THE INDUSTRIAL TRIBUNALS

CASE REF:	  2761/14

CLAIMANT:			Rita Cavaco

RESPONDENT:		Moy Park Ltd

DECISION 

The decision of the tribunal is that the claim is dismissed as the claimant’s dismissal was fair.

Constitution of Tribunal:

Employment Judge:	Employment Judge Murray

Members:	Mr J Barbour
	Mr S Pyper

Appearances:

The claimant was represented by Ms K Quinn, Barrister-at-Law instructed by Begley Swift Solicitors.

The respondent was represented by Ms A McLarnon, Barrister-at-Law.

THE CLAIM

1.	The claimant alleged that her dismissal was unfair in the following respects:

(i)	that the investigation was inadequate because there was a delay in obtaining a statement from Mr Dauksas; 

(ii)	that the penalty of dismissal was too harsh in the circumstances; and 

(iii)	that the claimant was treated differently to another employee FR who was not dismissed for a similar act of misconduct.

SOURCES OF EVIDENCE

2.	The tribunal had regard to the documents to which it was referred together with the oral evidence of the claimant on her own behalf and the evidence of Mrs Cull, Mrs Dawson and Mr Johnston on behalf of the respondent company.

THE LAW

3.		The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

4.	The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time.  The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing.  The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.  This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

5.	The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal.  In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting.  The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.  There was no breach of the SDP in this case.

FINDINGS OF FACT AND CONCLUSIONS

6.	The tribunal found the following facts on a balance of probabilities and applied the law to the facts found in order in reach the following conclusions.

7.	The claimant was employed by the respondent from 1 August 2005 until September 2014 when she was dismissed for gross misconduct.

8.	The respondent is a company which produces packaged food products.  The claimant worked in a factory on a line alongside other employees with different duties on that line.

9.	The claimant was initially employed as a Process Operative but gained promotion to the post of Metal Detector Operative in 2010 and this was the post the claimant held until her dismissal.  It was a condition of the claimant’s contract, as set out in her terms and conditions when she obtained the promoted post, that she could be required to carry out other duties.  

10.	On a regular basis the claimant was required to carry out other duties as and when required and, in particular, performed the role of a Label Checker.  The claimant had been specifically trained to be a Label Checker and, indeed, such was her experience that she provided training to other employees in that role.

11.	The post of Label Checker was a “critical control” post which meant that if the Label Checker on a line was absent, the line could not start.

12.	The incident which led to the claimant’s dismissal for gross misconduct occurred on 24 July 2014.  On that day the claimant arrived for her 4.00 pm shift and was told by the Acting Supervisor Mr Dauksas that he needed her to work on label-checking duties.  The claimant asked why she had to do this and the matter was referred to Mr Houston who was the Shift Supervisor.

13.	It was common case that both the post of Metal Detector and Label Checker were Grade A jobs.  They were therefore on the same grade and attracted the same rate of pay.  The claimant agreed in evidence that there was no major disadvantage to her in being asked to move a short distance down the line to carry out label- checking duties.

14.	Mr Houston took the claimant into an office to repeat his request that she swap roles and warned her that her refusal to do so could amount to gross misconduct.  Despite this the claimant stuck to her position and ultimately returned to her metal detecting job.

15.	In summary the claimant was asked a total of five times (by Mr Dauksas and in particular Mr Houston, the Shift Leader) to swap the duty and she would not do so, insisting that she should be given an explanation for the change of duties.  In addition the claimant alleged at hearing that her difficulty was that the Shift Leader had taken another employee J off another line to carry out the claimant’s role to free up the claimant to do the label-checking.  This appeared to annoy the claimant because she maintained that that employee was able to do label-checking too.

16.	Whilst there was some debate at hearing as to whether or not the line on which the claimant was working was delayed by 20 minutes or less, it was common case that there was some delay in that line starting.  Whilst some of the delay related to the supervisors moving J from another line, a sizeable proportion of the delay related to the inability of the managers to get the claimant to agree to change roles.

17.	Part of the claimant’s case was that the reason for there being a gap on her line was due to the incompetence of management in allowing too many employees to be on holiday at the same time.  For this reason the claimant maintained that the late start to her line was nothing to do with her but was because of poor management of staff cover.

18.	We find that the reason for any gap on the line is largely irrelevant to this case.  The fact is there was a requirement for a Label Checker on the line.  The relevant manager took the decision that he would move someone from another line to take over the claimant’s role and move the claimant into the label-checking role.  That was a reasonable management decision to take in the circumstances and it was a reasonable request to make of the claimant.

19.	Whilst there was some debate at hearing as to whether or not the claimant refused to change duties or whether she simply was asking questions as to why she had to do so, we find as a fact that the claimant refused to swap her duties from metal detecting to label-checking.  We find that the claimant was doing more than simply asking for an explanation, she appeared to disagree with the decision which the Manager had taken.  It was the claimant’s case that there were other people who could have done label-checking but in our view this is beside the point as there may well have been several options open to the Manager but the fact is the Manager chose the option which he chose and it was a reasonable one.

20.	We find that the request which was made of the claimant on that day was a reasonable management request and that her refusal to carry out that request was an act of misconduct.

21.	It was common case that the work on the line is very fast and staff and managers must work in a very pressurised environment.  Whilst managers had to be at their line 15 minutes before the beginning of the shift the staff were only required to be there 5 minutes before the shift.  There was therefore a lot of pressure on managers to ensure that they had the relevant people in place on the line to ensure that it started on time.

22.	We find that the claimant’s refusal to swap jobs led to a delay in the starting of the line and we accept the evidence of Mrs Dawson and Mr Johnston that this had an impact on the production in that there were several staff further down the line with nothing to do whilst a Label Checker was found and this meant that the number of packs processed was reduced.

23.	Mr Houston made a statement outlining what had happened on that day and this was given to Mrs Cull who was tasked with investigating the incident.  We find nothing untoward with the fact that Mrs Cull was junior to Mr Houston.  Mr Houston was ultimately interviewed by Mrs Dawson in the disciplinary process and she was more senior to him.  In addition there was no material point raised before us in relation to the contents of this statement.

24.	We do not find that there was any excessive delay in dealing with the investigatory process and in particular in gathering the statement from Mr Dauksas.  Whilst it is best practice to obtain statements from witnesses as close to the relevant events as possible, the delay in getting a statement from Mr Dauksas did not have any material prejudicial effect on the course of events.

25.	Following the investigation by Mrs Cull the claimant was sent a letter                           of 26 August 2014 inviting her to a disciplinary hearing.  That letter complied with the SDP.

26.	Mrs Dawson dealt with the disciplinary process which involved considering the documentation provided by Mrs Cull, directing Mrs Cull to obtain further statements and it also involved Mrs Dawson interviewing Mr Houston herself.

27.	The disciplinary hearings took place on 4 and 15 September 2014.  Whilst there was some debate at our hearing about whether the claimant was aggressive and raised her voice at one meeting or not, we find that issue to be irrelevant to the case.  It was clear from the evidence of Mrs Dawson as supported by the record of the disciplinary hearing, that Mrs Dawson tried to make the claimant see where the problem lay with her behaviour and, in particular, tried to elicit from the claimant an acknowledgement of, firstly, the adverse impact on the business, of the delay in starting the line and, secondly, the connection between the delay and the claimant’s behaviour.  We found the claimant was disingenuous in our hearing when she refused to agree with the proposition that a line could not start without a Label Checker and that the lack of a Label Checker led to a delay.

28.	We accept Mrs Dawson’s evidence that, when deciding on the penalty to impose, it weighed heavily with her that the claimant could not see, or accept, that she had done anything wrong.  Mrs Dawson could not therefore be sure that the claimant would act differently in the future.  As the refusal to carry out a reasonable instruction was clearly categorised as gross misconduct in the Company Handbook, the two possible sanctions were a final written warning and dismissal.  It was the claimant’s lack of insight into her behaviour which led to the decision to impose the harsher penalty.  

29.	We find Mrs Dawson’s decision to dismiss was well within the band of reasonable responses for a reasonable employer in the circumstances.  We accept her evidence that she reluctantly reached that conclusion.

30.	Mrs Dawson had also dealt with the case of FR.  FR was employed as a Label Checker and one day had been due to go home early but was asked to carry out her duties instead.  FR’s reaction was to refuse.  She was disciplined for this and in the interview with Mrs Dawson she accepted that she had done something wrong. For that reason Mrs Dawson imposed the lesser sanction of a final written warning.

31.	We find that the situation of FR was different to the situation involving the claimant.  Both situations involved gross misconduct and a serious penalty but the difference with FR was that she accepted that she had done something wrong and agreed that she would do differently in the future.

32.	The claimant appealed the decision to dismiss by her letter of 19 September 2014.  

33.	The appeal process was dealt with by Mr Johnston the Factory Manager and that process involved him perusing the documentation and having an appeal hearing with the claimant.  It is clear from the notes of the appeal hearing that Mr Johnston essentially threw the claimant a lifeline by asking her if, on reflection, she regretted what she had done or, whether her response was correct.  The claimant’s reaction was, essentially, that she still believed she had done the right thing and that it was incumbent on Managers to give a reason for the request.

34.	We accept Mr Johnston’s evidence that he reluctantly upheld the more serious sanction of dismissal even though it meant losing a valuable employee who had been trained to the extent that she was a trainer for others.  

35.	We accept Mr Johnston’s evidence that, if the claimant had accepted that she had done something wrong and would do something different in the future, he would have imposed a lesser sanction.

36.	The appeal hearing took place on 6 October 2014 which was one month after the claimant had lost her job.  The claimant had ample time to reflect on what had happened and yet she rejected the chance at appeal for her to say she would have done things differently.  The disciplinary and appeal processes complied with the SDP.

37.	We accept that in a company with so many employees and such a highly pressurised environment it is not always practical for Managers to give explanations to workers for their decisions.  We accept the respondent’s evidence that employees were asked to swap duties regularly and indeed the claimant candidly accepted that this was something she had done on a regular basis.  The claimant also accepted that she was only being asked to swap duties for that particular shift.

38.	We therefore find: 

(i)	that the employer in the form of Mrs Dawson and Mr Johnston believed that the claimant was guilty of misconduct in the form of failure to carry out a reasonable instruction;  

(ii)	that both Managers had reasonable grounds upon which to base that belief following a reasonable investigation; and

(iii)	that the penalty imposed was within the band of reasonable responses for a reasonable employer in the circumstances.

39.	We specifically reject the claimant’s submission that her act did not amount to gross misconduct.  It was clearly categorised as gross misconduct in the company handbook and her actions were fairly found to fall within the category.

40.	Ms Quinn submitted that the investigation was defective in that a statement was not taken promptly enough from Mr Dauksas because there was a six-week delay and Mr Dauksas said that his memory was not clear of the events.  It was Ms Quinn’s submission that delay in obtaining witness statements can render an otherwise fair dismissal unfair and that there is no need for a claimant in these circumstances to prove actual prejudice.  Ms Quinn relied on the case of A v B an EAT decision, [2003] IRLR 405, at paragraph 68.

41.	We reject the submission that the import of the A v B case is that delay in obtaining a witness statement must, of itself, render a fair dismissal unfair.  The circumstances of this case are entirely different to that which pertained in the A v B case where, the delay was found to have been extraordinary.  

42.	The Dauksas statement was largely ancillary to the main issues which related to the Shift Leader Mr Houston’s inability (despite four requests) to get the claimant to agree to change her duties.  It was Mr Houston who initiated the disciplinary process with his statement outlining the events.  In addition the claimant, in large part, accepted the acts which occurred on that day but argued for a different complexion to be put on those acts and for a different penalty to be applied.  The six-week delay in obtaining Mr Dauksas’ statement was therefore not of the same nature and importance as that in the A v B case.

43.	It was telling that at hearing before us, the claimant agreed that she was liable to be penalised but her contention was that she should not have been dismissed.  The claimant therefore appeared to accept at tribunal that she had done something wrong.  Unfortunately she did not adopt this approach with the managers involved in the disciplinary process at the time the relevant decisions were made.

44.	It is therefore our conclusion that the claimant’s dismissal was not unfair.

Employment Judge:       

Date and place of hearing:  14 and 15 April 2015, Belfast.	

Date decision recorded in register and issued to parties: