THE INDUSTRIAL TRIBUNALS

CASE REF:  1175/06

CLAIMANT:			Michael Baxter

RESPONDENT:		NIE Powerteam Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent and the claimant’s claim is dismissed by the tribunal, without further order.

Constitution of Tribunal:
Chairman:		Mr J V Leonard
Members:		Mr Sidebottom
			Mr Laughlin

Appearances:
The claimant was represented by Mr C Patton, Barrister-at-Law, instructed by Patrick Fahy & Co, Solicitors.
The respondent was represented by Mr F O’Reilly, Barrister-at-Law, instructed by Viridian Group Plc, Legal Department.

REASONS

 1.	Reasons are given in accordance with Rule 30 contained in Schedule 1 to the Industrial Tribunals (Constitution Rules of Procedure) Regulations (Northern Ireland) 2005, reasons having been reserved at the conclusion of the hearing of the matter.  The tribunal heard oral evidence from Mrs Paula Leathem, Mr Colm Feeney and Mr Roy Coulter all of the respondent company and from the claimant.  The tribunal also had before it an agreed bundle of documents and that bundle was referred to in evidence throughout the course of the hearing.

 2.	The claimant’s claim was contained in a claim form dated 12 September 2006 and received by the Office of the Industrial Tribunals and the Fair Employment Tribunal on 13 September 2006.  In that claim, the claimant claimed unfair dismissal and specifically referred to inconsistency of treatment and contended that the penalty of dismissal was unreasonable when set against mitigating factors.

 3.	In a response to the claimant’s claim received by the Office of the Industrial Tribunals and the Fair Employment Tribunal on 2 November 2006, the respondent conceded that the claimant had been dismissed and contended that the dismissal was for gross misconduct, that the claimant’s conduct had destroyed the respondent’s confidence in the employment relationship and it was denied that the claimant had been unfairly dismissed. It was further contended that mitigating circumstances had been taken into account and that the penalty of dismissal was within the band of reasonable responses available.

 4.	Accordingly the tribunal had to determine the issue of whether the dismissal of the claimant by the respondent was fair or unfair by taking into account appropriate considerations.

THE TRIBUNAL’S DETERMINATIONS OF FACT

 5.	On foot of the oral and documentary evidence before it, on the balance of probabilities the tribunal determined the following facts material to the issue:-

	(a)	The tribunal heard the oral evidence of the various witnesses.  The tribunal found the witnesses giving evidence on behalf of the respondent to be forthright and consistent in their evidence.  Accordingly, the tribunal attached appropriate weight to the evidence of Mrs Leathem, Mr Feeney and Mr Coulter on the basis of that finding.  The tribunal, further, found the evidence of Mr Baxter to be in some respects unsatisfactory and inconsistent and specific reference will be made to that below.  Accordingly, the tribunal was unable to attach substantial weight to some aspects of the claimant’s evidence for the reason given.  

	(b)	NIE Powerteam Ltd, the respondent, is a wholly owned subsidiary company of Viridian Group Plc and is responsible for the provision of electrical service installations throughout Northern Ireland.  The respondent is responsible for provision of overhead electricity power lines and underground electricity power conduits by means of wayleaves and installations over, along and under public and private land; responsibility for supply ends at the meter board in each private or commercial premises in respect of this supply and installation.  Material to this case, if, for example, an underground cable were to be damaged during works being carried out by a third party on private lands, perhaps a driveway to a private dwelling house or a farmyard, the respondent would arrange to attend the site and carry out the necessary repairs. The respondent would then invoice any third party responsible for the damage with the cost of repairs.  Mrs Leathem in her evidence confirmed to the tribunal that the foregoing process was conducted under a scheme known as “TORT”. She had been instrumental in setting up that TORT scheme.  Mrs Leathem further explained that any such repair work carried out by the respondent was attended to by qualified engineers known as “jointers”. These persons were often assisted by persons known as “jointers’ mates”. The latter would not be properly qualified to carry out alone some aspects of these repairs operations. Thus jointers’ mates were there to assist the respondent’s jointers in the necessary operations.  Thus if any works were to be carried out in anything other than an official capacity or by an unqualified person it would represent not only a potential danger to the public at large but also the respondent would be deprived of the revenue that might properly be generated by the respondent attending to any repair works.

	(c)	The claimant commenced employment with Northern Ireland Electricity Service, (the predecessor to the respondent) in February 1975.  At the material time that concerns this tribunal, November 2005, the claimant was a jointer’s mate and was not by contract or by qualification authorised to carry out such work as would be properly conducted by a jointer.  There is no doubt that the claimant had very lengthy experience of working in the electricity industry. However, it is of note that the claimant had endeavoured to seek qualification as a jointer a relatively short time before the events that concern this tribunal, but he had failed in that endeavour to become appropriately qualified.

	(d)	On or about 9 December 2005, a contractor working on behalf of a customer of the respondent, a Mr John McCullagh who lived a short distance outside Omagh, damaged an underground power supply cable situated in Mr McCullagh’s farmyard.  When the respondent investigated the matter further and endeavoured to invoice Mr McCullagh under the TORT system, the customer protested that the respondent’s employee had previously fixed the cable and had charged Mr McCullagh £100 and so Mr McCullagh wanted his £100 to be returned to him if he was thus to be billed by the respondent for the cost of the repairs.  When the respondent further investigated that latter suggestion it transpired that the claimant had attended Mr McCullagh’s property on 9 December 2005 and had carried out some work to the damaged cable. This was done by the claimant on his own and without a qualified jointer.  The work carried out by the claimant indeed subsequently had to be the subject of further repair works. These subsequent works were properly carried out by the respondent and hence the invoice had been raised with Mr McCullagh, the latter then protesting as above-mentioned.

	(e)	On investigation, Mr McCullagh had named the respondent’s contractor as being a “Micky Baxter”, with an address in Portadown.  The respondent’s investigation connected the operative purporting to act on behalf of respondent with the claimant. The respondent then proceeded to investigate the matter further by conducting a disciplinary investigation and questioning the claimant about what had transpired.

	(f)	The claimant gave an account to the respondent’s investigators that he had been driving the respondent’s vehicle on the day in question and that he had been flagged down in Omagh and had then attended at Mr McCullagh’s premises.  The claimant once on site had noted that a service cable had been damaged and he had fixed the cable using the respondent’s resources and equipment.  When asked by the investigators about the payment of £100 cash (to which Mr McCullagh had alluded earlier) the claimant vehemently denied on a number of occasions receiving any cash whatsoever and he insisted that money had never been mentioned.

	(g)	A further investigatory interview took place on 26 May 2006 attended by the claimant. In the course of this the claimant conceded that he shouldn’t have done the work but he contended that he had been stopped on the road in the respondent’s vehicle on the morning in question and he had done this work as a favour as he knew some of the personnel who were present on Mr McCullagh’s premises.  Once again, the claimant denied that he had taken any money at all as recompense for the work.  

	(h)	The claimant was then suspended on full pay pending further investigation.  On 8 June 2006 the respondent wrote to the claimant requesting him to attend a disciplinary interview to be held on 14 June 2006 and the allegation was put to the claimant in that letter that he had carried out a repair to a damaged service cable outside normal working hours; he was not authorised to complete this work and during the incident he removed and replaced a fuse on an adjacent overhead pole which he was not authorised to complete; he failed to complete a jointer’s assessment during 2005 and was advised not the complete any jointing work; the respondent’s materials were used in the repair; the damage and subsequent repair were not reported to his team manager and none of the associated TORT paperwork was completed to allow the respondent to recover the associated costs.  It was also alleged that he had received a payment of £100 from the customer for completing this work.  It was further alleged that he had misled and been dishonest with the investigation panel during the investigation by stating that he had been on his way to another location to complete work for a builder in the Omagh area.

	(i)	On 14 June 2006 the scheduled disciplinary hearing proceeded. This was attended by the claimant, represented by a Mr Noel McDonald, with the respondent’s employees Mr Feeney and Mrs Leathem in attendance.  The allegations as listed were put to the claimant and, for the first time, the claimant apologised for earlier telling a different story. He stated that money was put in his pocket by the customer, Mr McCullagh, but that he did not know how much until later that evening.  The remainder of the allegations were in turn put to the claimant. He was, together with his representative, given an opportunity to respond.  The hearing concluded and the respondent’s representative conducting the hearing went into recess for some 45 minutes before confirming the decision. The decision was that the claimant was to be dismissed for gross misconduct. The claimant was afforded a right of appeal.  By letter dated 14 June 2006 the outcome of the hearing was confirmed to the claimant by the respondent.

	(j)	By letter dated 19 July 2006 the AMICUS Trade Union on behalf of the claimant wrote to the respondent setting out the basis of the requested appeal, which included the contentions, firstly, that it was alleged that the claimant had been requested over a number of years to undertake work of this or a similar nature at the Omagh depot, secondly, that the claimant’s alleged misleading of the investigation panel was prior to the disciplinary hearing itself, upon which occasion the claimant had been open and honest about his involvement and, thirdly, whilst it was accepted that the claimant had carried out the work and received a payment, his length of service (31 years) and previous good character ought to have been taken into account.

	(k)	The requested appeal hearing duly proceeded on 4 August 2006, chaired by Mr Coulter who was the respondent’s Manager, Group Safety and Risk. The hearing was attended by the claimant accompanied by a Mr Tweed, a full-time official of AMICUS. Also present were other persons from the respondent’s management.  The initial disciplinary hearing records and the stated grounds of appeal were considered by Mr Coulter. Mr Coulter included in deliberations the mitigating circumstances put forward on behalf of the claimant.  Mr Coulter then confirmed his decision which was that the penalty imposed at the disciplinary hearing was appropriate and thus the appeal was rejected.  Accordingly, the claimant’s summary dismissal for gross misconduct stood.  

THE APPLICABLE LAW

 6.	In respect of the applicable law, the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.  It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal.  The specified reasons set out in Article 130 include conduct. Article 130(4) of the 1996 Order provides that where the employer has shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason) the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.

7.       In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439 which includes the following:-

(i)	An industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal fair.
(ii)	In many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another.
(iii)	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.

THE TRIBUNAL’S DETERMINATION

 8.	It is for the employer to satisfy the tribunal as to the reason for dismissal and that it is a potentially fair reason. Conduct on an employee’s part is one such reason and that has been put forward as the reason by the respondent. The tribunal has considered the evidence before it and the submissions which have been made on behalf of both parties by the respective representatives.  For the claimant, there has been no challenge as such to the fairness of the respondent’s investigation nor to the issue that the respondent has carried out a sufficient investigation reasonably to establish belief in the fact of the claimant’s misconduct. The misconduct has been admitted by the claimant. Rather, the challenge has been mounted in terms of the context in which that admitted misconduct existed. 

9.   It has been submitted that there had been a culture of laissez-faire at the respondent’s Omagh depot concerning the use of unqualified persons to effect repairs without proper supervision by a qualified jointer.  It has been further submitted that, whilst the claimant had initially contended that he had received no payment for the work carried out on behalf of Mr McCullagh, that contention was prior to the stage of the disciplinary hearing. At that hearing the claimant had made a forthright admission and he had given the hearing his full and his honest co-operation.  In addition, a strong plea had been made in mitigation at that hearing that the respondent ought properly to take account of the claimant’s previously good record and his long service with the respondent.  All these, it was contended, had not been fully and properly taken into account by the respondent. Thus the respondent’s decision was not fair and reasonable.  

10.   For the respondent, it was contended that the claimant’s own testimony to the tribunal itself displayed an inconsistency of approach and a lack of veracity which had been quite evident in the investigatory process. It was only when, at the disciplinary hearing, the claimant had been faced with inescapable evidence that he had finally made the concession that he had indeed been paid for carrying out these repairs which were entirely unauthorised. He had done that, nonetheless, employing the respondent’s equipment and resources.  By doing so, the claimant had brought about a situation that any trust and confidence between employer and employee had been irreparably damaged.  The gross misconduct was of such a nature, notwithstanding the claimant’s long service, that the decision to dismiss was a reasonable one and was one which fell within the band of reasonable responses of a reasonable employer.  

 11.	Looking at these contentions, the tribunal has no doubt that the employer in this case carried out a full and proper investigation. The respondent conducted a number of interviews with the claimant. It sought out documentary sources of information to assist in the investigation. This evidence was properly placed before the claimant and his representative in the course of a disciplinary hearing. That hearing was properly and fairly conducted.  The respondent took the evidence and the submissions into account, including the mitigating factors put forward on behalf of the claimant, in reaching its determination as to disciplinary sanction.  Given the serious nature of the charges against the claimant, more especially so in the context of the particular nature of the business conducted by the respondent, the tribunal has little difficulty in concluding on a unanimous basis that, given all of the relevant circumstances, the respondent’s decision to dismiss the claimant fell within the band of reasonable responses of a reasonable employer. This is so notwithstanding the claimant’s long service and otherwise good work record when the matter is seen in its full and proper context.

12.	An appeal against the sanction of dismissal was then properly and fairly afforded by the respondent to the claimant. That appeal was conducted by Mr Coulter on behalf of the respondent in a manner which the tribunal cannot but regard as being entirely fair and proper in all respects.  The tribunal is satisfied that Mr Coulter took into account all relevant factors, including the mitigating circumstances put forward on behalf of the claimant by his AMICUS trade union representative.  The decision of Mr Coulter to uphold the original decision to dismiss and the general conduct of the appeal does not do anything to upset the fairness and the reasonableness of the original decision to dismiss in this case.  

13.	Taking everything into account, the tribunal is of the unanimous determination that the dismissal of the claimant by the respondent was fair under all of the circumstances.  That being the case, the claimant’s complaint of unfair dismissal is dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing:	10 January 2008, Omagh.

Date decision recorded in register and issued to parties: