THE INDUSTRIAL TRIBUNALS

CASE REF:    2400/12 

CLAIMANT:	John Johnston

RESPONDENT:	Montupet (UK) Limited

DECISION

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

Constitution of Tribunal:

Chairman:	Ms J Knight

Members:	Mr S Pyper
	Mr D Walls

Appearances:

The claimant was represented by his brother Mr Liam Johnston.

The respondent was represented by Ms Kathryn McCormick of the Engineering Employers’ Federation.

ISSUE

1.	The issue to be determined by the tribunal was whether the claimant was unfairly dismissed.

EVIDENCE

2.	The tribunal heard the oral evidence of Ms Deirdre Ross and Mr Noel Dick, witnesses for the respondent and of the claimant and Mr William Palmer.  The tribunal heard Mr Palmer’s evidence out of sequence as he was due to go on holiday out of the jurisdiction on the second day of the hearing.  The tribunal released another witness, Mr McKenna, who was present under a witness order issued at the request of the claimant, as Mr Liam Johnston indicated that he had decided not to call him to give evidence.  The tribunal also took into consideration documentation to which it was referred by the parties during the course of the Hearing.  The tribunal found the evidence of the respondent’s witnesses to be more credible and convincing than that of the claimant.

Findings of Fact

3.	The tribunal found the following relevant facts to be proven on a balance of probabilities:-

4.	The claimant, Mr John Johnson, was employed by the respondent, Montupet (UK) Limited, as a Production Officer as from 21 September 1998 until his dismissal on  10 October 2012 for gross misconduct.

5.	The respondent is a manufacturing company which produces cylinder heads.  The production process involves melting metal to extremely high temperatures which is carried in metal trucks.  Health and safety is paramount in the plant due to the type of processes employed by the respondent.  The respondent has in place a disciplinary policy which provides that summary dismissal is the normal penalty for offences of gross misconduct.  A non-exhaustive list of examples of gross misconduct is contained within the policy and includes verbal abuse of another employee, refusal to carry out a work instruction and any action likely to endanger the health and safety of the employee or any other person.

6.	The respondent has in place a grievance procedure and a Dignity at Work Policy on harassment and bullying.  The claimant had previously raised a grievance through his trade union.  The claimant was issued with a final written warning on 2 November 2011 instead of the more serious sanction of dismissal due to his personal circumstances and mental state at the time for leaving the site without permission, a serious breach of health and safety.  In June 2012 it was decided not to institute any disciplinary proceedings against the claimant for his absences from work due to his marital breakdown.

7.	The claimant was transferred approximately two and half weeks prior to his dismissal to work in the Melt Department and to carry out other duties as required by supervisors in that department who included Mr Tony Mallon.  The claimant worked on the day shift from 8.00 am until 4.30 pm.  Mr Mallon worked on a rolling shift and on the claimant’s first week on the Melt area he was on the evening shift from 3.00 pm until 11.00 pm and on the claimant’s second week was on the morning shift from 7.00 am until 3.00 pm.  The claimant is required to be ready for work and in his protective clothing at his work station at 8.00 am.   

8.	The claimant’s dismissal arose out events which occurred on 28 September 2012 in the Melt Department.  That morning Mr Mallon spoke to the claimant as he arrived into work to tell him that he was late, that he had to be in and ready for work at 8.00 am and that this was the second time that week he had spoken to the claimant about timekeeping.  The claimant contended that this conversation took place at 7.59 am whereas Mr Mallon contended that the clock on the wall of the Melt showed 8.06 am.  The claimant told Mr Mallon that he had had a hard morning and to cut him a bit of slack.  At approximately 9.20 am Mr Mallon asked the claimant to do the RCM cleaning on Fata 3.  The claimant objected and asked Mr Mallon, “Why are you bursting my balls?”  The claimant then accused Mr Mallon of bullying him and walked away towards the office of Paul Maguire, the Business Unit Manager.  The claimant’s case is that as he walked away he heard Mr Mallon say something which he could not make out which made him “snap” and he told Mr Mallon to “Fuck off away, Tony, and leave me alone”.  He then took off his gloves and threw them away and threw a coffee which he was holding which hit the top of the barrier at Fata 2 and proceeded to Mr Maguire’s office.

9.	Mr Mallon followed the claimant to Mr Maguire’s office.  Mr Maguire was not there.  There was a further exchange between Mr Mallon and the claimant in a room off Mr Maguire’s office.  Mr Mallon pointed out that the claimant had sworn at him on the shop floor in front of other employees.  The claimant initially denied this but then said that if he had cursed at him, then he had been forced into it because he had been intimidated and bullied by Mr Mallon.  Mr Mallon informed the claimant that he was going to report the incident and the claimant alleged that as they were about to walk out of the office Mr Mallon closed the door pointed his finger and stuck his face into the claimant’s face and said, “There are no witnesses to this. You pretended you wanted to hang yourself to a man who just lost his brother through hanging”.  Mr Mallon’s brother had previously committed suicide on the respondent’s premises.

10.	Mr Mallon reported the incident and made a statement about what had occurred.  Ms Kelly Tallon of Human Resources was tasked to carry out an investigation into the incident.  Mr Jim Carlisle who is also a Dignity at Work officer was sent to find the claimant to bring him to the personnel department so that a statement could be taken from him.  On 1 October 2012 a statement was taken from Mr Renaud Bredin who was present when the claimant and Mr Mallon came into Mr Maguire’s office.  Mr Bredin’s statement confirmed that he could hear raised voices from the meeting room but that he could not hear what was said; that they left the meeting room together and that Mr Mallon said he would be putting in a report.  He did not hear the claimant swearing or asking for a pass out.

11.	Ms Deirdre Ross, a Personnel Officer, and Paul Maguire made the decision that there were sufficient grounds to instigate disciplinary proceedings as they considered that the claimant’s behaviour could be regarded as potentially insubordinate behaviour and gross misconduct.  Ms Ross and Mr Maguire compiled a document which set out various points arising out of the statements taken during the investigation and which highlighted points for clarification.  This document was also used to compile a list of questions to be put to Mr Johnson during the disciplinary hearing.  On 3 October 2012 Mr Dick, Senior Human Resources Officer, visited Mr Mallon at Ms Ross’s request to obtain further clarification of matters raised by the claimant in his statement.  Mr Dick, relayed back to the disciplinary panel, Mr Mallon’s responses to questions which had been formulated by Ms Ross.  Mr Mallon denied that he had been holding a mobile phone and that he had checked the time on the clock on the wall when he spoke to the claimant about his timekeeping.  He denied threatening the claimant in the office.  He pointed out that during a previous investigatory meeting in October 2011, he stopped the meeting when the claimant revealed that he had felt suicidal due to marital problems so that the claimant could seek advice from Human Resources or Care Call.

12.	Ms Ross wrote to the claimant on 3 October 2012 inviting him to a disciplinary meeting to deal with allegations that the claimant had breached company rules for insubordination and by using abusive language and aggressive behaviour towards Tony Mallon on 28 September 2012.  She advised that this behaviour may be considered as gross misconduct and that a possible sanction could be dismissal.  The claimant was advised of his right to be accompanied at the meeting by a Shop Steward or work colleague.  The statements of the claimant, Mr Mallon and Mr Bredin, a copy of the follow up investigation with Mr Mallon, the record of the claimant’s clocking in time on 28 September 2012 and a copy of the disciplinary procedure contained within the company handbook, were enclosed with the letter.

13.	The disciplinary meeting took place on 8 October 2012.  The claimant was accompanied by his trade union Representative, Mr Michael McKeever.  The disciplinary panel comprised Deirdre Ross and Paul Maguire.  The disciplinary meeting lasted for approximately two hours on the first day and reconvened the following day for fifteen minutes.  The claimant was asked to clarify matters raised in his statement.  It was put to the claimant that the clocking record showed that he had clocked in at the turn style at 7.59 am.  The claimant was asked how he could have been standing in the Melt at 7.59 am.  It was put to the claimant that he was not ready to start his shift at 8.00 am.  The claimant was asked to explain what he had meant when he had asked Mr Mallon, “Why are you bursting my balls and crawling all over my butt for the past two weeks?”  The claimant did not deny making the statement and explained that he felt that Mr Mallon had been giving him jobs which were not related to the Melt.  Mr Maguire confirmed to the claimant that he himself had issued an instruction to the three supervisors that the claimant was to carry out Melt jobs and any other roles that were to be allocated.  The claimant accepted that he did not object when Mr Barnes, another supervisor, had also issued an instruction to the claimant to carry out a job outside of the Melt.  The claimant accepted that it was not appropriate to tell his supervisor to fuck away off Tony and leave me alone.  He accepted that it was definitely not appropriate language to use to anyone and that it was aggressive and dangerous behaviour to throw his gloves and coffee.  However he said that he acted in this way because he felt that Mr Mallon was trying to bully him and that he had singled him out to do jobs outside of the Melt.  He stated that he had snapped and acted in a moment of frustration.  The claimant could not explain why in his statement he had initially denied cursing at Mr Mallon when he later contradicted himself, except that it was probably the state he was in.  Mr McKeever suggested that Ms Ross and Mr Maguire should speak to Jim Carlisle regarding the claimant’s state of mind.  He also suggested that there had been a build up between Mr Mallon and the claimant’s behaviour on 28 September 2012 was a reaction to bullying by Mr Mallon.  The claimant was asked for specific examples of how he was bullied by Mr Mallon.  In response the claimant stated that the previous day Mr Mallon had accused him of not performing a task although when the claimant was able to show him that he had in fact done it, Mr Mallon had said he did a good job.  The claimant also stated that although he had previously got on well with Mr Mallon the attitude of the latter had changed towards him as he did not believe it when the claimant had told him that he had tried to kill himself.  The claimant told the disciplinary panel that he felt this was the reason for Mr Mallon’s alleged bullying behaviour and that he had realised this in Mr Maguire’s office.  He stated that Mr Mallon had the reputation of being a bully and that some of his colleagues had expressed the view that he was out to get the claimant because he was giving him tasks outside the Melt.  Mr McKeever informed the disciplinary panel that the claimant still occasionally took medication as a result of problems from his home life and as a result might arrive late at his work station.  He advised that the claimant had regretted what had happened that it was a “one off” and out of character for the claimant.

14.	The meeting adjourned and a statement was obtained from Jim Carlisle.  He confirmed that when he found the claimant he was emotional and upset with tears in his eyes.  Ms Ross gave evidence that she considered that the claimant may have been upset because he realised the potential serious consequences of his behaviour.  Ms Ross reviewed the minutes of the previous investigatory meeting in 2011 which corroborated Mr Mallon’s contention that he had been supportive of the claimant.  She noted that the claimant, during the subsequent disciplinary hearing, had stated that it was good that Mr Mallon was there and had cared for him.  She noted that the claimant had not raised any previous allegations of bullying against Mr Mallon although he was aware of the bullying and harassment policy.  She noted that he had also previously raised a grievance concerning his transfer from one department to another and concluded that he was aware of how to make a grievance.  She and Mr Maguire reviewed the notes of the disciplinary hearing and their further investigations and concluded in view of the claimant’s admission that he was guilty of the gross misconduct as alleged for which dismissal was the appropriate sanction.  The disciplinary panel did not consider that there was evidence to support the claimant’s contention that he had acted in response to bullying behaviour or that the examples given by the claimant at the disciplinary hearing could amount to bullying.  They concluded that Mr Mallon had, as the claimant’s supervisor, spoken to him about timekeeping and had instructed the claimant to carry out duties outside of the Melt.  Further, that in checking whether the claimant had carried out the cleaning job, he had himself been carrying out a work instruction.  Ms Ross did not consider it was appropriate to take statements from those employees who had advised the claimant that Mr Mallon was a bully.  The disciplinary panel took into consideration the reference to the claimant’s personal circumstances but did not consider that these were raised as a reason for the behaviour and were not such as to justify holding back from dismissal.  Ms Ross had reviewed the claimant’s personnel file to see whether there was anything else in favour of the claimant.  She noted that there was a live final written warning although this was not taken into account when deciding the penalty.  A letter was sent to the claimant on 11 October 2012 confirming that he was dismissed because on 28 September he was insubordinate, used abusive language and displayed aggressive behaviour towards Mr Mallon and setting out the reasons for the decision.  The claimant was advised of his right to appeal against the decision and to be accompanied at the appeal meeting.

15.	The claimant sent a letter dated 17 October 2012 setting out his grounds for appeal which were that he had not been late for work as his clock in stated 7.59 am and that the disciplinary panel had disregarded his evidence that he had acted out of frustration due to ongoing harassment by Mr Mallon.  He further stated that there had not been a full investigation and that his dismissal was in response to him raising a formal complaint with Mr Maguire which amounted to victimisation.

16.	The appeal hearing took place on 26 October 2012 and was conducted by Mr Noel Dick and Mr John McMichael. The claimant was accompanied by Mr McKeever. The claimant’s representations were focused on discrepancies between the accounts of Mr Mallon and Mr Bredin.  The claimant suggested that these discrepancies supported his version of what had occurred between himself and Mr Mallon in Mr Maguire’s office. He did not deny that he had sworn at Mr Mallon on the floor and that he threw his gloves and the coffee.  Mr McKeever suggested that this was out of frustration due to his perception that he was being bullied by Mr Mallon and also because the claimant had previously been diagnosed with depression and anxiety the previous year due to personal problems, although he suggested that the claimant was getting better and indicated that he had stopped his medication.  Mr McKeever suggested that the claimant was not excusing what he did and did not expect to get off scot free but that dismissal was “over the top”.

17.	An agreed summary of the points raised by the claimant at the meeting was drawn up and after the meeting Mr Dick had further discussions with Mr Mallon and Mr Bredin about the events in the office.  The appeal panel concluded that any discrepancies were insignificant and did not affect the decision as this occurred after the actual misconduct, namely swearing and throwing his gloves and coffee, which the claimant admitted.  Mr Mallon had also clarified that he was following a work instruction when he had asked the claimant to show him that he had carried out the job outside the Melt the previous day.  The appeal panel considered the reasons put forward on behalf of the claimant for his actions.  It was not accepted that the claimant had been bullied nor was it considered that the claimant had raised a formal grievance as stated by him.  The appeal panel took into consideration the personal information given to them by Mr McKeever but did not consider that this was such as to justify a lesser penalty given the seriousness of the disciplinary offences.  The appeal panel confirmed the decision of the disciplinary panel which was notified to the claimant.

18.	The claimant lodged his complaint of unfair dismissal with the Office of the Tribunals.  The claimant did not dispute that he had sworn at Mr Mallon and that he had thrown his gloves and coffee and in cross examination he conceded that his behaviour had been dangerous, aggressive and unpredictable.  A number of matters were raised on behalf of the claimant which were not raised with the respondent during the disciplinary process.  It was put to Ms Ross that the claimant had simply used “industrial language” when he swore at Mr Mallon.  Although Ms Ross conceded that employees did swear and let out expletives, the claimant’s words were directed at Mr Mallon and he had accepted that the language he used was unacceptable.

19.	It was put to both Ms Ross and Mr Dick in cross examination that the disciplinary and appeal panels failed to give sufficient consideration to the information given  to them by Mr McKeever about the claimant’s personal circumstances from which it should have been deduced that on 28 September 2012 the claimant was suffering from a serious depressive illness for which he is still taking medication, namely fluoxetine.  Further it was suggested that the quality of the claimant’s evidence to the tribunal was adversely affected by his medical condition.  The claimant did not provide any medical evidence during the disciplinary process or at the hearing before tribunal to support these contentions.

20.	It was further submitted that the respondent had acted inconsistently in dismissing the claimant because other employees, who the respondent had found to be guilty of acts of gross misconduct were not dismissed but given a final written warning.  The respondent’s submission was that the circumstances of the claimant’s case were taken fully into account.  Mr Dick confirmed that had there been grounds to support the claimant’s contention that he had acted as he did because of bullying, there would have been a different outcome.

LAW

21.	An employee has a right not to be unfairly dismissed by his employer and it is for the employer to establish the reason for the dismissal.  A dismissal is potentially fair if the employer can establish that the reason for the dismissal relates to the conduct of the employee.  [Articles 126 and 130(1)of the Employment Rights (NI) Order 1996 as amended (“the 1996 Order”)] .

22.	Where the employer has shown that the reason for the dismissal is potentially fair, the determination of the question whether the dismissal is fair or unfair, having regard to the reasons shown by the employer, 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 sufficient reason for dismissing the employee, and shall be determined in accordance with equity in the substantial merits of the case.  [Article 130(4) of the 1996 Order.]

23.	A dismissal will be automatically unfair where an employer fails to comply with the statutory disciplinary and dismissal procedure.  However where an employer fails to comply with any other procedure the dismissal will still be fair if the employer can show that there was more than a fifty per cent chance that the employee would still have been dismissed had that procedure been followed.  [Article 130A of the 1996 Order.]

24.	In Rogan  v  South Eastern Health and Social Care Trust (2009) NICA 47 the Court of Appeal of Northern Ireland stated at paragraph 21:  “The test for whether the dismissal was fair or unfair is set out in article 130 of the Employment Rights (Northern Ireland) Order 1996 but in misconduct cases it is generally helpful to follow the remarks of Arnold J in British Home Stores.  It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all circumstances.  The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.  Although the tribunal did not approach the matter in this sequential way it is possible to determine the tribunal's consideration of each of these matters.”.  In paragraph 26 of the judgement of the Court of Appeal makes it clear that the weight to be given to the evidence is for the disciplinary panel and not for the tribunal.

25.	In British Homes Stores  v  Burchell [1980] ICR 303 Arnold J described the task of the tribunal as follows:  “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 entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  First of all, there must be established by the employer the fact of that belief.  Secondly, that the employer had reasonable grounds for that belief.  And thirdly that the employer had carried out as much investigation into the matter as was reasonable in the circumstances of the case”.

26.	The leading case on the application of Article 130(4) of the 1996 Order is Iceland Frozen Foods  v  Jones [1982] IRLR 439 EAT in which Browne-Wilkinson J stated that “the correct approach for the industrial tribunal to adopt in answering the question posed by [Article 130(4) of the Order] is as follows:-

		i.	the starting point should always be the words of [Article 130 (4)] themselves of the employer’s conduct, not simply whether they consider the dismissal to be fair;

		ii.	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they consider the dismissal to be fair;

		iii.	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;

		iv.	in many, though not all cases where there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another employer might quite reasonably take another;

		v.	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”.

	In Sainsbury’s Supermarkets Ltd  v  Hitt [2003] IRLR 23, the Court of Appeal held that it was not for the tribunal to substitute its own view for that of the employer.  The Court of Appeal stated as follows:-

		“The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason”.

CONCLUSIONS

27.	The respondent has complied with the statutory disciplinary and dismissal procedures in the present case and therefore this is not a case of automatically unfair dismissal.  The respondent has further discharged its burden of showing on a balance of probabilities that the reason for dismissal in the present case was the conduct of the claimant, which is a potentially fair reason.

28.	The tribunal went on to consider whether in all the circumstances the respondent acted reasonably or unreasonably in treating this as sufficient reason to dismiss the claimant.  In the present case the claimant had admitted swearing at and insubordination towards his supervisor and dangerous and aggressive behaviour in an environment where health and safety is of paramount importance.  The claimant conceded during the disciplinary process and at the hearing before this tribunal that his actions were unacceptable.  The tribunal was satisfied that the respondent correctly categorised his actions as gross misconduct which, it is clear from the respondent’s disciplinary policy, will normally attract a penalty of summary dismissal.  The claimant was not disciplined either for timekeeping or the events which occurred in Mr Maguire’s office.

29.	The claimant’s case was that the penalty was excessive although he expected some disciplinary sanction.  The claimant had an opportunity to make his case and his explanations for his behaviour were taken into account.  The claimant did not raise a formal complaint either under the grievance procedure or the bullying and harassment policy.  The allegations of bullying against Mr Mallon were raised by the claimant solely in the context of the disciplinary process as an explanation for his own actions.  The tribunal considers that Ms Ross carried out a full and reasonable investigation of the bullying allegations made by the claimant.  She asked him to identify concrete examples of the bullying behaviour and then followed this up by carrying out further relevant investigations.  The tribunal considers that Ms Ross acted reasonably when she concluded, after her investigation, that the claimant’s allegations that he had been bullied by Mr Mallon, were unfounded.  The tribunal did not consider that Mr Palmer’s evidence assisted the claimant’s case as he was not present during the events of 28 September 2012 and was not involved in any way with the disciplinary process.

30.	The claimant also made the case that the respondent failed to take into account his personal circumstances including his depression and marital difficulties.  This was only alluded to in passing in the disciplinary hearing by the claimant’s trade union representative and was not offered as an explanation for his behaviour at that stage.  At the appeal hearing more emphasis was placed upon the claimant’s personal circumstances as a reason for his behaviour.  Nevertheless the tribunal is satisfied that the respondent did give consideration to the claimant’s personal circumstances but concluded on the information available that this did not change the view that summary dismissal was the appropriate penalty.  The tribunal is of the view that this was a conclusion that the respondent was entitled to reach based upon the information that was available at the time which was that the claimant was getting better and had stopped his medication.  The tribunal considers that in imposing the penalty the respondent was entitled to weigh the matters raised by the claimant in mitigation against other factors such as the seriousness of the offence and the potential consequences of the actions in terms of health and safety and upholding the authority of the line manager.  In deciding to dismiss the claimant, the tribunal is satisfied that the respondent did act within the band of reasonable responses open to a reasonable employer in all the circumstances.

31.	The tribunal carefully considered two matters which raised question marks concerning the procedural fairness of the dismissal.  The first concerned Mr Dick’s contact with Mr Mallon during the disciplinary investigation stage.  The second was that the claimant was not provided with a copy of the minutes of the disciplinary hearing prior to the appeal.  The tribunal did not consider in the circumstances that these matters did in fact adversely affect the claimant in any way.  It is good practice that the person hearing the appeal should not be involved in any way in the earlier stages of the disciplinary process, the tribunal accepted that Mr Dick was not involved in the initial decision to dismiss and that he had simply put to Mr Mallon questions that were formulated by the disciplinary panel and relayed his answers back.  The tribunal took into account that the claimant did not make the case that there were any matters arising from the minutes of the disciplinary hearing that he would have wished but was not able to raise at the appeal hearing because the minutes had not been given to him.  The tribunal therefore concludes that these procedural irregularities did not cause unfairness to the claimant and did not affect the outcome in any way.

32.	The tribunal therefore concludes that the claimant’s claim of unfair dismissal is not well founded and dismisses the claimant’s claim in its entirety.

Chairman:

Date and place of hearing:     26 & 27 March and 15 April 2013, Belfast.

Date decision recorded in register and issued to parties: