THE INDUSTRIAL TRIBUNALS

CASE REF:  00204/09

CLAIMANT:			Michael Gillen

RESPONDENT:		Paul Gillen

DECISION

The unanimous decision of the tribunal is that the claim be dismissed.

Constitution of Tribunal:

Chairman:		Mr M Davey

Members: 		Mr P McKenna 
Mrs Gilmartin

Appearances:
The claimant appeared in person.
The respondent was represented by Mr G Daly, of Francis Hanna & Co, Solicitors.

REASONS

 1.	The tribunal found the following facts.  The claimant was employed as a bar/storeman by the respondent.  On Sunday 7 September 2008 the respondent received information that there had been an incident in the bar in which the claimant, while off duty, had struck a customer.  The respondent took no action that evening but the following morning he went to the bar at about 8.30 am when he spoke to the claimant.  The respondent put it to the claimant that there had been an incident the previous night in which he had struck a customer and had drawn blood from the customer’s head.  The claimant admitted that this had occurred.  The respondent, following this admission, dismissed the claimant summarily telling him he could no longer have him in his employment.  The claimant asked if he could do store work in the mornings and the respondent indicated he could not keep him in the bar.  The following week, on Monday 15 September, the claimant presented himself at the bar again claiming to be reporting for work.  The respondent told him again that there was no job for him to which the claimant responded that he would be taking action as there was a way for things to happen and that procedures had to be observed.  The claimant was asked to leave the bar.  On 13 October the claimant wrote to the respondent seeking to lodge a grievance arising out of the events of 8 and 15 September.  The respondent replied in a letter received on 24 October confirming that as a result of the claimant’s conduct on 7 September when he assaulted a customer in the bar and subsequently admitted to that assault he had terminated the claimant’s employment without notice with effect from 8 September.  The respondent further stated that he was treating the claimant’s letter of 13 October as an appeal and fixed a time for the hearing of the appeal.  The claimant responded reiterating his wish for a grievance hearing to be held and referring to his alleged dismissal.  He indicated that so far as he was concerned he had been informed that he should take a few days off until the incident cooled down.  The respondent replied by letter of 6 November confirming the dismissal and denying the claimant’s version of events.  He indicated that an appeal hearing would take place.  The appeal hearing subsequently did take place with the claimant being accompanied in the usual and approved manner.  At the hearing the claimant again admitted to the assault but denied being sacked stating, as he had previously stated in a letter, that he was told to take a few days off.  The upshot of the appeal was that the dismissal was confirmed.

 2.	Most of these facts were not in dispute.  However, there were two matters on which there was considerable divergence between the evidence of the claimant and the respondent.  The first issue was related to the original incident itself and to the claimant’s attitude to it.  The respondent’s evidence is quite clear.  He stated that he taxed the claimant with the incident and the claimant admitted it.  The claimant said that he had never admitted that he had hit the customer.  The claimant’s evidence as to whether or not the actual assault had been put to him was somewhat equivocal but he did concede that it had been put to him that he had hit the customer.  He had admitted to some argy-bargy.  In describing the incident himself he said that he could not say whether he had hit the customer, that there had been no physical abuse, that he wasn’t aware of having hit him.  The claimant’s evidence to the tribunal on these matters was not convincing and the tribunal noted that in the claimant’s originating claim form and the detailed statement contained there, and in the correspondence between the parties in which the matter of assault had been specifically raised, there had never been any denial that he had assaulted the customer.

	The other issue on which there was a difference between the two parties was as to whether or not the claimant had been dismissed on 8 September.  The respondent said that he had dismissed him and made himself clear.  The claimant said that he had merely been asked to take some time off until the matter cooled off; that when he presented himself for work a week later he had complained that a member of staff had been telling customers that he was going to be sacked; that if this was so there were proper ways of doing it; that at this point he was ordered off the premises; and that the first time he had become aware that he had actually been sacked was when he received the letter on 24 October making this clear.  

	The tribunal did not find the claimant’s evidence as to these matters convincing  and his description of being unaware that he had been dismissed when he was not presenting himself for work nor getting paid seemed inherently unlikely.  The tribunal preferred the evidence of the respondent.  

 3.	The claimant’s case was, he said, based on the respondent’s failure to comply with the statutory procedures or with fair procedures generally.  He was expecting an investigation to take place with a report of the investigation being made available to him and a disciplinary hearing to follow.  He was then expecting to be afforded the chance of appeal.  

	The tribunal has found that the claimant admitted that he had been involved in assaulting a customer in the bar.  In the tribunal’s view there was no need for any further investigation.  The next question is whether dismissal would fall within the range of reasonable responses to such an offence.  The tribunal considers that it would.  Although the claimant was not on duty at the time of the assault it did take place within the premises where he normally worked, premises which were patronised by customers from the local area.  Such conduct would clearly be likely to affect him in the carrying out of his work and to affect the business in which he was employed.  In the tribunal’s view therefore it could be regarded as cause for dismissal.  It was a serious matter; fighting or physical assault was expressed to be gross misconduct in the code of conduct prescribed for employees of the respondent and summary dismissal fell within the range of reasonable responses which an employer might make.  The claimant was afforded the opportunity to appeal and he took that opportunity.  Accordingly, the tribunal finds that the dismissal was not unfair.

	The next question for the tribunal was whether the dismissal had been rendered automatically unfair by any failure to follow the statutory procedures.  The statutory procedures are not intended to prohibit all possibility of summary dismissal.  Paragraph 3(2) of the Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004 provides that in cases where an employer dismisses an employee by reason of conduct without notice, and the dismissal occurs at the time the employer became aware of the conduct or immediately thereafter and the employer was entitled to dismiss the employee without notice and it was reasonable for him to do so the modified procedures apply.  On considering the legislation and the regulations no specific time scale for the operation of the standard procedures seems to be laid down the only provision being that they should be largely carried out before any proceedings take place.  In this case the modified procedures require that the employer must set out in writing the nature of the alleged misconduct which has led to the dismissal, the basis for thinking at the time of the dismissal that the employee was guilty of the misconduct and the employee’s right to appeal.  The letter received by the claimant on 24 October complies with these requirements and the claimant quite clearly received it.  Indeed he exercised his rights of appeal albeit unsuccessfully.  

	The only other issue which is raised before the tribunal on which it is necessary to make any comment is the demand made from time to time by the respondent for a grievance hearing.  On the basis of the finding of fact made by the tribunal the nature of the grievance raised by the claimant was that he had been dismissed.  Under the terms of Regulation 6 and regulations recently cited the grievance procedures do not apply in such circumstances. 

 4.	For the reasons set out above the unanimous decision of the tribunal is the application be dismissed.

Chairman:

Date and place of hearing:	4 June 2009, Belfast

Date decision recorded in register and issued to parties: