THE INDUSTRIAL TRIBUNALS

CASE REF:	645/06

CLAIMANT:			Ciaran Elliott

RESPONDENT:		Montupet (UK) Limited

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:
Chairman:		Ms Elliott
Members:		Mr J McAuley
			Mr F Dodds

Appearances:
The claimant was represented by Mr Gerry Daly of Francis Hanna & Co, Solicitors.
The respondent was represented by Mr Peter Bloch of the Engineering Employers Federation of Northern Ireland.

Reasons

1.	Sources of Evidence

	The tribunal heard evidence on behalf of the claimant from the claimant himself.  The tribunal heard evidence on behalf of the respondent from Mr Mallon, Mr Cummings and Mrs McGuckin, the Personnel Manager.  The tribunal was provided with a bundle of agreed documents by the respondent and the claim form and Response.

2.	The claim and the defence

	The claimant claimed that he had been unfairly dismissed.  The respondent claimed that the claimant had been fairly dismissed for misconduct, after a proper investigation, disciplinary hearing and appeal hearing carried out in accordance with the respondent’s own disciplinary procedure. 	

3.	The Issue

	The issue to be determined by the tribunal is whether the claimant was unfairly dismissed by the respondent.  The respondent summarily dismissed the claimant for refusing a reasonable request and being insubordinate to a supervisor which amounted to gross misconduct.  The issue for the tribunal was whether the respondent had acted reasonably in treating the claimant’s conduct as a sufficient reason for dismissal and whether dismissal for that reason was fair.

4.	Findings of fact

4.1	The claimant was employed by the respondent company for nine years as a production operative from 17 January 1997 until his dismissal on 10 March 2006.

4.2	The respondent operates a continental pattern over a 24 hour period on a seven day week.  The company places great importance on flexibility within the workforce whereby employees are often moved from one department to another depending on production or customer demands. 

4.3	On Thursday 16 February 2006 the claimant was asked by Tommy Mallon, a supervisor, to go and paint an office area.  The claimant was to assist a colleague Tommy Davis who had started the job using a paintbrush.  The claimant complained of a strong smell of paint and as a result Mr Mallon tried to find the key to unlock a door whilst Mr Davis was sent to get fans.  The claimant suggested getting rollers and buckets from the Sand Re-Gen Department to speed up the job.  The painting stopped at this time and the claimant was instructed by Mr Mallon to brush up in the area.

4.4	Mr Mallon then returned and told the claimant that he was to go and work in Puma where he had been working in on the previous days.  Mr Davis was to continue the painting job on his own.  Mr Mallon asked the claimant to leave the rollers and buckets so that Mr Davis could use them.  The claimant replied that the rollers did not belong to that Department and he was putting them back where he got them.  At the Disciplinary Hearing the claimant acknowledged that there was a second request to which he “walked on by”.  The respondent’s evidence was that he asked the claimant to leave the equipment on up to four occasions, in front of other staff.  The claimant then proceeded to lock the equipment in the locker where it was usually stored. 

4.5.	Mr Mallon sought advice from his manager, Marcus Cummings, about how to handle the situation.  Mr Mallon then asked the claimant to step into a back office with him.  The claimant requested a union representative to accompany him.  

	Mr Cummings sought advice from Human Resources in respect of Mr Mallon’s difficulties.  Mr Cummings was advised to conduct an investigation in respect of the matter.  Mr Mallon provided a written statement.  Mr Cummings conducted a fact finding interview with the claimant, Mr Davis, Jackie Holmes and Josie McCann.

4.6	The claimant was notified of a Disciplinary Hearing by letter dated 16 February 2006.  The hearing was scheduled for 20 February 2006 and the panel consisted of Mr Cummings and Elaine McGibbon, Senior Personnel Officer.  The claimant was advised that the purpose of the hearing was to put to him the allegation that he refused a reasonable request and was insubordinate to a supervisor.  The letter of 16 February 2006 advised the claimant that such behaviour may be considered as gross misconduct and the possible sanction could be dismissal. The hearing took place on that date and the claimant was represented by his shop steward.  After this hearing an investigation meeting took place with Eddie Donaldson on 25 February 2006 to clarify the claimant’s assertion that he had been instructed by Mr Donaldson to lock the rollers up at all times.  Mr Donaldson confirmed that he had given the claimant responsibility for the paint equipment and told him to look after it by washing the rollers and putting them away when not in use.

	The Disciplinary Hearing reconvened on 10 March 2006 when the claimant was advised of the decision by the panel that he had refused a reasonable request in that he did not leave the painting equipment as requested.  The panel also concluded that the claimant had been insubordinate.  The panel considered that the claimant’s conduct amounted to gross misconduct and decided that he should be summarily dismissed as of 10 March 2006.  The respondent’s employee handbook includes refusal to carry out a reasonable instruction as an example of gross misconduct at 1.2.8.  The list is described as not exhaustive.  

	The claimant appealed this decision and his appeal was heard by Therese McGuckin, Personnel Manager and Jim Burke, the Plant Manager on 23 March 2006.  The decision to dismiss was upheld by the Appeal Panel.  The claimant was advised by letter dated 10 April 2006.

4.7	In his evidence to the tribunal the claimant stated that he did not know that Mr Mallon was his supervisor as his supervisor was Mr Donaldson, the Sand Re-Gen technician.  The claimant gave evidence that the equipment belonged to the staff in Sand Re-Gen and that he was putting them back where he got them, as he had been told by Mr Donaldson to look after them.  At the investigation stage and in his evidence the claimant stated that he only heard Mr Mallon ask him to leave the equipment on one occasion.  At the Disciplinary Hearing the claimant stated that he replied on the first occasion and “walked on by” on the second before locking up the equipment.  Mr Mallon gave evidence that the claimant had to walk around him to leave the office when he was being asked to leave the equipment for Mr Davis.

	The claimant stated in his claim form that he did not intend to offend Mr Mallon.   In his evidence the claimant stated that he felt he was being made “an idiot of” when he was told to use a small paintbrush.  In addition the claimant complained that when Mr Mallon told him to go to Puma he had a smile on his face and stood over him as if he did not know where Puma was.  The Department was 100 yards away.  These matters occurred prior to the request to leave the rollers.  During the investigation the claimant referred to Mr Mallon as an imbecile and a big child.  The claimant also raised a history of bullying in his youth and Mr Mallon showing his fist to the claimant when he crossed an unofficial picket line.  The claimant and Mr Mallon had never worked together prior to 16 February 2006.  The respondent took the view that the incidents raised by the claimant had occurred a long time ago.  The claimant stated that he did not subsequently apologise for his actions as he did not believe that he had done anything wrong.  The tribunal concluded, having heard the evidence of both parties, that Mr Mallon asked the claimant to leave the equipment on a number of occasions and the claimant heard him on at least two occasions.       

4.8	The claimant stated that he had never been told that Mr Mallon was his supervisor.  The claimant’s evidence was that he took instruction on a daily basis from Mr Donaldson.  It was accepted that Mr Donaldson would frequently instruct the claimant on a day-to-day basis.  In light of the flexible working system within the respondent company, the claimant would also be answerable to whoever was the supervisor in any department in which he was required to work.   Mr Donaldson had not been at work on 16 February or for a few days previously, therefore the claimant had been taking instruction from others in his absence.  The claimant had been working in Puma in previous days and had therefore been under the direction of another supervisor.  On 16 February the claimant had responded to several previous instructions from Mr Mallon, going to the office, brushing up and then preparing to go to Puma.  The claimant stated in his claim form that he did not want to get into trouble if Mr Davis did not put the equipment away or did not clean it.  Mr Mallon’s evidence was that he told the claimant Mr Davis would clean them when he finished with them.  The claimant’s case was that he was simply abiding by the prior instruction from his supervisor Mr Donaldson to lock up the rollers when not in use.  The claimant’s case was therefore that he did not ignore a reasonable instruction.  In that he was placed in a difficult position in light of two conflicting instructions from two supervisors and the claimant did not want to disobey his own supervisor.  The respondent’s case was that the claimant had been told to put the rollers away when not in use and it was intended that Mr Davis would use them.  The respondent’s evidence was that all the claimant had to do was make Mr Mallon aware of what he had been told and it would have then been his responsibility to sort the matter out.  The tribunal having heard the evidence formed the view that the claimant realised on the day in question that Mr Mallon was his supervisor and for that reason he had followed his instruction earlier in the day.  The claimant stated that he did not provide an explanation to Mr Mallon as he wanted to get to Puma more quickly as he did not want to be in his company.  The claimant also stated that he would have taken the same action regardless of the supervisor involved.

4.9	The claimant made the following complaints in respect of the disciplinary process:

(a)	The investigation conducted by Mr Cummings did not involve interviewing Mr Mallon but relied on a written statement provided by him.

(b)	The investigation was conducted by Mr Cummings who also sat on the disciplinary panel and he was therefore adjudicating in respect of his own investigation which concluded there was a prima facie case to answer.  

(c)	There was a lack of notes of certain meetings with no proper explanation.  

The respondent did not accept these criticisms. The test is one of reasonableness on the part of the respondent, not what the tribunal might have done.  The tribunal formed the view that the investigation was fair and that the Disciplinary Hearing gave the claimant a full hearing.  The tribunal considered the evidence and took into account the Labour Relations Agency Code of Practice.  The tribunal took the view that whilst it would be preferable to have a separate manager conduct the investigation, the roles of prosecutor and judge are not strictly analogous.  

(d)	The claimant criticised the appeal hearing as a sham.  It was suggested that insufficient regard was given to other cases where leniency was shown to ensure consistency especially in light of the claimant’s clear disciplinary record.  Mrs McGuckin gave evidence that because of her experience she was aware of the kind of matters that the respondent would show leniency for and that this would ensure consistency.  Mrs McGuckin suggested that this would have arisen where there was something which could change the panel’s view of what had happened.  Mrs McGuckin also remarked on the fact that the claimant had shown no remorse and the same situation could therefore arise again in the future.  Mrs McGuckin stated that the panel looked at everything in its entirety and the claimant’s clean disciplinary record would be just one of the factors.  The tribunal formed the view that the claimant was given a full hearing on both occasions.

5.	Law and conclusions

	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 states:

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

	Article 130(1) of the 1996 Order requires that:

		“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.

	The tribunal having been satisfied that the respondent had discharged the two burdens under Article 130(1) and (2), Article 130(4) requires that:-

		“the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) - 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and

(b)	shall be treated in accordance with equity and the substantial merits of the case.

	In this case the claimant was dismissed for a potentially fair reason.   

	The tribunal is required under Article 130 to ascertain whether the respondent acted reasonably.  The tribunal is not entitled to substitute the conclusions it would have reached for those of the employer.

	The tribunal found the case of British Home Stores –v- Burchell [1978] IRLR 379 to be of assistance where it states:-

		“In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair … tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question …. entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  This involves three elements.  First of all, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and that the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation as was reasonable in all the circumstances of the case.”

	In J Sainsbury plc –v- Hitt [2003] IRLR 23, this approach was approved by the English Court of Appeal as best reflecting the approach to be taken by tribunals in assessing misconduct cases.  

	The tribunal concluded that the respondent had a firm belief that the claimant refused a reasonable request in that he did not leave the painting equipment as requested and was insubordinate to a supervisor.  This fell within the definition of gross misconduct in the respondent’s disciplinary code. 

	The claimant complained of defects in the quality of evidence, of fundamental breaches in the disciplinary hearings and in their deliberations and evaluations.  This would relate to the third element of the Burchell test.  The tribunal was satisfied that the respondent had carried out as much investigation as was reasonable in the circumstances.  

	The tribunal concluded that the Disciplinary Panel acted reasonably in finding the claimant guilty of gross misconduct having reasonable grounds on which to sustain this belief.  The tribunal concluded that the Appeal Hearing gave the claimant a fair hearing.  The tribunal therefore concluded that the investigation and disciplinary hearings were conducted as fully and as fairly as could be expected of the respondent, the test being reasonableness.

	The tribunal having satisfied itself as to the reasonableness of the process carried out went on to consider whether the respondent acted reasonably or unreasonably in treating the conduct of the claimant as a sufficient reason to justify his dismissal.  It is not for the tribunal to decide whether it would have imposed a lesser penalty than that imposed by the respondent. The question of the reasonableness of the sanction of dismissal was considered in Iceland Foods Limited –v- Jones [1982] IRLR 439:-

(a)	The starting point should always be the words of [Article 130(4)] themselves 

(b)	In applying the Article an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they, the members of the tribunal, consider the dismissal to be fair.

(c)	In judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer.

(d)	In many, although not all cases, there is a band of reasonable responses to the employee’s conduct within which one employer may take one view and another quite reasonably take another.

(e)	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 the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.

	The respondent’s code of conduct categorises refusal to carry out a reasonable instruction as gross misconduct and the claimant was advised that dismissal was a possibility prior to the Disciplinary Hearing.  The claimant had a clear disciplinary record and believed that a lesser penalty would be imposed.  The respondent’s evidence was that the system of flexible working required employees to move to other departments as necessary and take instruction from the supervisor in that area.  Mr Cummings gave evidence that the respondent could not operate effectively if that kind of insubordination was allowed to run.  The tribunal having considered all the evidence and submissions concluded that the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted.

	The dismissal was therefore fair and the claim must fail.

Chairman:

Date and place of hearing:	5 October 2006, 16 November 2006, 4 January 2007, Belfast

Date decision recorded in register and issued to parties: