THE INDUSTRIAL TRIBUNALS
CASE REF:	725/06

CLAIMANT:			Martin Evans

RESPONDENTS:		1. Royal Mail Group Plc
                                            2. John Thompson

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and the claimant’s claim is therefore dismissed.

Constitution of Tribunal:

Chairman:		Ms Turkington

Members:		Mr Crawford
Ms Graham

Appearances:

The claimant appeared and was represented by Mr Lynch of the Communication Workers’ Union.

The respondent appeared and was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

The Claim

1.	The claim was a claim of unfair dismissal.

The Correct Respondent

2.	The Chairman raised an issue at the outset of the hearing in relation to the correct respondent in this case.  Since this was a claim of unfair dismissal only, both parties agreed that the only correct respondent was the claimant’s employer, namely Royal Mail Group Plc.  The claim against John Thompson was therefore dismissed.

The Issues

3.	The issues to be determined by the tribunal were:-

(a)	whether the respondent had shown the reason for the dismissal and that the reason was one of the reasons falling within Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”); and

(b)	whether the dismissal was, in all the circumstances, fair or unfair;

(c)	in the event that the tribunal found the dismissal to be unfair, the compensation to be awarded to the claimant.  It was confirmed by the claimant’s representative at the outset of the hearing that the claimant did not seek reinstatement or re-engagement.

Sources of Evidence

4.	The tribunal heard evidence from the following witnesses on behalf of the respondent:-

Mr John Thompson
Mr Brian Cassidy

5.	The tribunal heard evidence from the following witnesses on behalf of the claimant.

The claimant Mr Martin Evans

Mr Mark Bush
Mr Gary Matthew Friel

6.	The tribunal was also referred to and considered a number of documents in the tribunal bundle.

Contentions of the Parties

7.	In summary, the claimant’s representative Mr Lynch contended that, in all the circumstances, no reasonable employer would have dismissed the claimant, unless that employer was operating an automatic dismissal process.  Mr Lynch relied on the following facts in support of this basic contention:-

(a)	the relevant deliveries had not been presented to the claimant;

(b)	the impact of the claimant’s domestic difficulties;

(c)	the claimant had been trusted to return to duty when his suspension was lifted;

(d)	the absence of any real hard evidence that it was the claimant’s intention not to deliver the mail coupled with the claimant’s clear record;

(e)	the claimant’s candour in relation to his breach of guidelines in relation to the Saturday deliveries;

(f)	before he left the delivery office, the claimant had done nothing wrong;

(g)	the mail for delivery had been removed by Royal Mail managers on the Monday afternoon and they had chosen not to advise the claimant;

(h)	the absence of any proper safe drop for the claimant to use; and

(i)	the trust placed in the claimant by the customers in the Fold and the petition from the residents together with the correspondence from Fr Reynolds.

Mr Lynch also relied on evidence given by Mr Bush and Mr Friel that it was acceptable to deliver door-to-door items on the Monday which meant that there was no offence at all.  He contended that the claimant was the victim of circumstances outside of his control since the mail was not available for delivery.

8.	Counsel for the respondent, Mr Dunlop, argued that, in making its decision, the tribunal must not place itself in the shoes of the employer.  The tribunal must consider whether the decision taken by the employer at the time was fair.  This must not be on the basis of evidence which has emerged since the employer’s decision or evidence given at the hearing – see Sainsburys Supermarket Ltd v Hitt.

9.	Mr Dunlop argued that, essentially, the questions for the tribunal to determine are:-

(a)	since this was a case involving conduct, whether there was a proper investigation;

(b)	could the respondent have reasonably formed the view that the claimant was guilty;

(c)	if yes, was the decision to dismiss one which lay within the range of reasonable responses.

Mr Dunlop relied on the appeal conducted by Mr Cassidy.  He argued that Mr Cassidy had left no stone unturned.  The claimant had not suggested there were any procedural failings in this case.  He also argued that the claimant himself had accepted that he knew the mail was to be delivered on the Saturday and there was no doubt the mail was not delivered on that day.  Mr Dunlop argued there was no dispute that the claimant had completed the claim form and had been paid on foot of it.  On the basis of the answers the claimant had given to him, Mr Cassidy had reasonably formed the view that the claimant was guilty of making a fraudulent claim.  Mr Dunlop argued this strikes at the heart of the claimant’s integrity and dismissal was clearly within the range of reasonable responses.

Facts of the Case

Having heard the evidence of all the witnesses and having considered the documents referred to in evidence, and the submissions made by the representatives of the parties, the tribunal found the following relevant facts:-

10.	The claimant was employed by the respondent from 19th August 1996 to 10th March 2006 as a delivery postman.  The claimant was based in the respondent’s Belfast Delivery Office, Donegall Quay, Belfast.  His delivery round (known as a walk) was duty no. 54 in the BT13 area of West Belfast.  Prior to his dismissal, the claimant had a clear conduct (disciplinary) record and was regarded as a good postman within that division.

11.	One of the claimant’s duties as a delivery postman was the delivery of door-to-door items.  These are unaddressed items of mail such as promotional literature which are to be delivered to all households within the postman’s walk.  The respondent enters into commercial contracts for the delivery of these door-to-door items.  These contracts usually require delivery of these items by the end of a given week. In a Bank holiday week, delivery of door-to-door items was to be completed by Saturday, unless the postman sought agreement from his manager for the time for delivery to be extended to Monday.  This door-to-door mail is treated by the respondent as the same as “live” mail, that is first and second class post.  Postmen are entitled to an additional payment for completing these door-to-door deliveries before the end of the relevant week.  Payment is claimed by signing and submitting the relevant claim form.

12.	On 10th May 2005, the claimant was counselled by his then manager C R McGuinness due to non-completion of door-to-door items the previous week.  The claimant said that this failure was due to a problem with his knee.  During that counselling meeting, the claimant confirmed that he was aware of the importance of completing his door-to-door deliveries.

13.	During the week commencing Monday 2nd January 2006, the claimant was the subject of an investigation by the respondent’s Investigations Branch.  As part of this investigation, items of door-to-door mail for delivery by the claimant were marked with ultra violet markings which were invisible to the naked eye.  The marked items were placed in the claimant’s sorting frame for delivery.  All staff were reminded on Thursday 5th January to deliver their door-to-door items.

14.	Investigations Branch checked at the end of the week for marked items amongst the undelivered door-to-door items.  However, in the event, the respondent did not                                                                                                                                  place reliance on the outcome of these checks because it became clear that items had been mixed up in the delivery office.

15.	There were 798 properties on the claimant’s walk and the claimant was therefore required to deliver 4 items of door-to-door mail to each of these properties before the end of the week commencing Monday 2nd January 2006.  On Friday 6th January, the claimant asked for assistance to prepare his door-to-door deliveries as he said he wanted to get these items delivered on the Saturday.  After the claimant had left the delivery office on the Friday, another post woman was asked to prepare the door-to-door mail for the claimant’s duty.  It was not disputed that the claimant had made door-to-door deliveries to 300 of these properties on Thursday or Friday leaving in excess of 400 properties to be delivered to on the Saturday. 

16.	On Saturday 7th January  2006, the claimant signed and submitted a claim form in which he confirmed that he had delivered all the door-to-door items due to be delivered that week.  It was normal and accepted practice for postmen to complete these forms before completing the delivery of this mail on a Friday.  The claimant later received payment of the sum of £47.98 on foot of this claim for payment.  It was conceded by the respondent’s witnesses in evidence that the claimant was properly entitled to a portion of this payment for the door-to-door items he had delivered.

17.	On Saturday 7th January 2006, the claimant left the bag of door-to-door items out for delivery and set off to do his deliveries as normal.  A bag of door-to-door mail for the claimant’s duty was sent out with a van driver to be left at Clonard Fold.  This was the recognised drop-off point being used at that time for the claimant’s duty since the Royal Mail safe box on that route had previously been vandalised.  The driver was unable to gain entry to the Fold since the access code had been changed and he returned to the delivery office with the bag of door-to-door mail.  Later the same day, the driver was again sent out to Clonard Fold to leave the bag of door-to-door mail to be delivered by the clamant.  This time the driver was able to gain access and the bag of mail was left at the normal drop-off point to be collected by the claimant.

18.	In the course of doing his walk, the claimant arrived at the drop-off point at the Clonard Fold.  At that stage, the bag of door-to-door items was not there.  The claimant completed his deliveries at 9.30 am and headed home.  The claimant was contracted to work for 6 hours on the Saturday and therefore his official finish time was just before 12pm.  However, it was acceptable for postmen to go home early provided they had completed their deliveries.

19.	Some time over the course of the weekend, and unknown to the claimant, the Manager of the Fold had removed the bag of door-to-door items for safekeeping.  Therefore, when the claimant was doing his walk on Monday 9th January 2006, the mail bag was not at the drop-off point.  The claimant completed his normal deliveries and went home.

20.	On the Monday afternoon, two of the respondent’s managers called at the Clonard Fold and recovered the mail bag containing door-to-door items.  The bag was taken back to the Delivery Office for examination by the Investigations Branch.  The claimant was not informed that the bag had been removed.

21.	On the Tuesday, the claimant had once again carried out his deliveries as normal.  A resident at the Fold told the claimant that a bag of mail had been collected by the respondent’s managers.   The claimant phoned his manager Mr Early saying that the bag of door-to-door items for delivery was not there.  The claimant had not previously reported any problem with this bag of mail.

22.	On Wednesday 11th January 2006, the claimant was interviewed by Investigation Branch and, later that day, the claimant was placed on precautionary suspension by Mr John Thompson, Delivery Office Manager, North Belfast.

23.	Following consideration of the investigation report from Investigations Branch, the claimant’s suspension was lifted by Mr Thompson on Friday 13th January 2006 and the claimant was allowed to return to work.  The claimant worked as normal until the date of his dismissal.

24.	The claimant was invited by letter to attend a Conduct Interview with Mr Thompson on 26th January 2006.  The conduct charges against the claimant were:-

(a)	wilful delay of mail; and

(b)	making a fraudulent claim for delivery of door-to-door items.

Para 5 Appendix 3 of the respondent’s Conduct Code states as follows:-

“Wilful delay of mail is classed as gross misconduct, which if proven could lead to dismissal.  The test to determine whether actions may be considered as wilful delay is as follows:-

Deliberate action taken by an employee that causes mail to be delayed is called wilful delay.  Where proven, such breaches of conduct can lead to dismissal, even for a first offence: indeed Wilful Delay is a criminal offence and can result in prosecution”.

25.	Mr Thompson’s letter dated 26th January 2006 reminded the claimant of the seriousness of the charge against him and indicated that dismissal was one possible outcome of the case.  All the paperwork to be used at the Conduct Interview was furnished to the claimant in advance of the interview.  The claimant duly attended the Conduct Interview and was represented by Mr Billy Hannaway, Area Representative, Communication Workers Union.  

26.	At the Conduct Hearing before Mr Thompson, the claimant was asked to explain his actions on Saturday 7th January and Monday 9th January 2006.  The explanations provided by the claimant were as follows:-

When asked to explain why he did not ring his manager Mr Eric Early when he found that the bag of door-to-door items was not at the drop-off point on the Saturday, the claimant’s answer was “I thought Eric had got someone to deliver them for me.  No, I didn’t ring Eric”. 

When asked what he would normally do if his bag was late, the claimant’s response was “I would ring in but can’t always reach Eric by phone”.

When asked why he did not tell Mr Early on the Monday that he had not delivered the items on the Saturday, the claimant answered “I was going to do them on the Monday, I forgot.  I didn’t speak to Eric”.

When asked why on Tuesday 10th January he did not tell Mr Early that he had failed to deliver the items on the Saturday or Monday, the claimant answered “I honestly forgot about them and didn’t think to speak to Eric about them.  The grey bag was not in the normal place and I simply forgot, it was really an honest mistake, I am sorry”.

Mr Thompson suggested to the claimant that he had only telephoned the office on Tuesday 10th January because a resident from the Fold had told the claimant that two people from the respondent had collected it.  The claimant’s answer was “I realised the door to doors had to be done and someone in the Fold told me the bag had been taken away.  I was planning to do them on the Tuesday.”

When Mr Thompson suggested again that the only reason the claimant rang in was because a resident had triggered it, the claimant’s answer was “No, this is not the case.  I had finished my walk and went back to do them and discovered they were not there.  I phoned to report this.”

27.	In the course of the Conduct Interview, the claimant identified his claim form and confirmed that it was completed in his handwriting.  The claimant confirmed that he had given the form to Mr Early on the Saturday before leaving the office.  The claimant stated that he had felt under duress at the time and he had submitted the form in good faith and Mr Early knew he hadn’t delivered all the items.

28.	At the end of the Conduct Interview, the claimant was asked to provide mitigation as to why he should not be dismissed for this offence.  At this point, the claimant became distressed and cried and the interview was suspended for a short time.  When the interview resumed, the claimant spoke of certain domestic difficulties concerning members of his family.  The claimant claimed that he was rushing home on Monday 9th January 2006 for reasons connected with his family.

29.	Following the Conduct Interview, Mr Thompson met with the claimant who was accompanied by Mr G McCurry, representative of the Communication Workers Union.  Mr Thompson confirmed to the claimant that both the conduct charges against him were upheld and that he was being dismissed from the respondent’s employment.  Mr Thompson confirmed in evidence that the fraudulent claim was the reason why he dismissed the claimant.  At this meeting, Mr Thompson also confirmed that the claimant was being dismissed with 10 weeks pay in lieu of notice since he had been allowed to return to work from suspension.  Mr Thompson’s decision was then confirmed in writing.

30.	The claimant appealed against Mr Thompson’s decision on the grounds that he considered it to be inherently unfair.

31.	The claimant’s appeal against dismissal was heard by Mr Brian Cassidy.  The appeal was a complete re-hearing of the case and it was open to Mr Cassidy to uphold the dismissal or rescind the decision altogether or impose a lesser penalty.  The claimant attended an appeal interview with Mr Cassidy on 12th June 2006 where he was represented by Mr Pete Donaghy of the Communication Workers Union.  Detailed written appeal submissions were lodged on behalf of the claimant.   The claimant’s representative also relied on a considerable number of documents, including, inter alia, a letter from Ms Cheryl Forsyth, Supervisor of Clonard Fold dated 24th April 2006, a petition from the residents of Clonard Fold, a letter of support from Fr Gerry Reynolds of Clonard Monastery and a hand-written letter from the van driver who had delivered the bag of mail on the Saturday, namely Mr G Lowe.  In addition to his detailed written submissions, the claimant’s representative also made additional oral submissions at the appeal interview.

32.	The claimant confirmed at the appeal hearing that he was fully aware of the policy in relation to wilful delay of mail and that to deliberately delay mail was a dismissible offence, even for a first offence.  He further confirmed that he understood this included door-to-door mail. 

33.	At the appeal hearing, the explanations given by the claimant at the Conduct hearing before Mr Thompson (see para 26 above) were put to the claimant by Mr Cassidy.  The claimant was asked why, if he thought the mail had been delivered by someone else on the Saturday, the claimant went to look for the bag again on the Monday.  The claimant’s response was that it was not until the Monday when the bag was still not there that he considered that it may have already been delivered.    When asked at the appeal hearing why he had not contacted the office when it was obvious the bag of mail was missing, the claimant spoke of his domestic difficulties.  During the week in question, the claimant said he had only been thinking about his family hence his forgetfulness.

34.	In addition to his written submissions, the claimant’s representative Mr Donaghy submitted at the appeal hearing that this was not a wilful delay case, but a lesser charge of unexcused delay was more appropriate.  He also alleged that Mr Thompson had indicated prior to the Conduct Interview that the claimant would not be dismissed.  Finally, he pointed out that Mr Thompson had said in his decision letter that a penalty less than dismissal might have been appropriate but for the “false” door to door claim. 

35.	Following the appeal interview, Mr Cassidy read all the relevant papers, including those submitted by the claimant’s representative.  He also made a number of further enquiries.  

36.	At the appeal hearing, the claimant’s representative Mr Donaghy referred to what he contended was a relevant comparator case, that of Mr M.  It was Mr Donaghy’s contention that Mr M had not been dismissed although the circumstances of the cases were similar.

37.	Following the appeal hearing, Mr Cassidy obtained and considered papers relating to the case of Mr M.  These showed that Mr M had been charged not with wilful delay of mail, but rather with “failure to deliver door-to-door items” which was a lesser charge.  Neither was Mr M charged with making a fraudulent claim as the claimant had been.  Mr Cassidy therefore took the view that this case was not comparable to that of the claimant.

38.	Mr Cassidy had a telephone conversation with Mr Thompson.  He put to Mr Thompson the allegation that he had indicated to a union representative that the outcome of the case would be short of dismissal.  Mr Thompson denied this.

39.	Further, Mr Cassidy had a telephone conversation with Ms Judith Newell a member of night staff at the Delivery Office who had been asked to assist the claimant by preparing the relevant door-to-door items for delivery.  Ms Newell confirmed that she had, in error, placed undelivered door-to-door items belonging to the claimant and other postmen in the undelivered area.  Ms Newell had wrongly thought that these were excess items.  This led to the claimant’s items being mixed up with those of other postmen.

40.	Mr Cassidy also spoke by telephone with Mr Eric Early the claimant’s line manager who denied that he had put the claimant under any pressure to complete the claim form.

41.	Mr Cassidy also wrote to the claimant on 30th June 2006 putting forward some further written questions upon which he sought the claimant’s comments.  The claimant’s own responses and the comments of his representative were furnished to Mr Cassidy on 4th July 2006.  The claimant was asked again why he would go to look for the bag of mail on the Monday when he had told Mr Thompson that he had thought on the Saturday that someone else had delivered the mail.  There was no substantive response to that question.  Mr Cassidy suggested that much of the claimant’s case was based on “forgetfulness”. The claimant’s response was that his domestic circumstances were at that time more extreme than at any normal time.  The claimant also stated that he was reluctant to inform anyone in the workplace about the severity of these problems.  In relation to the claim form, Mr Cassidy put to the claimant that Mr Early had followed his normal practice of reminding staff to submit their form and collecting the forms.  The claimant was asked to comment specifically as to what led to the pressure/duress the claimant felt under to complete the form.  In response, the claimant stated that he was first approached about the claim form on the Saturday morning.  As he had not yet completed the door-to-door, he would have not completed the form until the door-to-door were fully completed.  The claimant said that Mr Early approached him twice on the Saturday to complete the form and he completed it in good faith, with every intention of completing the deliveries.

42.	On 10th July 2006, Mr Cassidy wrote to the claimant confirming that his appeal against dismissal had been unsuccessful.  Mr Cassidy explained his decision in a ten page document attached to that letter and headed “Summary and Decision”.  Mr Cassidy concluded that the claimant was guilty of both of the conduct charges against him, although he indicated that he would not have upheld the dismissal decision if it had not been for the charge relating to the fraudulent claim.

Statement of Law

43.	The statutory dismissal procedure introduced by the Employment (Northern Ireland) Order (“the 2003 Order”) applies in this case.  In very basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 - written statement of grounds for action and invitation to meeting.

Step 2 - meeting.

Step 3 – appeal.

Where the employer is responsible for non-compliance with the statutory dismissal procedure, the dismissal is automatically unfair.

44.	By Article 130(1) of the Order, it is for the employer to show the reason for the dismissal and that it is a reason falling within para (2).  A reason falls within para (2) if it relates to the conduct of the employee.

45.	Article 130(4) of the Order states as follows:-

“where the employer has fulfilled the requirements of para (1), 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 or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

46.	The leading case in relation to dismissals for misconduct is BHS v Burchill 1978 IRLR 379 (EAT).  In the Burchill case, the EAT set out the following principles:-

“What the tribunal have to decide every time is, broadly expressed, 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.  ……………First of all, there must be established by the employer the fact of that belief……… Secondly, that the employer had …reasonable grounds for that belief.  And thirdly……….that the employer………had carried out as much investigation into the matter as was reasonable in the circumstances of the case”.

47.	The leading case on the application of section 98(4) of the Employment Rights Act 1996 (the equivalent of article 130(4) of the Order) is Iceland Frozen Foods v Jones 1982 IRLR 439 EAT.  In this decision which has been subsequently approved by the Court of Appeal on many occasions, Browne-Wilkinson J stated that “the correct approach for the industrial tribunal to adopt in answering the question posed by [article 130(4) of the Order] is as follows:-

i.	the starting point should always be the words of [article 130 (4)] themselves

ii.	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they consider the dismissal to be fair;

iii.	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;

iv.	in many, though not all cases where there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another employer might quite reasonably take another;

	v.	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.”

48.	In the case of Sainsbury’s Supermarkets Ltd v Hitt 2003 IRLR 23, the Court of Appeal emphasised that it was not for the tribunal to substitute its own view for that of the employer.  The Court stated as follows:-

	 “The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason”.

Conclusions

49.	In light of the facts found, the tribunal considered that the requirements of the statutory dismissal procedure were fully complied with in this case. This was not disputed by the claimant.  The claimant received a step 1 letter from Mr Thompson inviting him to a disciplinary meeting, namely the Conduct Interview with Mr Thompson.  There was a step 2 meeting, namely the conduct interview with Mr Thompson, when the claimant was given an opportunity to present his case. The claimant had been provided with copies of all the relevant documents in advance of that meeting.  The claimant also had a step 3 appeal meeting with Mr Cassidy where he was once again provided with a reasonable opportunity to present his case.

50.	The tribunal was further satisfied, based on the evidence and the facts found by the tribunal, that the respondent had shown the reason for the dismissal and that the reason was the claimant’s conduct on or about Saturday 7th January 2006 and Monday 9th January 2006.  It was not contended by the claimant’s representative at the hearing that there was any other reason for the dismissal.  As indicated at para 44 above, the conduct of the employee is a potentially fair reason for dismissal falling within Article 130(2) of the Order.

51.	It was then necessary for the tribunal to consider, having regard to the reason shown by the respondent, whether the dismissal was fair or unfair in the light of the principles set out in Article 130(4) of the Order and the guidance set out in the Burchill, Iceland Frozen Foods and Sainsbury’s Supermarkets cases referred to at paras 46 to 48 above.

52.	In considering this matter, the tribunal focused on the decision of Mr Cassidy who heard the claimant’s appeal against dismissal.  The tribunal did so because Mr Cassidy’s conclusions were based on narrower grounds than the basis on which the dismissing manager Mr Thompson had upheld the charges against the claimant.  Mr Cassidy had discounted the allegations relating to undelivered door-to-door items left at the Delivery Office having clarified this matter with Ms Newell.

53.	In accordance with the guidance set out in the Burchill decision, the first question for the tribunal to determine was whether Mr Cassidy believed that the claimant was guilty of the two conduct charges against him, namely wilful delay of mail and making a fraudulent claim for delivery of door-to-door mail.  Having heard the oral evidence of Mr Cassidy and considered the Summary and Decision prepared by him, the tribunal was satisfied that, after he had heard and considered the claimant’s appeal, Mr Cassidy had such a belief.

54.	The next question for the tribunal to determine was whether Mr Cassidy had reasonable grounds for that belief.   Essentially, this was a case where there was little or no dispute between the claimant and the respondent in relation to the basic facts of the case. It was accepted by the claimant that he had not delivered the relevant bag of door-to-door mail either on Saturday 7th January 2006 or on Monday 9th January 2006.   The claimant also accepted in evidence that he was aware delivery had to be completed by Saturday unless he had obtained his manager’s agreement for delivery to be completed on the Monday.  Further, it was accepted by the claimant that he had completed and signed the claim form for payment in respect of completing his door-to-door deliveries that week.  The area of dispute in this case, both in the internal proceedings and at the hearing before the tribunal, centred on the claimant’s explanation in respect of these basic facts.

55.	The explanations provided by the claimant at the Conduct Hearing in respect of the charge of wilful delay are set out at paragraph 26 above.  The explanations provided to Mr Cassidy at the appeal hearing when these matters were put to the claimant are set out at paragraph 33 above. 

56.	In relation to the charge of wilful delay, Mr Cassidy considered those explanations and concluded that, there were a number of inconsistencies in the information put forward by the claimant.  He also concluded that those inconsistencies put forward by the claimant and the lack of a clear and consistent explanation pointed to a deliberate and conscious act as opposed to actions influenced by any domestic situation. Overall, Mr Cassidy formed the view that the information strongly supported an act of wilful delay. 

57.	The claimant’s explanation in respect of the claim form is set out at para 27 above.  Mr Cassidy considered this explanation and the information furnished during his telephone conversation with Mr Early.  Mr Cassidy considered that when the manager collected the forms before deliveries were completed, this was in the expectation that the mail would be delivered.   He did not accept that the claimant was under undue pressure to complete the claim form.  Mr Cassidy concluded that the claimant had every opportunity to withdraw the claim, but had not done so.  Mr Cassidy was of the view that it was the claimant’s conduct after he left the delivery office on the Saturday which amounted to gross misconduct.  He considered that the claimant had a number of opportunities to inform his managers that he had not delivered the bag of door-to-door items, but he had failed to do so and had given a number of inconsistent explanations for this failure.

58.	 In light of the facts found and having considered Mr Cassidy’s detailed reasoning as set out in his Summary and Decision together with his oral evidence at the hearing, the tribunal is satisfied that there were reasonable grounds for the belief which Mr Cassidy formed that the claimant was guilty of the conduct charges against him.  The tribunal is reinforced in this view by the fact that the claimant himself candidly admitted under cross-examination at the hearing that there were inconsistencies in the account he had given to the respondent’s managers and that those inconsistencies would affect his credibility.

59.	The next question to be determined by the tribunal in accordance with the Burchill principles is whether the respondent had carried out as much investigation as was reasonable in the circumstances.  The tribunal considered there had been very extensive and detailed investigation in this case.  There had been a preliminary investigation by the Investigations Branch followed by a Conduct Interview conducted by Mr Thompson at which the claimant had a reasonable opportunity to put forward his case.  Finally, in considering the claimant’s appeal, Mr Cassidy carried out a further investigation following up a number of matters which had been raised by the claimant in his submissions.  This included Mr Cassidy obtaining the papers in relation to the suggested comparator case of Mr M, speaking by telephone to Ms Newell, Mr Early and Mr Thompson and putting further written questions to the claimant.  The claimant was also given every opportunity to put forward his case at the appeal hearing and this was acknowledged by the claimant’s representative at the end of the hearing.

60.	In all the circumstances, the tribunal was in no doubt that the respondent had carried out as much investigation as was reasonable in the circumstances.

61.	The final issue for the tribunal to determine was whether, in all the circumstances, the dismissal was fair or unfair.  In considering this issue, the tribunal was mindful that it was not for the tribunal to substitute its own view for that of the employer – see the Sainsburys case referred to at para 48 above.  The tribunal was also mindful that it must consider this matter on the basis of the information available to the employer at the relevant time and not any information which has become available since or indeed evidence given for the first time at the hearing.  The claimant admitted under cross-examination that he had provided an account of his behaviour at the tribunal hearing which he had not told the respondent’s managers.  The tribunal approached this matter on the basis described in the Iceland Frozen foods case as set out at para 47 above.

62.	In this case, Mr Cassidy concluded that the claimant was guilty of two conduct charges, namely wilful delay of mail and making a fraudulent claim for delivery of door-to-door items.  Under the respondent’s Conduct Code, wilful delay of mail is classed as gross misconduct.  However, if the claimant had been found guilty of this charge alone, Mr Cassidy would have upheld the claimant’s appeal and reinstated him.  In relation to the fraudulent claim, Mr Cassidy was of the view that this struck at the heart of the claimant’s integrity and as a result, the respondent’s trust and confidence in the claimant was eroded.  In his Summary and Decision, Mr Cassidy states that he was mindful of the claimant’s personal circumstances and previously clear conduct record.  He also stated that he considered other penalties, but concluded that the points of mitigation did not outweigh the seriousness of the offence to the extent that a penalty less than dismissal was justified.  Mr Cassidy therefore decided that dismissal was an appropriate penalty in this case.

63.	The tribunal was in no doubt that the claimant faces very real domestic difficulties and is entirely sympathetic to the claimant’s position in this regard.  The tribunal is also mindful that the claimant had a clear disciplinary record prior to these events and was regarded as a good postman.  The claimant was, however, found guilty of two charges of misconduct which were regarded by the respondent as offences of gross misconduct.  The tribunal has therefore concluded that dismissal lay within the range of reasonable responses of a reasonable employer in the circumstances of this case and that the respondent acted reasonably in treating the claimant’s conduct as sufficient reason for dismissal.

64.	Accordingly, the unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

Chairman:

Date and place of hearing: 24th, 25th & 26th January 2007, Belfast.

Date decision recorded in register and issued to parties: