stage approach.  In McDonagh & Others  v  Royal Hotel [2007] NICA 3, the Northern Ireland Court of Appeal described the first stage of that process in the following terms:-

“For the purposes of the present case the first question that the judge should have articulated was, ‘Have the plaintiffs proved on the balance of probabilities facts which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?’.”

The guidance issued by the Court of Appeal in Igen  v  Wong [2005] EWCA 142 has been affirmed and the subject of further comment by the Court in Madarassy  v  Nomura International PLC [2007] EWCA Civ 33.  In that latter case, the Court stated at Paragraph 54:-

“I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her.”

	At Paragraph 56 the Court stated:-

“The Court in Igen  v  Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the Tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which the Tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

	At Paragraph 57 the Court continued:-

“‘Could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegations of sex discrimination such as evidence of the difference in status, the difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting a complaint.”

The burden of proof in relation to the first stage rests upon the claimant.  He does not have to go so far as to establish facts upon which a Tribunal would draw an inference of unlawful discrimination, having disregarded for the time being any explanation put forward by the employer.  On the other hand, it is not sufficient for the claimant to simply establish a difference in status and a difference in treatment.  The tipping point at which the burden of proof passes from the claimant to the respondent lies somewhere between those two extremes, ie at the point where a reasonable Tribunal could properly draw an inference of unlawful discrimination having disregarded for the time being any defence put forward by the respondent.  

In the present case the Tribunal concludes that the claimant has failed to discharge the burden placed upon him in relation to the first stage of the process under both the 1998 Order and the 1997 Order.  The circumstances in which the claimant was disciplined and dismissed are not sufficiently similar to the circumstances described by the claimant in relation to each of his chosen comparators.  There is no evidence upon which a reasonable Tribunal could draw an inference that the claimant has been treated less favourably on the grounds of religious belief, or on racial grounds than any of these comparators or indeed a hypothetical comparator.  The claims of unlawful discrimination are therefore dismissed.

Chairman:

Date and place of hearing:	16 – 18 April 2007, Belfast

Date decision recorded in register and issued to parties: