THE INDUSTRIAL TRIBUNALS

CASE REF: 6503/09

CLAIMANT:			William John McKean

RESPONDENT:	Woodside Motorfreight Limited

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.  The Respondent acted in breach of contract when it dismissed the claimant with one week notice as the claimant was entitled to five weeks notice or pay in lieu of notice.  The respondent is ordered to pay to the claimant the sum of £2,200.00. 

Constitution of Tribunal:
Chairman:			Ms. M Sheehan
Members:			Mr. D Acheson
				Ms. F Graham

Appearances:
The claimant was unrepresented and appeared at hearing on his own behalf.
The respondent was represented by Ms Rachel Best, Barrister-at-Law, instructed by Carson McDowell Solicitors
Preliminary Matters

 1.	At the outset, the tribunal sought to clarify the issues between the parties including whether there was an outstanding issue over the notice pay discharged by the respondent to the claimant. It was confirmed that no additional notice pay had been made to the claimant between the submission of his claim and the date of hearing.

Sources of Evidence

 2.	The claimant gave evidence on his own behalf.  The following gave evidence on behalf of the respondent: Mr Robert Woodside and Mr Tim Woodside. 

The Claim and the Defence

 3.	The claimant claimed that his dismissal from his employment as a HGV driver with the respondent on 28 May 2009 was unfair. The respondent accepted the claimant was dismissed with one weeks notice for misconduct but denied the dismissal was unfair in all the circumstances

Issues

 4.	The issues for the tribunal to determine were:

(a)	Whether the respondent had a genuine belief in the alleged misconduct, having carried out a fair investigation and disciplinary procedure, including appeal and that dismissal fell within the band of reasonable responses available to the respondent.

(b)	Whether the failure of the respondent to dismiss the claimant with five weeks notice as required under the disciplinary procedure, as opposed to the one weeks notice given, can make the dismissal unfair or whether it falls to be considered solely as breach of contract.

(c)	Whether any claim for breach of contract can be determined by the tribunal. 

The following facts were found by the tribunal on a balance of probabilities.

The Facts

 5.	The claimant was employed by the respondent as a HGV driver from the 29 September 2003 until the 4 June 2009. He did not receive any training until some weeks after the commencement of his employment as the trainer Mr Neil Thompson was on holiday. As Mr Thompson was not called to give evidence and there was no documentation available to challenge the evidence of the claimant, the tribunal was satisfied that no specific instruction was given to the claimant at the outset of his employment regarding procedures or process for the completion of documentation and records for delivery and collections assigned to him.  

 6.	The claimant was furnished with a written statement of his terms and conditions of employment. It referred to a company disciplinary procedure and company rules. It was a detailed document that indicated various levels of action and the length of time a sanction could lie on an employee’s record. There were core standards of behaviour and performance set out – which included “an acceptable level of performance necessary for effective conduct of duties; conforming with business or statutory rules or agreements applicable to your work. Failure to meet requirements expected of you will be regarded as a breach of discipline.”

 7.	Examples of Gross misconduct were provided in the disciplinary policy including a refusal to carry out a reasonable management instruction or follow procedures, and serious negligence causing unacceptable loss damage or injury. The disciplinary policy set out that minor breach of discipline would be dealt with informally by counselling. Formal discipline involved an investigatory meeting and the investigating manager may instigate formal disciplinary procedure. A letter would be issued which “will inform you of the alleged breach of discipline or conduct which was being considered” – with a minimum of 48 hours notice. The policy made clear that the Chairperson of the disciplinary hearing will take into account the current disciplinary record but not any previous sanctions that have expired unless a similar or related offence has been recorded in the intervening period.

 8.	Disciplinary sanctions available were identified as four stages: - Stage 1, verbal warning for minor breach of discipline “which will be disregarded for disciplinary purposes after 6 months”. Stage 2, first written warning which “will be disregarded after 12 months”; Stage 3, Final written warning for “offence sufficiently serious to warrant that penalty which will be disregarded after 12 months; and Stage 4 – dismissal with notice or summary dismissal. Stage 4 was to be utilised where performance was unsatisfactory following a final written warning resulting in dismissal with notice or pay in lieu of notice. Summary dismissal would occur in all cases of gross misconduct. The policy stated that in all instances where it is “alleged you have committed an act of gross misconduct you will be suspended on full pay pending investigation. The nature of the misconduct, the evidence for the decision and the right to appeal will be given to the employee in writing. Appeal must be made within five days”. 

 9.	The Appeal procedure was detailed in the policy document – an account of the disciplinary hearing and evidence will be made available to the manager hearing your appeal. The decision of the appeal hearing may be confirmation, reduction or cancellation of the sanction.

10.	The claimant’s disciplinary record showed that he had received a verbal warning on the 6 June 2008 which resulted in a notice issued to the claimant advising that it would “remain on his record for 12 months”. This was contrary to the respondents own disciplinary policy which stated unambiguously that such a sanction would only remain on record for 6 months. No explanation for this breach of the respondents owns procedure was available at hearing from either witness who appeared before the tribunal. While the claimant disputed receiving such a verbal warning and denied that it was his initials on the personnel form, the tribunal was satisfied that a verbal warning had been issued.

11.	On 22 July 2008 the respondent issued a memo to all drivers reminding them of procedure concerning Proof of Delivery (known as POD) when collecting a car “from a dealer”. The POD was required to be filled out completely, especially mileages and damage. “Failure to comply …will result in disciplinary action being taken…”

12.	No audit process was established by the respondents to ascertain whether drivers did in fact comply with this instruction.

13.	On 21 January 2009 the respondent issued a further instruction to drivers concerning delivery procedures at dealers “with a view to minimising theft of vehicles”. The document set out a nine step procedure. It stated that “depending on the location of the dealer and their existing checking procedures that all of the following (i.e. nine steps) may not have to be carried out”. The first three steps involved reporting to a member of staff of the relevant dealer to ascertain if and when vehicles should be parked; to await a representative of the dealer arriving and if after 10-15 minutes no one is available to call the respondents traffic office; who will contact the dealer”. It appears from the procedure that no off loading was to commence without the driver having contacted the respondent’s traffic officer – when no representative of the dealer had arrived to commence the off loading process. While steps 6 and 7 of the procedure anticipate that a driver may be out of sight of vehicles off loaded – a signature and details of any discrepancies “must be noted on the POD and reported to the office immediately or on return at the end of duty. Failure to comply could lead to disciplinary action”.

14.	In October 2008 the respondent training record shows the claimant was assessed re use of car transporter type Rolfo. This included an element of vehicle care – damage prevention/awareness/inspection. The record shows that he was issued with certain clothing equipment and documentation- itemised as POD book, defect book.”

15.	On 11 February 2009 the claimant was involved in damage to a vehicle. No disciplinary action was taken. On 20 February 2009 the claimant was involved in another incident when damage was caused to a vehicle of approximately £3,000. Despite the disciplinary policy saying that all disciplinary issues would be investigated and dealt with “as soon as reasonably practicable” – the disciplinary hearing in relation to this incident was not held till the 27 April 2009, with the claimant being notified of the outcome by letter dated 28 April 2009. The claimant’s conduct was classified as major misconduct and a final written warning was issued. The claimant did not appeal.

16.	On 29 April 2009 the claimant was detailed to collect a batch of used vehicles from the Port of Larne. The vehicles were to be delivered to Charles Hurst on Boucher Road. While the claimant in completing the POD documentation had noted details of the condition of the vehicles he failed to obtain a signature from any member of P&O staff before leaving the port. The only signature recorded on the POD was from a Charles Hurst staff member on delivery.

17.	There was much dispute at the tribunal hearing about who did what or was contacted by the claimant on the morning in question – 29 April 2009. While the respondent witnesses at hearing claimed that relevant witnesses such as Andrew Mawhinney and Neil Thompson had been spoken to by them in the course of their disciplinary and appeal procedure, neither manager had a note or record of that contact or conversation. At the same time the claimant was noted to have given different times on various occasions to the respondent as to when he contacted Andrew Mawhinney (a member of staff based in the respondent’s office) and what equipment he used for that contact. The tribunal found the email sent by Sam Hill to N Thompson, on 1 May 2009 at 15.14, contained in the agreed booklet of documents, the most helpful evidence on this issue. This recorded that the claimant advised him late evening on 29 April 2009 that “there was no one on the quay to note the damage, he did not notify the office for advice or take the load up to Redlands, (the location of the P&O office at the Larne port) he believed he was only expected to collect his paperwork, keys and passes at Redlands and proceed with his load and that he had documented the damage…”.  Neil Thompson appears to make Tim Woodside aware of this incident by email on 7 May 2009, the date when another incident has occurred. It appears prior to that date neither Neil Thompson nor Sam Hill had considered it necessary to refer the 29 April incident to Tim Woodside.

18.	On 7 May 2009 the claimant was tasked to deliver a load of motor vehicles to Donnelly DKT Londonderry from DKT Mullusk. On this occasion the POD was signed on collection with details of certain damage noted on the POD. However the POD signed on delivery contains details of damage to vehicles not previously noted as being damaged on collection. The delivery POD also had words “Others not yet checked”. Subsequently the dealer sent a further copy of the relevant POD (No 02726) with additional details of damage noted for which they were seeking to hold the respondent company responsible. 

19.	On 14 May 2009 Sam Hill (the respondent company’s claims investigator) sent a report to Tim Woodside about a dispute over the damage to the vehicles which were delivered to DKT Londonderry which the dealer was not accepting responsibility for. There was no independent CCTV available to be viewed but what was clear at hearing – and at the time Sam Hill carried out his investigation – is that the claimant was both inaccurate in the explanation given to Sam Hill re the information he had recorded and when that information was recorded – and that the claimant had not fully complied with the respondent’s procedures, in particular the instruction issued in January 2009. Sam Neill submitted a report on this incident by email dated 14 May 2009.

20.	Sam Neill’s email report appeared thorough and recorded explanations given by the claimant for his actions. Once again certain elements of the explanation tendered by the claimant were not borne out by the documentation that had been completed at the relevant time. Most important the claimant made no claim to have contacted anyone in the traffic office to report the damage at Campsie – as Sam Neill records “No prior notice was ever given to this office about any incident at Campsie”. 

21.	By letter dated 25 May 2009 the claimant was made aware that he was to be disciplined for two allegations of misconduct – failing to notice damage when inspecting vehicles during loading or unloading and failing to follow proper procedures insofar as communicating with the traffic office was not carried out. No dates or details of the location were provided in this letter – but documentation was enclosed with the letter including the POD documents relating to the 29 April and 7 May 2009 incidents, together with a copy of the disciplinary policy. The initial view of the alleged misconduct was stated in the letter to amount to “gross misconduct”. However there was no suspension of the claimant on pay as required by the respondent’s own procedure – “If it is alleged you are guilty of gross misconduct you will be suspended on full pay pending an investigation”.

22.	A disciplinary hearing was held on 28 May 2009. The disciplinary hearing notes were available to the tribunal and appeared to address all relevant and salient points with the claimant. The tribunal noted that the claimant’s version of events given at the disciplinary hearing was somewhat different from that provided or recorded in Sam Neill’s emails. The conclusion of the disciplinary hearing was “since final written warning received Billy has not improved at all – has actually deteriorated with performance”. Tim Woodside who was chair for the disciplinary hearing concluded that the misconduct was “major misconduct – for which the penalty would be summary dismissal with one weeks notice”. Tim Woodside formed a view that the claimant was on a final written warning and his performance since being issued with that penalty – failure to adhere to procedures involved in reporting damage – meant that dismissal with notice was appropriate. In cross examination Tim Woodside disclosed that in the past three years he had one other driver on a final written warning who fell to be disciplined and the “options available are to extend final written warning and removal from the bonus scheme for 3 to 6 months”. This penalty of an extended final written warning is not referred to in the respondent’s policy document. Tim Woodside claimed the claimant was not considered for this extended final written warning as he was being disciplined for failure to adhere to procedures – and not just causing damage. He did not consider the situation of the other driver to be the same as the claimants. The penalty imposed on the claimant – dismissal with one weeks notice – was not open to the disciplinary panel. The penalty available was dismissal with notice or pay in lieu of notice. The chair of the disciplinary hearing did not either look at or make himself cognisant of the company's procedure. 

23.	The claimant lodged an appeal by letter dated 2 June 2009 on the ground that he had followed all procedures and had been dedicated to the company. There was a delay in the respondent acknowledging the appeal notification due to the relevant personnel – Robert Woodside – being on holiday. However a date for appeal was fixed as 15 June 2009. The claimant attended unaccompanied. The crux of the claimant’s appeal appeared to be the alleged conversation he had with Andrew in the traffic office before leaving Larne port on 29 April 2009 – “to report the damage and was told to go on”. The crux of the appeal re the 7 May 2009 incident appeared to be that he had been unable to locate the member of staff who was responsible for marking up the vehicles delivered and had gone on to start his next task – the collection of motability vehicles from the same dealer. He claimed he had reported the damage to Derek in the transport office. The claimant’s last ground of appeal was he considered he was being treated differently to other staff that had caused more damage than he did in his time with the company, who had also been on final written warning and was not dismissed despite damaging a further vehicle while subject to the final written warning. 

24.	Robert Woodside undertook to “take a look at this case” and would get a response to him in a couple of days. Email evidence shows that Robert Woodside did indeed seek information to support the movement of the claimant’s vehicle on the 29 April 2009 and contact between him and the office staff. At hearing the witness also claimed to have spoken to Andrew Mawhinney – but no note or record was made of this conversation although there is reference to such a conversation in the letter affirming the decision to dismiss the claimant with one weeks notice. It would not appear that any enquiry was made to confirm that no contact was made by the claimant with the traffic office on the 7 May 2009 – all the email exchanges appeared to be concerned with the 29 April 2009 incident. 

25.	An enquiry was made by Robert Woodside with Tim Woodside regarding other driver’s disciplinary record as evidenced in an email sent to him. The witness did not consider it necessary to actually view the personnel records or files of the drivers. Tim Woodside indicated to him that no other driver was on a final written warning when they did additional damage. The claimant had alleged at appeal that the respondent took account of the claimant’s previous disciplinary offences in reaching its decision but that other drivers had been treated differently than the claimant. Tim Woodside confirmed in his evidence at hearing that one other driver on a final written warning having caused damage to property of the company was not dismissed on being disciplined but instead had his final written warning extended and suffered a loss of bonus for a number of months. This information was not provided to Robert Woodside by Tim Woodside when enquiry was made during the appeal process. Further as no independent check of personnel files was carried out the circumstances of this driver remained unknown to the appellate authority. In the letter dismissing the appeal and affirming the decision to dismiss Robert Woodside indicates this inaccurate information but goes on to say “I am also satisfied that proper reporting procedure was followed by the drivers you named in each of these cases”. 

26.	Neither of the respondent’s witnesses had received any training in the holding or conducting of disciplinary or appeal procedures. The respondent company was one of a group of Woodside companies – for which there were 7 directors – four were members of the Woodside family and 3 who were not group directors – but just a director in an individual company. The company accountant was the only group director who was not a Woodside family member. The Woodside group appear to subscribe to a Human Resource service who they expect to guide and clarify with them what to do in disciplinary circumstances.   

27.	It is clear the respondent in all of their disciplinary dealings with this claimant failed to comply with their disciplinary policy – regarding penalty to be imposed and the timescale within which matters should be addressed. A verbal warning was imposed to remain on the claimant’s record for 12 months when the policy clearly stated that such a penalty should only remain on record for 6 months. While the incident that led to the Final written warning occurred on 20 February 2009 and was investigated promptly by the claims administrator Sam Hill, no disciplinary action was taken until 27 April 2009. This did not appear to comply with “as soon as reasonably practicable” as stated in the disciplinary policy. The letter confirming the final written warning did not comply with page 2 of the respondent’s disciplinary policy  as “no improvement required and action taken to achieve it or consequences of failure to achieve the specified improvement” was contained in the letter despite the policy indicating that an employee would be advised of such matters.  

28.	It appeared to this tribunal that the Human Resource service used by the respondent must have failed to advise the respondent to take notes or records of relevant facts from witnesses who played a part in their decision making and to ensure that the penalty imposed fell within their disciplinary policy. There was a complete failure of either witness on behalf of the respondent to observe that the appropriate penalty in accordance with their procedure, on the basis of the conclusion they reached, was dismissal with five weeks notice – reflecting one week for each complete year of service. 

The Law

29.	The claimant who was representing himself and not qualified in law made no submissions. Counsel on behalf of the respondent made brief oral submission to the effect that the employer says the claimant was dismissed for conduct or for some other substantial reason. The claimant was on a final written warning and breached the respondent’s procedures on two further occasions. All statutory requirements were complied with. The tribunal were referred to Cannum v Mid Glamorgan (1978) IRLR 215, British Home Stores v Burchell and HSBC v Madden, and Jones v Iceland Stores. It was submitted the dismissal fell within the band of reasonable responses. In relation to the penalty imposed it was submitted that the incorrect notice was a matter of breach of contract, that no allegation of breach of contract was made in the claimant’s application and therefore the tribunal are not entitled to consider same. 

30.	The first issue for the tribunal is to determine whether the dismissal was fair or unfair in accordance with Article 130 of the Employment Rights (Northern Ireland) Order 1996.  It is for the employer to show the reason for the dismissal, and that it is a potentially fair reason within Article 130(2) of the Order.  In this case the respondent at hearing, other than in counsel’s submission, and in their response filed with the tribunal office relied solely on the claimant’s alleged misconduct.

31.	By 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 the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

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

32.	In Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by Section 57(3) of the [Employment Protection (Consolidation) Act 1978] (the equivalent provision to Article 130 of the Employment Rights (Northern Ireland) Order 1996) is as follows:-

(1)	the starting point should always be the words of Section 47 themselves;

(2)	in applying the section 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 to be fair;

(3)	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;

(4)	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 takes another;

(5)	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.

33.	In the context of a misconduct case, Arnold J in British Home Stores  v  Burchell [1980] ICR 303 stated:-

“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 (usually, though not necessary dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  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, at any rate at the final 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.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’ as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’.  The test and the test all the way through, is reasonableness, and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.

34.	Article 130A(2) of the 1996 Order provides that if the employer does not comply with the requirements of the statutory dismissal and disciplinary procedure set out in the Employment (Northern Ireland) Order 2003 the dismissal will be automatically unfair.  Insofar as is material, Part 1 of Schedule 1 of the Order provides:-

	“Step 1 : statement of grounds for action and invitation to meeting

1(1)	The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 (2)	The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2 : Meeting

2(1)	The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

 (2)	The meeting must not take place unless:-

(a)	the employer has informed the employee what the basis was for including in the statement under Paragraph 1(1) the ground or grounds given in it; and

(b)	the employee has had a reasonable opportunity to consider his response to that information.

 (3)	The employee must take all reasonable steps to attend the meeting.

 (4)	After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

35.	Even if the dismissal is not automatically unfair, Article 130A (2) of the 1996 Order provides that if there has been any failure by the employer to follow any other procedure that ought to be followed, the dismissal may nevertheless be unfair.  However, if the employer establishes that he would have dismissed the employee even if he had followed a fair procedure, then procedural unfairness, of itself, is not a reason to hold the dismissal to be unfair.  (Alexander  v  Brigden Enterprises Limited [2006] IRLR 422; Kelly-Madden  v  Manor Surgery [2006] EAT/0105/06; Software 2000  v  Andrews [2007] IRLR 568.)

Conclusions 

36.	The tribunal found the guidance given in the case of British Home Stores v Burchell of assistance and applying it to the facts of this case concluded firstly, there was evidence that could and did lead the respondent to firmly believe that the claimant was aware of the correct procedure to follow on POD documentation, that the procedure had not been followed which had left the respondent exposed to financial liability thereby establishing the guilt of the claimant in the view of the respondent.  Secondly there must be reasonable grounds for this belief. The emails from Sam Neill who investigated both incidents at the relevant time recorded events as described to him by the claimant. The claimant at subsequent disciplinary and appeal hearing deviated from those explanations – but any enquiry made by the respondent witnesses did not find evidence supportive of the claimant’s revised version of events. On this basis, the tribunal considers the respondent had reasonable grounds for believing that the claimant was guilty of the misconduct alleged. Finally, this belief in the guilt of the claimant must have been reached after a reasonable investigation into all the circumstances of the case.  The tribunal considers there were some deficiencies as to how the respondent carried out parts of the investigation and in particular the appeal process. 

37.	The tribunal took note that the claimant having been issued with a final written warning by letter dated 28 April 2009, during the delivery on 29 April 2009 and on the 7 May 2009 failed to adhere to procedure which had been circulated by the respondent. There was a clear delay of nearly a week before any action was initiated in respect of the April incident. The respondents took a decision not to call Mr Thompson, Mr Mawhinney or Mr Hill to give evidence despite the claimants requesting same. No explanation was provided for the delay if the breach was considered material by the respondent. It was accepted by the respondent that no audit system, random or otherwise, was operated to assess whether drivers complied with POD procedures. The tribunal was in no doubt that the respondent viewed the incident at Campsie as the more serious breach, particularly the addition of words leaving the respondent vulnerable to additional claims for damage not agreed before the driver left the dealer’s premises. This later incident caused the earlier breach in late April to be brought to senior management’s attention. 

38.	It was difficult for the tribunal to understand how the information provided by Tim Woodside to Robert Woodside during the appeal process failed to be fully accurate. Tim Woodside on the basis of his evidence at hearing failed to provide to his brother who was considering the claimant’s appeal details of a driver who while on a final written warning committed another act of misconduct – but was disciplined in a totally different fashion and by way of a penalty that is not mentioned in the respondent’s disciplinary policy. The tribunal had to ask itself were the continual failures of this company to adhere to its own procedures simple incompetence or deliberate.  There was no doubt that Robert Woodside had exercised a certain amount of diligence to check out the evidence to support the view formed during earlier hearings as to the chronology of events on the morning of the 29 April 2009 between the claimant and staff in the traffic office. It was puzzling that the same diligence did not result in the discovery by Mr Robert Woodside that the claimant was entitled to five weeks notice under the company’s policy and not the one week tendered. The tribunal did not believe the assertion of either witness for the respondent that they had taken steps to familiarise themselves with the policy that they were operating. The tribunal was asked by one witness to conclude that this error was administrative. – despite the respondent having access to an outside HR resource. Had the error been solely administrative then it was surprising to ascertain at the outset of the hearing that the respondents had still failed to remedy this deficiency. The motivation of Tim Woodside not to properly inform his brother of the disciplinary record of all drivers – which had potential to be relevant to the appeal - is unclear.  

39.	At the same time the tribunal also found the claimant not a very credible witness on his own behalf. His behaviour and claims re the initials and signature on his claim form and other documentation, as well as the different version of events as to how and if communication was made with traffic staff members left the tribunal concluding that where differences occurred on evidence between the parties we found the respondents, as historian of events, more credible.

40.	The tribunal concluded that the respondent company was more concerned with dismissing the claimant – as evidenced by the late referral of a one week old incident to Tim Woodside - once and only once the 7 May incident at Campsie occurred. The focus of the appeal was on justifying the decision to dismiss – and not concerned with “whether the disciplinary action taken was fair “as claimed by Robert Woodside. The tribunal concluded that incompetence was the main reason for the procedural failures. 

41.	The tribunal have to consider whether dismissal fell within the band of reasonable responses to the claimant’s conduct. It is difficult to conclude that the respondent did not have reasonable grounds for believing the claimant had not and was unlikely to adhere to their POD procedures. The claimant was less than “candid” in the different history provided to Sam Hill and during the disciplinary hearing and appeal. It is particularly noteworthy the admission he made in the appeal that “his procedures mightn’t be up to scratch”. While Mr Tim Woodside had initially set out his view in the Step 1 invite that the conduct was “gross misconduct”, by the end of the disciplinary hearing that view had changed to a charge of “major misconduct”. The tribunal had to consider whether the failure to dismiss with one weeks notice would have changed had the deficiencies in the appeal process not occurred. It was clear to the tribunal that had this information been provided by Tim Woodside to Robert Woodside there was little prospect if any that it would have impacted on the outcome of the appeal, particularly given the manner in which the letter dismissing the appeal distinguished the conduct of the other drivers disciplined from that of the claimant. The decision of the tribunal is that a reasonable employer acting in the circumstances that were presented to the respondent could have dismissed the claimant. Accordingly the claimant’s claim for unfair dismissal is dismissed.

42.	At the outset of the case the tribunal had enquired whether the claimant had received more than one weeks notice as stated on his claim form. The respondent contended that as there was no allegation of breach of contract ticked in the claim form, it is a new claim and the tribunal had no jurisdiction to address same as the claim was out of time.

43.	While the claimant ticked only the unfair dismissal box at section 7.1 and 6 (2) on the form, it is also noteworthy that section 5 was completed indicating that the claimant had 7 to 8 years service and had been paid or worked only one weeks notice. Section 7 “details of your claim” involved the claimant submitting a bundle of documents which indicated he was dismissed with one weeks notice for major misconduct, when the disciplinary policy indicated, he should have been dismissed with five weeks notice. The respondent’s response indicated that they agreed with the dates of employment and the notice details included in the claim form. At hearing all parties agreed that the dates of employment on the claim and response form were incorrect and alternative dates of employment were provided to the tribunal as agreed. 

44.	The tribunal considered Selkent Bus Co Ltd t/a Stagecoach v Moore [1996] IRLR 661. Despite the many changes to the Industrial Tribunals Constitution and Rules of Procedure it remains valid law that the discretion of the tribunal to regulate its procedure includes a discretion to grant leave for amendment of a claim, but the tribunal must exercise its discretion judicially – “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”. The tribunal should take into account all the relevant circumstances and should balance the injustice and hardship of refusing an amendment against that caused by a refusal.

45.	Selkent Bus Co describes examples of “relevant circumstances” including the nature of the amendment, the applicability of time limits and the timing and manner of the claim. The nature of the amendment in this case in the opinion of the tribunal fell within the “addition or substitution of other labels for facts already pleaded to” as opposed to “entirely new factual allegations which changes the basis of the existing claim”. There are no time limits laid down in the Rules for making of amendments – they can be made at any time, including at the hearing of the case. This was an unrepresented claimant whose focus was on the loss of his employment with the respondent and the perceived unfairness of same. He did not appear to the tribunal to be familiar with legislation or case law. The tribunal concluded that there was no surprise to the respondent on this issue given their own admission in their response – available to their lawyers at an early stage. The balance of injustice and hardship falls in the favour of the claimant and no jurisdictional issue arises for the tribunal given the nature of the amendment. Accordingly the respondent acted in breach of contract in dismissing the claimant with one weeks notice. The parties had indicated in the forms submitted to the tribunal that the normal take home pay of the claimant varied between £550 to 625. In those circumstances it is ordered the respondent pay to the claimant the outstanding 4 weeks notice – the sum of £2,200.

Chairman:

Date and place of hearing:	7 and 8 December 2009, Belfast.

Date decision recorded in register and issued to parties: