Cowan v Northern Ireland Railways Co Ltd  [2008] NIIT 343_07IT (08 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF:	343/07

CLAIMANT:	Clifford Cowan

RESPONDENT:	Northern Ireland Railways Company Limited

DECISION

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

Constitution of Tribunal:

Chairman:			Mr Cross		

Members:			Mr Wilkinson
				Mr Dodds	

Appearances:

The claimant was represented by Ms McKenna Barrister-at-Law, instructed by Francis Hanna, Solicitors.

The respondent was represented by Mr Ferrity Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

The Issues

1.	The claimant was one of three supervisors who were disciplined by the respondent for allowing train cleaning staff on the night shift, to leave work before the official quitting time of 6.00am.  Despite this short worked shift the cleaning staff were allegedly signed out by the supervisors at 6.00am.  Two of the supervisors confessed to allowing the cleaning staff to leave early and to falsifying the records but the claimant contended that he did not allow his staff to depart from the site until 6.00am, unless someone had specific permission.

2.	The respondents set up an investigation into all three supervisors and at the end of the investigation the claimant was dismissed for gross misconduct.  The issues for consideration by the tribunal are, whether the investigation was conducted properly and whether the subsequent disciplinary hearing and appeals there from were fair and within the parameters of the legislation and case law referred to later in this decision. Was the penalty of dismissal appropriate?

Evidence

3.	The tribunal heard evidence from Mr Moore, Mr Campbell, Mr McCully and Mr McGreevy, on behalf of the respondent and the claimant, Mr Dallas, Mr Hamilton, Mr Rafferty, Mr Faulkner and Dr Christie on behalf of the claimant. 

Findings of Fact

4.	The respondent had a train cleaning contract with Maybin Limited at the time of these events.  The Maybin employees were under the day to day supervision of Andrew Bannister.  The cleaning of the trains was supervised for the respondents by three supervisors working in different locations and on different shifts.  They were Mr Bates, Mr McConville and the claimant.  Mr Stephen Moore, the Train Presentation Manager of the respondent, was the supervisor’s line manager.

5.	On the night of 1st and 2nd February 2006 it became apparent, first to Mr Bannister and then to Mr Moore that Maybin cleaning staff were missing from the respondent’s York Road and Fortwilliam depots.  Mr Bannister had arrived at 05.20 hours to find the staff had left before their proper departure time of 06.00 hours.  This resulted in the Maybin staff being questioned by Mr Bannister and the supervisors being interviewed by Mr Moore. 

6.	Mr Bates told Mr Moore that there was a practice, that had been going on for a lengthy period of time, that certain cleaners would leave early one night and others would go early the next.  The time sheets however would show that all cleaning staff left at 06.00 hours, thus the cleaners would be paid for the entire shift.

7.	Mr Bates was interviewed on 3 occasions by Mr Moore and subsequently wrote to the respondent, in which letter he admitted the offence of allowing the staff to leave early and yet being signed out at the end of the shift.  He also, in one interview, said that he thought that the other supervisors knew that this went on, although he added that this was “hearsay”.  Mr Bates was dismissed for gross misconduct.  He appealed and the appeal was heard by Mr Campbell who reinstated him but at a lower grade.

8.	Mr McConville was also interviewed on numerous occasions but denied the matters that were put to him.  At a disciplinary hearing Mr Moore dismissed him for gross misconduct.  Mr McConville then appealed to an appeal again heard by Mr Campbell, the respondent’s Fleet Engineering Manager and Mr Moore’s line manager.  At this appeal Mr McConville changed his account of events and confessed to the offence.  He also said that all 3 supervisors were involved in the arrangement that allowed the staff to leave early.  The appeal resulted in Mr McConville being allowed to remain in the employ of the respondent at a lower grade.

9.	The claimant was also interviewed on a number of occasions by Mr Moore.  He denied any wrongdoing and said that no cleaners left early on his shifts, unless they were given permission for a particular reason.  The claimant denied that the cleaners were leaving early, despite the fact that Mr Moore told him that the cleaner’s cars were seen on CCTV leaving York Road in the early hours of the mornings and not returning.  During the interview process the claimant failed to suggest that the cleaners might have been going up to the Fortwilliam area, to clean trains that were at the refuelling line, or at a place known as “the Shunt”. 

10.	A disciplinary hearing was arranged to deal with the charge of gross misconduct against the claimant.  The charge was, that “you knowingly let contract staff be absent from duty, falsification of company records (timesheets) and serious neglect of duty.  ”Despite the fact that he had asked for and received copies of the Bates and McConville appeal hearing notes, the Maybin employee interview notes and details of the CCTV log of vehicle movements, the claimant failed to attend the hearing on the appointed day and so Mr Moore dealt with the charge in his absence and summarily dismissed the claimant for gross misconduct.  The evidence against the claimant was in the interviews with Bates and McConville, the CCTV footage on the days under investigation and the interviews that had been conducted by Mr Bannister with some of his Maybin staff and which interview notes had been made available to the respondents.  Some of these interviewees had suggested, that the reason why their cars were seen on the CCTV as leaving early, was that they were going to the Shunt.

11.	The claimant appealed the decision of Mr Moore and this appeal was heard by Mr McCully, the respondent’s Personnel Manager and Mr Murton the Standards and Compliance Manager.  This was because Mr Campbell had already heard the appeals of Bates and McConville.  The first hearing was on 14 September 2006. The appeal then adjourned until 20 November, for further enquires to be undertaken by the panel.  It was at this hearing, more than nine months after the incidents and the commencement of the enquires, that the claimant first mentioned the possibility, that the cleaners may have been leaving the yard at York Road, under the eye of the CCTV camera, not to go home early, but to drive to Forwilliam to clean trains waiting at Jennymount Street (near the Shunt).  He went on to suggest, that the trains would move on into York Road and the cleaners would then clock out at 06.00 hours and walk back to collect their cars and drive home, without going back into the yard and being picked up by the CCTV.  This appeal was dismissed.

12.	The claimant then had a final appeal to the General Manager of Rail Services, Mr McGreevy.  This appeal was also unsuccessful although Mr McGreevy made some further enquires of his own before making his ruling.  For instance he interviewed the gate keeper at York Road to satisfy himself on the recognition of vehicles on the CCTV film.  Mr McGreevy said that he was satisfied with the penalty of dismissal for this offence as the claimant had occupied a position of trust requiring a high standard of integrity.

13.	The claimant was employed under a contract of employment which stated, that for certain employment offences, the penalty would, on proof of guilt, be summary dismissal.  These are referred to as gross misconduct and include, fraudulent time keeping (eg clocking offences), falsification of company records, fraud and serious neglect of duty resulting in loss or damage to persons or property.  Up until these events the claimant had a clean disciplinary record with the respondent.

The Law

14.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996, (hereinafter called “the 1996 Order”) an employee has a right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order states, that the onus is on the employer to show that the reason (or the principal reason if there are more than one reason), for the dismissal falls within Article 130(2), or is for some other substantial reason.  In this case the respondent claims that the reason for the dismissal is the conduct of the claimant.  This reason falls within Article 130(2)(b).  When the respondent has discharged this requirement, then under Article 130(4) “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.”

The burden of proof in this regard is neutral and the tribunal has to consider all the evidence of the parties, to ascertain whether the disciplinary enquires and hearings were conducted in a fair manner toward the claimant.

15.	The leading case, which assists the tribunal in cases of this nature, is British Home Stores v Burchell 1978 [IRLR] 379, in which the EAT laid down the test of fairness in a case of investigation into the employees conduct.  This test, which has been followed by courts and tribunals, is as follows:-

“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 thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.”

Decision of the tribunal

16.	The tribunal holds that the respondent has discharged the onus on it, of proving that the reason for the dismissal of the claimant was the conduct of the claimant.  The respondent had information concerning the allegations of the claimant’s involvement in the cleaner’s early leaving, from his two fellow supervisors and from the cleaner’s evidence given to Mr Bannister.  The respondents also had the evidence of the CCTV camera.  This being the view of the tribunal, it then turned its attention to the guidance laid down in the Burchell case.

17.	The tribunal hold that the respondent, through its senior management, did believe that the claimant was guilty of the offences which were laid against him.  This is clear from the reasoned written decisions of Mr Moore at the initial disciplinary hearing and Messrs McCully, Murton and McGreevy, at the two subsequent appeals.

18.	Did the respondent’s senior officers have reasonable grounds for this belief?  The tribunal hold that they did, as all of them had taken considerable trouble to acquaint themselves with the facts and geography of the matter under investigation.

19.	Did the respondent carry out as full an investigation into these events, as was reasonable in all the circumstances of the case?  The claimant made much of the fact that the respondent did not itself interview the Maybin cleaners, as to why they were seen leaving early.  He also criticised the quality of the CCTV pictures, claiming that it was not possible to identify individual vehicles from the pictures.

20.	The tribunal hold that the failure to interview the cleaners was understandable.  They were the employees of another company and disciplinary matters for those cleaners rested firmly with Maybin.  The respondent wanted to keep the proper contractual protocol with its business partner.  Furthermore the respondent had seen the records of the interviews with the cleaners and could form its own view on the evidence of the cleaners.  The tribunal was unimpressed with the cleaners interview notes which were very sketchy and seemed to show no depth of interrogation to get to the truth of the matter of the early leaving. 

21.	The tribunal did hear evidence from three of the cleaners who stated that they were in the habit of cleaning trains as they progressed from the Shunt toward York Road. They testified that they would, on such occasions take their cleaning materials to the Shunt area at Fortwilliam in their own cars and then walk back after clocking off time to retrieve the cars.  This explained why cars were seen leaving York Road early and not returning.  The tribunal took this evidence into account.  However this evidence was not available to the original enquiry conducted by Mr Moore, as the particular point was not raised with him by any of the supervisors under investigation by him.  It may well be that some of the early departures could be explained by this pattern of working, but the tribunal hold that the officers hearing the appeal were not acting unreasonably in viewing the late appearance of this reason as unconvincing.

22.	The tribunal having viewed some of the CCTV pictures, which were produced as stills, hold that a person familiar with the vehicles in question , such as Mr Moore or the gate keeper at York Road, would be able to identify most of the vehicles that regularly parked in the yard, such as those of  the cleaners.

23.	The claimant also argued that the respondent should not penalise him on the evidence of colleagues, who themselves were guilty of the same offence as was being levelled at him.  These men, he alleged, were biased against him and tried to implicate him as the instigator of the early leaving.  Consequently they should not be relied upon to give truthful evidence.  The tribunal hold that Mr Moore was justified in using the evidence of the two informants, Bates and McConville as they set out the facts of the offence alleged against the claimant and allowed Mr Moore to follow up other evidence which corroborated that of the informers.  At the appeal stage the evidence of McConville was discounted and not taken into account, as it was felt by the officers hearing the appeals that it was flawed.  The evidence of Mr Bates was still considered by the two appeals.  The tribunal having read this evidence agree with the respondent that it had a ring of truth, as it came out piecemeal and there was no attempt to try to pass blame away from himself.  He admitted what he had done and there was no attempt to suggest that the cleaners were going up to the shunt to clean trains when they were seen leaving. So far as he was concerned they were going home.

24.	Having considered the evidence and the submissions of the claimant’s counsel, which she kindly gave to the tribunal in writing, the tribunal hold that the respondent has discharged the duty of proving that the enquiry into the events in dispute was fair and reasonable and in accordance with the Burchell guidelines.  The tribunal hold that the very thorough investigation carried out by the respondent at all stages of the process was, appropriate and fair to the claimant, who could be criticised for refusing to attend and explain his side of the case at the initial disciplinary hearing.  The reason, which he later offered for the cleaners leaving early, was diluted, in the eyes of the subsequent appeals and in the eyes of this tribunal, by its late appearance as the story unfolded. 

25.	Having held that the enquiry was fair and that the claimant was reasonably and properly implicated in this fraud, the tribunal hold that the penalty of summary dismissal for gross misconduct, as laid down in the respondent’s Disciplinary Procedure, is appropriate.

Chairman:

Date and place of hearing:	7-14 &16 January 2008, Belfast.

Date decision recorded in register and issued to parties: