Bell v RHM Bakeries Ireland T/A Premi... [2008] NIIT 1520

1520_07IT Bell v RHM Bakeries Ireland T/A Premi... [2008] NIIT 1520_07IT (25 June 2008)

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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bell v RHM Bakeries Ireland T/A Premi... [2008] NIIT 1520_07IT (25 June 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1520_07IT.html
Cite as: [2008] NIIT 1520_07IT, [2008] NIIT 1520_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1520/07

CLAIMANT: Raymond Kenneth Bell

RESPONDENT: RHM Bakeries Ireland T/A Premier Foods Group Ltd

DECISION

The unanimous decision of the tribunal is that the claimant's unfair dismissal claim is dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Professor D Boyd

Mrs T Cregan

Appearances:

The claimant was represented by Mr Smith, Barrister-at-Law, instructed by Richard Monteith Solicitors.

The respondent was represented by Mr R Murphy of the Engineering Employers Federation.

The claim

The claimant's claim was that he was unfairly dismissed for misconduct on 10 July 2007 in that the dismissal was procedurally unfair and dismissal was not a fair sanction.

The issues

The issues for the tribunal therefore were as follows:-

(a) What was the reason for the dismissal?

(b) Was that reason one of the potentially fair reasons outlined in the legislation? The reason engaged in this case was agreed to be that of misconduct.

(c) Was the dismissal fair in all the circumstances?

Sources of evidence

The tribunal heard evidence from the respondent's witnesses, Mr Cupples the Shift Manager, Mr McConkey the Process Manager, Mr Holmes the Area Manufacturing Manager. The tribunal heard evidence from the claimant and his brother, Mr Martin Bell. The tribunal had an agreed bundle of documentation and a schedule of loss from each of the parties.

Facts

The tribunal found the following facts relevant to the issues before it. The claimant worked for the respondent as a pool baker from August 2003 until his dismissal on 10 July 2007.

The respondent had absolutely no difficulties with the claimant's work and regarded him as a good, hard worker. The claimant had no history of disciplinary problems with the respondent.

This case revolves around an incident which took place on Wednesday 20 June 2007 at approximately 3.50 am on the night shift. On that night the claimant went to the canteen on his break and sat opposite Alan Carter who was engaged in a card game with two co-workers Mr Weldon and Mr Wilgaus. When the claimant asked to join in the card game he was told to wait because it was a final in a series of games. After the game was over Alan Carter lifted the cards and put them in his pocket. It was agreed between the parties that an altercation ensued, which involved aggressive, shouting, foul language and the claimant touching Carter's head. What was an issue between the parties was the degree of force used by the claimant and the extent of the bad language.

Alan Carter made a complaint to Mr Cupples who was in charge on that night shift. Mr Cupples typed Mr Carter's account of the incident into an email which he then sent to Personnel for further action. In that email he recorded amongst other things the following account of the incident:-

"then he started to verbally abuse me because I wouldn't deal him in. When the game finished between myself and Robert I put the cards away. Raymond continued to verbally abuse me. As I put the cards in my pocket I felt two hands on my head as I looked away towards the TV. He then shoved my head and manhandled me."

Mr Cupples asked Mr Bell to attend in his office to give his account of what happened and again Mr Cupples typed up in an email the account to be sent to Personnel for further action. The claimant disputed that he knew that the matter was being typed into an email but did not attack the accuracy of the account and the tribunal therefore finds the following account in the body of the email to be an accurate reflection of the claimant's account at that time, some 50 minutes after the incident took place:-

" … Alan replied that he wasn't playing anymore. So I called Alan a sleekit cunt then I got up and told Alan I would pull the cap off his head and Alan replied "you won't". I then asked Alan who would stop me and he said that he would."

Mr Cupples spoke to Mr McDaid and Mr Dodds who had also been in the canteen at the time, but they didn't want to be involved and said they had seen nothing. Mr Cupples emailed the account of the incident to the managers and HR. Mr Carter went off sick following the incident saying that he had a pulled muscle in his neck and was off work for one week.

There was a CCTV system in the canteen at the time. The CCTV footage for that period was viewed at different times by Mr Cupples, Mr Holmes, Kyla McCracken and Mr McConkey. The CCTV footage had been destroyed and was not available for the tribunal hearing.

The investigation as a whole involved Mr Cupples and Ms McCracken speaking to the claimant, Robert Wilgaus and Alan Carter, the complainant.

On 27 June 2007 a letter was sent to Mr Bell asking him to attend an investigation meeting on Thursday, 28 June 2007 regarding the altercation in the canteen.

The meeting with the claimant took place on 28 June 2007 and the claimant was accompanied by his trade union shop steward. Mr Cupples and Ms McCracken from HR conducted the investigatory meeting. The claimant said at the meeting that he tried to pull the hairnet off Mr Carter's head and confirmed that he had touched the back and top of Carter's head and called him a "sleekit bastard". The claimant was asked to demonstrate the way in which he touched Carter's head and he did so by placing both hands on Mr Cupples' head and shaking it slightly.

The claimant gave four different versions of the way the altercation took place, during the process with his employer: in the email, at the investigatory meeting at the disciplinary meeting and at the appeal meeting. The tribunal accepts the accuracy of the demonstration at the investigatory meeting and finds that the claimant stood up, aggressively shouted at Carter, put two hands on his head and shook it, using abusive language and called Mr Carter a "sleekit cunt".

The minutes of the investigatory meetings were sent to Gerry McConkey, who initiated the disciplinary process by sending a letter dated 3 July 2007 to the claimant to advise him of the disciplinary meeting arranged for 4 July 2007. The claimant was provided with copies of his initial statement, the claimant's initial statement, the minutes of the investigatory meeting with the claimant and the complainant and Wilgaus, a copy of the company disciplinary procedure. He was told in the letter that the alleged offence was of "violent and/or insulting behaviour during working hours or on company time in particular the physical assault of a fellow colleague on 20 June 2007". The claimant was warned in the letter that such behaviour could render an employee liable to summary dismissal and he was advised of his right to be accompanied. The meeting was rearranged at the claimant's request to 10 July 2007.

The disciplinary hearing took place on 10 July 2007 and the claimant was accompanied by his shop steward and the decision makers were Mr McConkey and Ms Michael, the Process Manager.

The claimant and his representative raised the CCTV issue again at this hearing and the hearing was adjourned for one hour, thirty-five minutes to enable Mr McConkey and Ms Michael to look at the CCTV footage. The claimant also introduced a statement from Martin Weldon which he said should be investigated because there was "messing around" prior to Mr Carter receiving his injury and it might not have been the claimant that caused the injury and he felt the CCTV footage would clarify everything.

The statement from Martin Weldon was dated 9 July 2007 and stated as follows: "This may have no bearing to the decision regarding incident between R Bell and A Carter. After the alleged incident I was told that a request to see the camera footage. I said to Alan would that be wise as we bantering and horseplaying prior to the incident and I stated it could show our antics and was this wise". Martin Weldon had left the canteen before the incident took place between the claimant and Mr Carter.

Mr McConkey and Ms Michael at the disciplinary investigation decided not to show CCTV footage to the claimant or his representative as they stated that it showed nothing about the incident that they were looking at. They also decided not to follow up the claimant's request that they speak to Mr Weldon.

The claimant was summarily dismissed at the meeting on 10 July 2007. The dismissal was confirmed in writing by letter of 11 July 2007, in which the claimant was advised of his right to appeal.

The claimant exercised his right to appeal by letter of 13 July 2007 and an appeal hearing took place on 19 July 2007 with David Holmes the Area Manufacturing Manager and Sharon Campbell the Marketing Director. The letter advising of the appeal hearing was dated 17 July 2007 and enclosed minutes of the disciplinary hearing and advised the claimant of his right to be accompanied.

The appeal hearing took place on 19 July 2007 and the claimant was accompanied by three trade union representatives. At the appeal hearing the claimant again asked about the video evidence. Mr Holmes said that the video footage did not show anything so the union representative agreed to stick to the statements. One of the union reps mentioned two further witnesses and the meeting was adjourned for twenty five minutes to enable Mr Holmes to speak to both witnesses on the phone. Neither witness added anything of significance to the matter. The claimant's side maintained that any altercation was horseplay and not violent behaviour.

The appeal outcome was that the dismissal was confirmed and Mr Holmes confirmed this in a telephone call with the claimant a few days after the appeal and sent a letter on 20 July 2007 to confirm the decision.

The disciplinary policy and procedure document lists examples of gross misconduct and states as follows:

"Examples of more serious forms of misconduct which will render an employee liable to summary dismissal for gross misconduct are given below. This list is not exhaustive and other actions of a similarly serious nature will also render an employee liable to summary dismissal …

(f) Violent or insulting behaviour during working hours or on Company premises".

The disciplinary policy and procedure also gave examples of general misconduct and states as follows:

"The following will render an employee liable to formal disciplinary action under the terms of the Disciplinary Policy and Procedures. These are examples only and other breaches of discipline of a similarly serious nature will be dealt with in the same way …

(j) acts of incitement, bullying, discrimination or harassment … NB serious breaches of ….(j) will be considered as gross misconduct and dealt with accordingly".

The respondent disciplined the claimant under the gross misconduct part of the disciplinary code on the basis that the behaviour was violent or insulting behaviour.

The decision to dismiss was under the "violent and insulting behaviour" part of the gross misconduct section in the disciplinary policy. The fact that Mr Carter alleged that he was injured and took time off as a result was not relevant to the respondent's determination of the seriousness of the incident.

The Law

The right not to be unfairly dismissed is set out at Article 126 of the Employment Rights (Northern Ireland) Order 1996. Potentially fair reasons for dismissal are listed at Article 130 of the Order and one of the potentially fair reasons relates to the conduct of the employee.

The law on misconduct dismissals is outlined in Harvey on Industrial Relations and Employment Law, Division D1 at paragraphs 1351-1600.

In cases involving dismissal on the grounds of alleged misconduct, the tribunal must apply the Burchell test. This test was approved by the Northern Ireland Court of Appeal in the case of Ulsterbus v Henderson 1989 IRLR 251 and by the Court of Appeal in the cases of Foley and Madden 2000 IRLR 827. In order to satisfy the Burchell test the employer must show that he believed the claimant was guilty of misconduct at the time, that he had reasonable grounds to sustain that belief and that he had done as much investigation as was reasonable in the circumstances.

The appellate courts have made it clear that the tribunal should not seek to substitute its own view for that of the employer nor should it seek to re-try the disciplinary hearing. Rather, the tribunal's role is to consider whether the dismissal fell within the band of reasonable responses which a reasonable employer might have adopted as regards both procedure and the sanction.

Any problems with an initial disciplinary hearing are capable of being "cured" on appeal. (Taylor v OCS Group Court of Appeal). The claimant's counsel referred the tribunal to the case of Meridien Ltd v Gomersall at paragraph 1573 of Harvey in relation to the question of whether dismissal was a fair sanction. Harvey makes it clear that that decision should be treated with some caution as a later decision of EAT held that a tribunal had fallen into error when it felt itself obliged to follow the Gomersall case.

The statutory disciplinary and dismissal procedures are set out in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations and Employment (Northern Ireland) Order 2003. Essentially there are three steps in the standard disciplinary and dismissal procedure. Step 1 involves the employer writing to the employee setting out the alleged disciplinary failing of the employee and inviting the employee to a disciplinary meeting to discuss the matter. Step 2 involves holding a meeting and notifying the employee of the decision and the right of appeal. Step 3 involves inviting the employee to an appeal meeting if the employee avails of the appeal process and notifying the employee of the appeal decision. All actions under the procedures must be conducted without unreasonable delay, the timing of and place of the meetings must be reasonable and the formal meetings must be carried out in a way which allows both employer and employee to explain their cases. Appeals should be decided by more senior managers than the original decision-maker as far as is reasonably practicable. The employee has the right to be accompanied by a colleague or a trade union official at all meetings.

The respondent referred the tribunal specifically to the case of Santa Mera v Express Cargo Forwarding T/A IEC Ltd 2003 IRLR 273 EAT. This case essentially covers the same ground as the Ulsterbus v Henderson decision. Several principles emerge from these cases. Firstly, there is no rule of law which requires an employer when dismissing an employee for misconduct to arrange for the employee to have the opportunity to cross-examine the person making the complaint. In a dismissal case based on conduct it is sufficient for the employer to have a genuine belief that the employer has behaved in the manner alleged, to have reasonable grounds for that belief, and to have conducted an investigation which is fair and proportionate to the employer's capacity and resources. The employer has to act fairly but fairness does not require a forensic or quasi-judicial investigation. The issue is always reasonableness and fairness.

Conclusions

The tribunal applied the three elements of the Burchell test and finds as follows. The employer clearly believed that the claimant was guilty of gross misconduct in accordance with its disciplinary policy. The claimant raised at the hearing an allegation that he may have been sacked for some other reason. However this allegation had not previously been raised by the claimant in his IT1 nor in replies to the Notice for further and better particulars served by the respondent and the tribunal heard no evidence to support this assertion.

The tribunal finds that the employer had reasonable grounds to sustain their belief that the claimant was guilty of misconduct and they carried out a reasonable investigation. Two things weighed very heavily with the tribunal in assessing whether the investigation was reasonable. Firstly, the claimant gave four different accounts of the altercation in the course of dealing with the respondent: at the email stage, the investigatory meeting, the disciplinary meeting and the appeal meeting. He gave a fifth account of the altercation at the hearing before the tribunal. The second thing which weighed very heavily with the tribunal was the demonstration of the incident which the claimant gave at the investigatory meeting which took place a matter of days after the incident. The demonstration whereby he stood up, put two hands on the complainant's head and shook it, corresponded with the demonstration given by the complainant at the same stage but varied in its degree. The claimant also admitted throughout that he had used foul language but disputed the extent of the language.

The tribunal therefore finds it reasonable for the employer to have concluded that the incident which involved shouting, bad language, touching another employee in that way in the course of an altercation, fell squarely within the examples of gross misconduct under their policy. The investigation which ensued did not, therefore, need to be as rigorous or extensive as the investigation required in a case where there is a direct conflict of evidence between two employees where the alleged aggressor flatly denies the behaviour alleged. In the circumstances in this case, it was therefore reasonable of the employer not to give the claimant the opportunity to question the complainant as the argument was essentially over the complexion to be put on the acts which had been admitted.

As it became apparent to the claimant that the demonstration which he gave at the investigatory meeting was of great importance in the hearing before the tribunal, the claimant disputed the accuracy of the record of the demonstration in the investigatory notes. The claimant first disputed the accuracy of that record in cross-examination during the hearing having not disputed the accuracy of the record during the disciplinary procedure, the appeal procedure, in preparation for the tribunal hearing nor in examination- in-chief at hearing. Indeed in examination- in-chief he confirmed the accuracy of the record of the investigatory meeting. The tribunal finds there to have been no flaw in the investigatory part of the procedures.

The tribunal was very troubled by the evidence given by the respondent in relation to the CCTV footage. There were three different versions given by three respondent's witnesses of the way that the CCTV worked and there was more than one version of the reason for the non-availability of the CCTV footage for the hearing. The claimant and his representative asked on more than one occasion to view the footage and were refused. In the tribunal's view this was a flaw in the procedure. Even if the footage showed nothing of significance there was no reason to refuse access to the claimant and his representative. The respondent had nothing to lose by showing the footage and their refusal fuelled the sense of grievance felt by the claimant and indeed raised the tribunal's suspicions as to what might have been on the footage.

The claimant invited the tribunal to conclude that the footage showed an earlier episode of horseplay between Martin Weldon and Alan Carter, the complainant. Whatever did or did not occur between those two men happened before the claimant was in the canteen. Mr Weldon had left the canteen before the altercation between the claimant and Mr Carter. The tribunal simply has no evidence as to what Mr Weldon could or could not have contributed to the investigation about what might or might not have happened in any previous incident. Mr Weldon was not called to give evidence at the tribunal and the tribunal therefore has no evidence as to whether there was an earlier incident. Even if there had been an earlier incident the tribunal's conclusion is that it was not unreasonable for the respondent to focus on the incident between the claimant and Mr Carter, particularly as the claimant admitted several key facts in relation to that incident. Whatever might or might not have happened between Mr Weldon and Mr Carter before the incident with the complainant was irrelevant to the incident concerning the complainant.

The claimant's counsel invited the tribunal to find that the statutory procedure had not been complied with and that there therefore was automatic unfair dismissal in that the claimant was not given a proper chance to state his case at the disciplinary hearing. The tribunal rejects this contention and finds that the statutory procedures were complied with. The claimant was given all relevant documentation, sufficient notice before the hearing and was given ample opportunity in the hearing with his representative to put his side of the case. Again the tribunal assessed the adequacy of the disciplinary hearing in the light of the admission by the claimant to key elements of the behaviour which fell within the categories of gross misconduct.

In summary, procedurally, the disciplinary process was not without flaws but those flaws were not sufficient to render the process unfair. The tribunal is mindful that it should not substitute its own view of the way the procedure should have gone but must assess whether the employer's behaviour fell within the band of reasonable responses of a reasonable employer. The tribunal is satisfied that the respondent's actions did fall within that band.

As regards the sanction of dismissal, the claimant's counsel invited the tribunal to conclude that the fact that the disciplinary policy stated that gross misconduct would render an employee "liable" to summary dismissal meant that the matter was not sufficiently unequivocal to make it clear that such behaviour could result in summary dismissal. As stated above, the Gomersall case upon which the claimant's counsel relies has been criticised in subsequent EAT decisions. This tribunal's task is to decide whether it was fair in the circumstances of this case for dismissal to follow where an incident is found to be an incident of gross misconduct. Again the tribunal must apply the test of whether the sanction applied was within the band of reasonable responses for a reasonable employer to make.

The tribunal finds that in this case dismissal was a fair sanction. It was unacceptable for one employee to lay hands on another employee in the context of an altercation where there was shouting, bad language and aggression. It was reasonable for the employer to treat this as a very serious matter indeed.

The tribunal therefore finds that the claimant was fairly dismissed for an act of gross misconduct and his unfair dismissal claim is therefore dismissed.

Chairman:

Date and place of hearing: 20 March, 30 April and 1 May 2008 at Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Bell v RHM Bakeries Ireland T/A Premi... [2008] NIIT 1520_07IT (25 June 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/1520_07IT.html Cite as: [2008] NIIT 1520_07IT, [2008] NIIT 1520_7IT