THE INDUSTRIAL TRIBUNALS

CASE REF:    925/12  

CLAIMANT:	Gordon Anderson

RESPONDENT:	TNT UK Ltd

DECISION

It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed either on substantive grounds or procedural grounds.

Constitution of Tribunal:

Chairman:	Ms W A Crooke

Members:	Mr J Kerr
	Mr J Patterson

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Timothy Warnock, Barrister-at-Law, instructed by Millar McCall Wylie Solicitors.

SOURCES OF EVIDENCE

1.	The claimant gave evidence on his own behalf.  The following persons gave evidence on behalf of the respondent:-

	(1)	Mr Peter Monteverde, Shift Manager;

	(2)	Mr Dermot O’Kelly, Director of Operations for Northern Ireland and Ireland and he was the Appeal Manager; and

	(3)	Mr Grant Malcolm, Depot Manager, Nutts Corner.

THE CLAIM AND THE DEFENCE

2.	The claimant claimed that he had been unfairly dismissed and that the dismissal was automatically unfair on procedural grounds, in that the respondent failed to follow the Dismissal and Disciplinary Procedures.  The claimant also contended that he should have been given proper notice.

3.	The respondent denied these claims.
THE FACTS

4.	The claimant was employed by the respondent as a Loading Bay Operative between 28 December 2010 and 14 March 2012.

5.	The claimant was dismissed for gross misconduct as a result of the claimant deliberately absenting himself from work on 27 February 2012.

6.	The claimant had received a written warning on 26 January 2012, as a result of deliberately leaving his place of work before the end of his shift, on 9 December 2011, and this warning was live at the time of his deliberate absence on 27 February 2012.

7.	The claimant left work on 24 February 2012 after being told by Mr Tommy McCullough, his Foreman, and Mr Harry Kane, the Operations Manager that he was not permitted to have time off on 27 February 2012 due to operational needs.  The claimant nonetheless left work on Friday, 24 February 2012 saying that he was almost completely sure that he would not be in work the following Monday (27 February 2012).  On that day he telephoned the Shift Manager, Mr Peter Monteverde, to say that his plane had been delayed.  This was not true.  Mr Monteverde asked him to consider other methods of returning but the claimant was unwilling to do so.

8.	The claimant was suspended on full pay pending investigation.  The matter was properly investigated by Mr Peter Monteverde (Shift Manager) and the claimant admitted his misconduct.

9.	The matter was referred for a disciplinary hearing and this was chaired by Mr Grant Malcolm, the Depot Manager.

10.	The claimant admitted his misconduct at the Disciplinary Hearing and also admitted to lying to management in relation to his flight being delayed.

11.	Mr Malcolm considered this constituted gross misconduct and felt that there was no other option but to dismiss the claimant.

12.	The claimant appealed his dismissal by way of letter dated 19 March 2012 and his appeal request was acknowledged by way of letter dated 26 March 2012.  Mr Dermot O’Kelly, the Director of Operations for Northern Ireland and the Republic of Ireland was tasked to conduct the appeal.  At that time, due to work pressures arising from the economic environment and being required to be involved in an amalgamation of two depots in Dublin and also a projected takeover of another company, Mr O’Kelly overlooked the appeal.  There was a material delay in inviting the claimant for appeal.

13.	The claimant was invited to the appeal by a letter dated 21 June 2012 in which Mr O’Kelly apologised for the delay.  The claimant said that he would not attend the appeal.  Mr O’Kelly also tried to persuade the claimant by telephone to take up his appeal and the claimant refused.  The appeal process was therefore terminated.

14.	The claimant in presenting his case to the tribunal contended that he had been told by his Supervisor, Mr Tommy McCullough, that he should just telephone and say that his flight was delayed on Monday, 27 February 2012.  He also contended that Mr McCullough had assured him that his absence was covered.  As a Loading Bay Operator the claimant was part of a small team who conducted the x-raying of various items of freight.  The claimant’s fellow employee, Mr Colin Harper, had already booked the time off and the claimant was refused permission to also be off.  Contrary to the claimant’s contention that Mr McCullough had told him that the absence was covered, Mr Malcolm said that he had been forced to provide cover from the Nutts Corner depot to the International Airport depot (which is where the claimant was based).  The claimant did not challenge this evidence.

CONCLUSIONS

15.	Under Article 130(1)(b) of the Employment Rights (Northern Ireland) Order 1996 an employer has the burden of proof of proving the reason why the claimant was dismissed.  Article 130(2)(b) specifies conduct as a statutory reason for dismissal.  In this case we find that the respondent has discharged the burden of proof in showing that the claimant was dismissed for gross misconduct arising from him deliberately absenting himself from work on 27 February 2012.

16.	In any case involving misconduct, a tribunal will look at the three stage test set out by the EAT in the case of British Home Stores Ltd  v  Burchell [1978] IRLR 379.  This provides:-

		“(a)	first, the employer must establish that he or she believed that the employee was guilty of misconduct;

		(b)	second, the employer must show that he or she had reasonable grounds for so believing; and

		(c)	third, the employer must show at the time he or she held that belief, he or she had carried out as much investigation as was reasonable in all the circumstances of the case.”

17.	In this particular case, the claimant admitted his misconduct.  It has long been settled law that where misconduct is admitted the level of investigation required is not as great.  However, the respondent still conducted an investigation in this matter.  Mr Peter Monteverde investigated by interviewing Mr T McCullough and Mr Harry Kane.  He also interviewed the claimant and he came to the reasonable conclusion that the matter should proceed to a Disciplinary Hearing.

18.	In answering the Burchell test, we find that the respondent had a belief that the claimant was guilty of misconduct and that it was reasonable to hold that belief as:-

	(a)	the claimant was absent from work on 27 February; and

	(b)	he refused to consider any other method of coming home early other than via the flight he had booked.  The claimant’s grounds for holding to this position were that it was too expensive and that it was difficult to get into the airport on Sunday by train.  

	We also consider that the respondent conducted as much investigation as was reasonable in all the circumstances of the case by speaking to Mr McCullough and Mr Kane who were the two persons involved in the claimant’s request for leave on 27 February 2012.

19.	Once we have answered the three point test set down by the case of BHS  v  Burchell we must then move on to consider whether dismissal was in the band of reasonable responses.  In this area, we adopt the approach set out in the case of Iceland Frozen Foods Ltd  v  Jones [1982] IRLR 439 and the principles in that case were set out as follows:-

		“(1)	the starting point should always be the words of section 57(3) [the predecessor of section 98(4) of ERA 1996] themselves;

		(2)	in applying this 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 as the employer;

		(4)	in many (though not all) cases there is a band of reasonable responses to the employees conduct within which one employer might reasonably take one view and another quite reasonably take another;

		(5)	the functions 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.”

20.	In this case we conclude that the decision was within the band of reasonable responses open to an employer faced with this type of misconduct.  At the time that the claimant was absent without leave on 27 February 2012 he had a live written warning against him dated 26 January 2012 in respect of a similar type of misconduct in that he walked off a shift early without leave.  In reaching the decision that dismissal was within the band of reasonable responses we have taken note of the nature of the respondent’s business and the role played by the claimant.  At Belfast International Airport the claimant was one of a small team of loading bay operators trained to x-ray the freight that was to go on planes out of Northern Ireland.  This had to be done to very restrictive timescales and each x-ray operator was only permitted to x-ray for 20 minutes at a time.  If the shift was not covered to its full complement, the risk faced by the respondent business was that the freight would not be capable of being carried by plane and would have have to travel by road with consequent operational difficulties and financial expense caused to the respondent and potentially its business clients.  However, perhaps most importantly the respondent is subject to unscheduled inspections by the Department of Transport to see that it is conducting its business in accordance with its guidelines.  If it had transpired that the Department had visited the airport on that day, it was possible that the respondent would have been found to not be compliant with the regulations under which it operated and the Department of Transport as a consequence would have had the power to suspend its licence to carry freight in and out of Northern Ireland with an extremely serious effect on the respondent’s business.  For all of these reasons and because the claimant admitted that he lied to the respondent, we find that dismissal was within the band of reasonable responses facing this employer.  This employer needed to know that its workforce were trustworthy and the claimant not only lied to his line management, but ignored the prohibition of two managers and did not report for work putting a strain on the rest of the respondent’s business as an operator had to be moved from the Nutts Corner depot to the airport.

21.	The role of Mr Tommy McCullough  (also known as Jake McCullough)

	(1)	The claimant contended that he had a discussion with his Supervisor, Mr McCullough, before he left to travel to London on 24 February 2012.  He alleged Mr McCullough had told him that he had his absence for the following Monday already covered and that he should simply telephone the respondent from the airport saying that his plane was delayed.

	(2)	This was a point that was made repeatedly by the claimant before the tribunal.  However, there was no record in the documentation to support the claimant’s contention that he had brought this to the attention of Mr Monteverde or Mr Malcolm.  Neither had he included it as a ground of appeal in his appeal letter.  The tribunal considers that if this was a matter of such alleged importance to the claimant, he would have made Mr Monteverde and Mr Malcolm aware of it.  He admitted that he did not tell Mr Malcolm about it saying that he thought Mr Monteverde would have told him.  However, he also told the tribunal that Mr Monteverde did not write down this explanation.  If this is the case, it seems improbable that the claimant would rely on Mr Monteverde to have brought this allegation to the attention of Mr Malcolm.  In the Disciplinary Hearing the claimant did not challenge the witness statements and when he appealed his dismissal he did not include this as a ground in his appeal letter.  On the balance of probabilities, the tribunal considers that it is more likely than not that this conversation with Mr McCullough simply did not happen.  We are supported in reaching that view by Mr Monteverde’s uncontraverted evidence that he had to move someone from Nutts Corner to the airport to cover the absence of the claimant.  This would not have been necessary if Mr McCullough had already covered this absence.

PROCEDURAL UNFAIRNESS

22.	The tribunal was also informed by the claimant that he considered that his dismissal was automatically unfair because of Mr O’Kelly’s delay in offering an appeal date to him.  Article 130A of the 1996 Order provides as follows:-

		“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if  -

			(a)	one of the procedures set out in Part One of Schedule One to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

			(b)	the procedure has not been completed; and

			(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

23.	The claimant contended strongly that he felt justified by Mr O’Kelly’s failure to fix a date, in refusing to attend the appeal when he was contacted by Mr O’Kelly in or around 21 June 2012.  He made the point that most other companies would have arranged an appeal within six weeks but it took this respondent 14 weeks to do so.  However, the tribunal accepts Mr Warnock’s submission supported by the authorities of Selvarajan  v  Wilmot [2008] IRLR 824 and the decision of the EAT in Dogan  v  London Borough of Greenwich UKEAT/0525/09.  These authorities provide that an unreasonable delay is not sufficient to prevent the disciplinary and dismissal procedures being completed.  Consequently, Mr Warnock contended it was the claimant who prevented the procedure being completed and as such his dismissal was not automatically unfair.
 
24.	The tribunal has considered the text of the statutory disciplinary and dismissal procedures in Schedule One of the Employment (Northern Ireland) Order 2003 and the respondent’s own disciplinary procedures.  In neither case does it set down any sort of timetable within which the steps of the respective procedures must be completed.  Therefore, we consider that it was still open to the respondent to offer the claimant the appeal in June 2012 (in or around 14 weeks after his dismissal) and it was the claimant’s refusal to attend the appeal which rendered the decision not automatically unfair or unfair on general procedural grounds.

Chairman:

Date and place of hearing:  18 and 28 September 2012, Belfast.

Date decision recorded in register and issued to parties: