IN THE INDUSTRIAL TRIBUNAL
CASE REF 41/08
Claimant: Gordon Green
Respondent: Clarehill Plastics Limited
DECISION
The decision of the Tribunal is that the claimant was unfairly dismissed, but we also find that he contributed towards his dismissal by his conduct. Accordingly, we have decided that the compensatory award will be reduced by 25%. The respondent is ordered to pay the claimant compensation in the sum of £7514.75.
Constitution of the Tribunal:
Chairman: Miss E McCaffrey
Panel Members: Ms M Mulligan
Mr T Martin
Appearances
The claimant was represented by Ms Rachel Best BL instructed by Patrick Park, Solicitor.
The respondent was represented by Ms Michelle McGinley of the Engineering Employers Federation.
The Issue
- It was not disputed that the claimant had been dismissed from his employment by the respondent on 6 November 2007 following an incident at work on 3 November 2007. The issue for the tribunal to decide was whether the dismissal had been fair or unfair in all the circumstances.
In considering this, we have addressed the following questions:
(1) Did the respondent's disciplinary procedures meet the requirements of the statutory disciplinary procedures as set out in the Employment (Northern Ireland) Order 2003?
(2) Were the disciplinary procedures applied by the respondent procedurally fair?
(3) Did the respondent's decision to dismiss the claimant fall within the band of reasonable responses open to an employer?
(4) Taking account of the findings in respect of questions (2) and (3), was the claimant unfairly dismissed?
(5) If the claimant was unfairly dismissed, did he contribute to his dismissal by his own conduct?
The Facts
- We heard evidence from the claimant and from Mr Lundy (Production Manager), Mr James Kelly (Team Leader), and Mr Brian McCann (Managing Director) for the respondent company. On the basis of the evidence given, we make the following findings of fact.
- The claimant commenced employment with the respondent as a Production Operative on 13 December 2004. The respondent is a company which makes bonded oil tanks, fuel stations and secure oil tanks. The business is seasonal in that business is at its peak in the autumn period, there is a slack period after Christmas and then business starts to build up again in the spring and through the summer. At peak periods, staff are asked to work overtime.
- On 3 November 2007, a Saturday, the claimant had agreed to work overtime. The shift was due to run from 7am until approximately 1pm, but the finishing time depended on the availability of individual members of staff. The claimant arrived at 5.30 am, intending to start work early and leave earlier, around 11.30. He had agreed this with one of the team leaders. On a morning shift, staff would normally have one 15-minute break, taken when there was a suitable pause in production. They did not have to ask permission from the team leader, they took the break when an opportunity occurred, normally at least two hours after the shift started.
- Mr Kelly, the team leader who was supervising that shift, arrived at the factory at about 6.45am and saw the claimant and some other members of staff were already at work. He realised that two members of staff who had been due to turn in to work overtime had not come to work and he therefore had to rearrange the personnel. He asked the claimant and a Polish employee, Michael Maliszewski, to run machine number 4. The claimant initially was unhappy to do this as he had done this work all through the week. He asked Mr Kelly if another employee couldn't do the job instead and Mr Kelly replied no, that Mr Herron the other employee suggested by the claimant was too slow. The claimant did then run the machine as requested.
- There was then a difference of opinion between the claimant and Mr Kelly as to subsequent events. Because of the conflict of evidence, we set out both accounts. Mr Kelly's evidence was that around 8am he saw the claimant outside the canteen on what seemed to be his break, as he was sitting on a summer seat having a smoke. Mr Kelly did not however speak to him at this stage. Around 8.35am he saw the claimant having another smoke, this time Mr Kelly went over to him and asked if this was his official break. The claimant asked why, and Mr Kelly said, "Because I am asking and I would like to know as this is the second time I have seen you out here having a smoke this morning and you should only really have one break today." The claimant replied, "What's it got to do with you?" Mr Kelly indicated that the claimant was only entitled to smoke during his official break and said that this was his second time out this morning and he would like to know if this was his official break. Mr Kelly said that the claimant then told him to "Fuck away off and give his head peace." Mr Kelly indicated that they would talk about it further on Monday in his office and the claimant then replied "Fuck away off, you prick." Mr Kelly then said that he started to drive away and Michael Maliszewski, who was also present, had gone back to work. There was then a further discussion between the claimant and Mr Kelly about the break. Again Mr Kelly's account was that the claimant swore at him and told him to "Fuck away off." Mr Kelly told the claimant that he had an attitude problem and the claimant said "Oh right, you have an attitude problem." Mr Kelly then told the claimant that he was not taking that attitude from him or anyone else and that he was to leave the factory. Mr Kelly then tried to phone both Mr Coey and Mr Lundy, the Managers, to advise them of what had happened but could not get any reply. Mr Kelly saw the claimant coming out of the bottom factory with his coat and bag and told him that he would be expected to come into work on Monday at 11 o'clock and the situation would be talked about further then. The claimant said that he would not be available on Monday morning and would not be in. Mr Kelly reiterated that he expected him to come in and he was officially asking him to return to the factory. Mr Kelly made notes of the incident in relation to the break at about 9.15 the same morning as the events occurred. In his evidence to the Tribunal, although not in his notes, he said he felt threatened by the claimant's attitude.
- The claimant's account of this incident was different. Although he would not normally have taken his break until around 9.30 on a 7am shift, because he had started earlier he went for his break around 8.15am. He put a pie in the microwave oven in the canteen and went to have a smoke while it was heating. He said time limits for breaks were not strictly applied on overtime shifts. He then went to eat his pie and went out for a second smoke a few minutes later. At this point he was approached by Mr Kelly who arrived on a forklift truck. He said that Mr Kelly's first comment to him was, "How many fucking breaks are you boys taking? That's the second fucking cigarette I've seen you smoking." The claimant replied, "Don't you be coming down here cursing to me, I am entitled to my break." Mr Kelly then said, "What the fuck is your problem?" and the claimant replied, "You are." The claimant agreed that he was sent home by Mr Kelly about 8.45am. He described Mr Kelly's attitude as aggressive. As the claimant was leaving the factory, Mr Kelly came over to him and told him he was to come in on Monday for a meeting and the claimant indicated that he couldn't come because he was busy. He indicated that Mr Kelly had replied "I've given you official notice" and the claimant indicated that he couldn't come. He also recounted the incident to do with operating the machine at the start of his shift in much the same terms as Mr Kelly. The claimant did not make any notes of his own but was subsequently interviewed about the matter. He did however put a note in the shift handover book addressed to Mr Lundy, saying that James sent him home on Saturday morning "for no good reason." He asked in that note to be paid up to 11.30am as this was the time he was supposed to be working to.
- On the basis of the evidence that we have heard and having observed both the claimant and Mr Kelly, our finding in this matter is that there was clearly an argument between the claimant and Mr Kelly. It is not necessary for us to make a finding as to who said what and the precise language used: what is clear is that the claimant was argumentative towards Mr Kelly and did not answer his questions, which was inappropriate, given that Mr Kelly was his superior. It is also clear that whether the claimant took a second break or not, he certainly took a longer break than he was entitled to. There was some suggestion by the respondent's representative that the claimant had been suspended from work on Saturday 3rd November: we are satisfied that this term was never used and that the claimant was not suspended from work.
- Following this incident the claimant came back into factory to work a shift on Sunday night and finished work at 7am on Monday morning. He did not attend at 11am on Monday as requested by Mr Kelly. Mr Kelly reported the matter in some detail to Aidan Lundy the Production Manager on Monday and gave Mr Lundy his notes of the exchange with the claimant on Saturday. The claimant arrived for work on Monday night at 11pm and was then told by Mr Lundy that he wished the claimant to attend an investigation meeting about an incident on Saturday, 3 November. Mr Lundy arranged to take the claimant home from work and he was not required to work his shift, but was paid. The claimant agreed that he had been told the incident was viewed as serious and that an investigation was to be carried out. A written hearing notification was given to the claimant which said he was invited to attend a disciplinary meeting (not an investigation meeting, as he had been told orally) on Tuesday, 6 November at 10am. He was advised of his right to be accompanied and he was also told in the notification that the alleged misconduct against him was "inappropriate, rude and aggressive behaviour and failure to comply with the rules." The notice did not indicate that disciplinary action could be taken or that it might result in the claimant's dismissal. He was not given a copy of the disciplinary policy or told where he might access it.
- The claimant was interviewed by Mr Lundy and Mr Billy Clelland on 6 November. At the outset of the meeting, Mr Lundy advised that this was an investigation meeting into serious misconduct, not gross misconduct. He advised the claimant, who was accompanied by Darren McCauley, that they were investigating inappropriate breaks, rude and aggressive behaviour and failure to follow a reasonable work instruction. He then asked the claimant to explain what happened on Saturday morning and the claimant gave a description of events as set out at paragraph 6 above. The claimant indicated that he was not sure of the exact words used at the 8.30 discussion. Mr Lundy read extracts from Mr Kelly's statement to the claimant, but he was not given a copy of this statement nor was he given access to the wording of the entirety of the statement. When he was asked about the details of the exchange between him and Mr Kelly over the breaks, he was specifically asked if he had said to Mr Kelly, "What's it got to do with you, fuck away off and give my head peace." And, "Fuck away off, you prick." All of these allegations were denied by the claimant. He also denied telling Mr Kelly, "You're my problem – so fuck away off." The claimant was advised that the incident was being treated as serious and Mr Lundy asked the claimant not to go to work that night but told the claimant that he, Mr Lundy, would speak to him within the next few days. At this point the claimant asked if Mr Kelly would be spoken to about his language and Mr Lundy's answer was that he was investigating the incident not the person. At no point did Mr Lundy or Mr Clelland advise the claimant that they now viewed his behaviour as gross misconduct and that his job might be at stake.
- There was subsequently an interview with Mr Kelly and Mr Lundy's note of this meeting indicates that Mr Kelly verbally repeated his written statement "with a high degree of accuracy." Mr Kelly was asked if he had sworn at any time, he said definitely not. He indicated that he was "in total control" and knew exactly what he said. Mr Lundy put to Mr Kelly the comments made by the claimant suggesting that Mr Kelly had sworn at him and this was denied. Mr Lundy also met with Mr Maliszewski, who was the only witness to the discussion on Saturday morning, but he indicated that he had not understood the whole discussion, because the claimant and James Kelly were speaking quickly and using slang. He did say he recalled Mr Kelly asking the claimant if he had a problem with him, but then went back to work as it was not his business.
- Late in the afternoon of 6 November following these meetings, Mr Lundy delivered a disciplinary notice to the claimant in person. The disciplinary notice asked the claimant to return for a meeting on 7 November 2007 at 11am to discuss the outcome of the investigation. That notice indicated:
"You have been made aware, you may be subject to disciplinary action following the investigation and you may be accompanied by a witness at the meeting." Again, it did not indicate that the alleged misconduct was being treated as gross misconduct or that the claimant was liable to be dismissed.
- The claimant attended for the meeting the following morning and he was seen by Mr Lundy and Mr Clelland. They had already had a discussion on 6 November 2007 and Mr Lundy's notes of that meeting indicate that they had agreed that they believed that the claimant had lied about the incident at 8.30am with Mr Kelly. They accepted Mr Kelly's account as being factually correct. The note goes on to say:
"The behaviour recounted in JK's statement constitutes gross misconduct ie unacceptable rude and aggressive behaviour. The inappropriate breaks mentioned constitute minor misconduct, failure to follow a reasonable request in relation to the request by JK about whether the break (illegible). We agreed to deal only with the gross misconduct.
"We agreed that there were no mitigating circumstances as GG had lied and pushed for action against JK.
"We agreed that dismissal due to gross misconduct was appropriate."
- At the meeting on 7 November, the claimant was advised that he was being dismissed due to gross misconduct ie unacceptable rude and aggressive behaviour. He was not told of all the evidence which had been gathered by management or given the opportunity to say anything in his defence or put forward any mitigating factors. The notice he was given confirmed that he had the right to appeal the decision and that the appeal should be made in writing to Brian McCann the Managing Director of the Company within 3 days. The claimant exercised his right of appeal and in a reply to a request of the Company, set the grounds of his appeal in a letter of 13 November 2007. He indicated in that letter that he had been dismissed for swearing at James Kelly when:
"he was the one who flew down to the canteen in a rage and started swearing at me. Also not that long ago Roger Coulter told James Kelly to fuck off, threw keys at him and went home and there wasn't even a disciplinary hearing over it. I don't know what James has against me but this is not the first time he has tried to get me into trouble. I challenge you to ask the workers in the factory how many of them have been sworn to by James."
- Mr McCann heard the appeal on 14 November 2007 in a meeting which lasted 10 – 15 minutes according to his own evidence. Mr McCann indicated that he had not been aware of any incident with Roger Coulter and that he had asked Mr Lundy to get him details of that incident. Mr Lundy said that he had spoken to Mr Kelly about the incident and relayed the information to Mr McCann. Mr Kelly's account of this incident was that he was having a discussion with Mr Coulter in relation to new procedures when Mr Coulter told him that he could "stick his fucking job," threw his keys at him and walked off. Mr Kelly indicated that he had told Mr Coulter to come back to the factory the following morning and that when Mr Coulter came in, he had apologised to Mr Kelly. Accordingly, Mr Kelly had not reported the matter and took the view that it was "a storm in a teacup." Mr McCann did not speak directly to Mr Kelly or to Mr Coulter about this incident. The claimant disputed Mr Kelly's account of the incident with Roger Coulter, but we cannot make any finding on this as Mr Coulter did not give evidence. Mr McCann indicated that he had not provided the claimant with any of the reports or notes which had been referred to him by James Kelly, Mr Lundy's notes and the correspondence from the claimant requesting the appeal. Mr McCann did not interview Mr Kelly about the incident on 3 November, nor did he investigate the claimant's allegations about Mr Kelly.
- Mr McCann indicated that he knew the claimant as "one of the employees he'd nod to in the workforce" but was much more fulsome in his comments about Mr Kelly. He was clear that he accepted Mr Kelly's account of the incident as he had found Mr Kelly to be sound, reliable, honest and "could deliver". He also said that Mr Kelly had a good reputation with staff and was respected, although he gave no evidence of this. On the basis of this, Mr McCann preferred Mr Kelly's account of events. When asked why the claimant had been dismissed, Mr McCann referred to "rude and aggressive behaviour, failure to follow reasonable instructions and behaviour which was not conducive to a friendly working environment." When it was put to him that the claimant had been dismissed only for rude and aggressive behaviour, he took the view that the grounds for dismissal could have been wider and that refusal to carry out a reasonable work instruction could have been added to the list. He did not specify what the instruction was. He referred at this point to the company Disciplinary Procedure, a policy which had been produced to the tribunal. He could not recall if he had consulted this policy at the time of the appeal, but said it would have been available to him. He confirmed that this policy had not been given to the claimant when proceeding with his appeal, nor had the claimant been told where he could obtain a copy. He also went on to say that if he could not believe an individual, then he believed this was conduct which was likely to lead to breakdown of trust and he confirmed that this was why Mr Green was dismissed. When it was put to him that he had brought in other factors which he thought were relevant on the appeal, but which had not formed part of the original grounds for dismissal, he indicated that he was attempting to judge the adequacy or otherwise of the decision to dismiss. Mr McCann indicated he had not conducted any appeals against dismissal before.
- The Tribunal found Mr McCann to be a less than impressive witness: his evidence was confused and contradictory. His conduct of the appeal left much to be desired in that he failed to investigate properly the Roger Coulter incident, which may have been a relevant mitigating factor. He did not check any of the allegations made by the claimant regarding Mr Kelly's conduct, preferring Mr Kelly's account of events on the basis that he (Mr McCann) had never heard Mr Kelly swear. This was in spite of his recognition that employees might be less inclined to swear in front of him, as he was the Managing Director. He also failed to give the claimant access to all the relevant statements, notes and records of meetings and the Disciplinary Procedure, or a copy of it. The claimant had previously a clear disciplinary record and had been employed by the respondent for almost three years at the date of his dismissal. There had been no complaints about the claimant's work, but these factors were not taken into account on appeal.
- The Disciplinary Policy used by the respondent states that its objective is to give employees the opportunity to improve their behaviour/performance. The section on procedure states that employees will be invited to attend a meeting to discuss the issue and to state their case before a decision on disciplinary action is reached. The policy sets out the right of appeal against any disciplinary penalty and also gives examples of the different categories of misconduct. "Extended tea and meal breaks "are categorised as minor misconduct and "Insubordination "is categorised as major misconduct. "Rude and aggressive behaviour "does not appear on the list. When Mr Lundy was asked how he and Mr Clelland decided that the claimant's behaviour should be classified as gross misconduct he replied that he used his discretion and thought it was serious enough. The outcome of the appeal was that the claimant's dismissal was confirmed.
- Following his dismissal, the claimant registered at his local Job Centre and applied for a number of jobs. He satisfied the Social Security Agency that he was actively seeking work and was paid Jobseeker's allowance of £66.52 per week from 19 November 2007 until 2 March 2008 until he found a new job as a van driver for Orchard Flowers, where his take home pay is currently £240 per week. While the claimant's pay with the respondent varied according to whether he was working over time, his average pay over the twelve weeks before his dismissal was £414.82 gross, £316.20 net per week and his average net pay over the preceding year was £278.82 per week. His pay varied from week to week and we did not hear any evidence about the usual number of hours worked each week.
The Relevant Law
- The relevant law in relation to the statutory disciplinary procedures is found in Schedule 1 to The Employment (Northern Ireland) Order 2003, which sets out a three-stage procedure for the standard disciplinary procedure. First, the employer must set out in writing the employee's alleged misconduct and characteristics, or other circumstances which lead him to contemplate dismissal or disciplinary action against the employee. This statement must be sent to the employee and he or she must be invited to a meeting to discuss the matter. Secondly, the meeting must take place in advance of disciplinary action, unless the disciplinary action consists of suspension. The employer must advise the employee of the basis for his grounds for disciplinary action and the employee must have an opportunity to consider his response. The employee must take "reasonable steps" to attend the meeting, after which the employer must advise the employee of his decision and notify him of his right to appeal. Thirdly, if the employee wishes to appeal, he must inform the employer and a further meeting must take place, after which the employer must inform the employee of his decision.
- The right not to be unfairly dismissed is set out in Articles 126 and following of the Employment Rights (NI) Order 1996. In this case, we are concerned particularly with the provisions of Arts. 130 and 130A, which provide as follows :
- "Art130 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it –
…………
(b) relates to the conduct of the employee,…………
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-
(a) depends on whether in the circumstances ( including the size and the administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee and
(b) shall be determined in accordance with equity and the substantial merits of the case.
Art 130A (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 I of Schedule1 to the Employment (NI) Order 2003 ( dismissal and disciplinary procedures ) applies in relation to the dismissal,
(b) the procedure had not been completed, and
(c) on completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Art130 (4) (a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (NI) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order."
- Article 17 of the Employment (NI) Order 2003 provides that if the statutory procedures have not been complied with by fault of the employer, the award of compensation to the employee may be increased by between 10% to 50%. If the employee has failed to comply with procedures, then the compensation may be reduced by similar percentages.
- We have also taken account of the Code of Practice on Disciplinary and Grievance Procedures produced by the Labour Relations Agency, which provides guidance on best practice in industrial relations and is to be taken into account by Tribunals in deciding whether the procedures applied have been fair and compliant with legal requirements. The Code sets out core principles at para. 5, which include using procedures to help and encourage employees to improve rather than just as a way of imposing a punishment; providing employees with an opportunity to state their case before decisions are reached; never dismissing employees for a first disciplinary offence, unless it is a case of gross misconduct; allowing an opportunity of appeal and acting consistently.
- Para. 14 of the Code sets out how formal action should be pursued and specifically provides that the employee should be made aware of the allegations against him and should be given copies of any documents that will be produced at the meeting. Moving to possible sanctions, para.58 of the Code indicates that employers should inform employees of the likely consequences of breaking disciplinary rules. Para. 59 deals with gross misconduct and states:
"Acts which constitute gross misconduct are those resulting in a very serous breach of contractual terms and are best decided by organisations in the light of their own particular circumstances. Such acts, whilst they occur only once, might be said to strike at the very root or heart of a contract of employment such as to destroy the essential bond of trust and confidence between the parties to the contract."
Examples of gross misconduct can include matters such as theft or fraud, violence or "very serious" insubordination, discrimination, incapability through drink or drugs or breach of confidence.
- Turning to relevant case law, the decision in Burchell v British Home Stores [1978] IRLR 379 makes it clear that an employer must take all reasonable steps to carry out a full investigation of the alleged misconduct and that at the date of dismissal he must have had reasonable grounds to believe in the employee's misconduct. The Tribunal has to consider if the decision to dismiss was within the band of reasonable responses open to the employer, given the information available at the time.
- If the Tribunal believes that the decision to dismiss is unfair because the procedures employed were flawed, then they must go on to consider whether, if proper procedures had been applied, the employee would still have been dismissed. If so, then the dismissal is not automatically unfair. (Polkey, as amended by Art 130A of the Employment Rights (NI) Order 1996, set out above.)
- The Tribunal must not substitute its own decision for that of the disciplinary panel or the appeal panel which took the decision to dismiss. However, according to the decision in Securior Ltd. v Smith [1989] IRLR 356, the question we must consider is whether or not the employers acted reasonably and within the band of reasonable responses in acting upon the findings and conclusions of the disciplinary, or in this case, appeal panel. In that case, where two employees were dismissed for the same incident, one was successful on appeal and one not, in determining the fairness of the dismissal the question is whether the appeal panel's decision is so irrational that no employer could reasonably have accepted it. This is a different situation to that in the present case, where the claimant has argued that he was treated in a way inconsistent with a colleague involved in a similar incident, who was not even disciplined, let alone dismissed.
- Consistency of treatment is important, and relevant where the conduct of an employee has been deemed acceptable and especially where an employee has been led to believe that certain conduct would not lead to dismissal (Hadjioannous v Coral Casinos [1981]IRLR 352 EAT). Even if an employer has agreed with a trade union that certain behaviour will in future be treated as gross misconduct warranting dismissal, a dismissal on such grounds will be treated as unfair if that decision has not been communicated to the employees. (W Brooks and Son v Skinner [1984] IRLR 379).
- In relation to the appeal panel confirming a dismissal on different grounds to the original decision to dismiss, an employee should only be found guilty of an offence on which he is charged. (Strouthos v London Underground [2004] IRLR 663 CA)
Decision
- Taking the questions which we set out at the start of this decision, we will now deal with them in turn.
1. Did the respondent's disciplinary procedures meet the requirements of the statutory disciplinary procedures as set out in the Employment (Northern Ireland) Order 2003?
We have set out the elements of the statutory procedures above and having considered the procedures followed, we believe that the respondent's procedures met the basic minimum requirements of the statutory procedures of notification of the alleged misconduct, disciplinary meeting and appeal.
2. Were the disciplinary procedures applied by the respondent procedurally fair?
We find that the procedures followed by the respondent were not procedurally fair or in accordance with the LRA Code of Practice on disciplinary and grievance procedures. The claimant was not given access to a copy of the respondent's disciplinary procedure to prepare for his disciplinary meeting, nor was he given copies of the documents and statements used in the case against him. There was some confusion as to whether the first meeting was an investigatory meeting or disciplinary meeting. The claimant was not advised in advance of either of the two meetings he attended that his alleged misconduct was being treated as gross misconduct and that he was liable to be dismissed if there was a finding against him. This may well have influenced the claimant's approach to the disciplinary meetings and to the appeal.
The respondent's disciplinary procedure was not considered or followed by Mr Lundy or Mr Clelland in their dealings with the claimant. First of all, the investigation meeting was the only meeting before they took their decision as to the claimant's guilt, he was not given an opportunity to state his case and put forward any mitigating factors before decision was reached. After the investigation meeting, Mr Lundy and Mr Clelland reached their decision and informed the claimant of the outcome the next day, but without any discussion.
Secondly, the disciplinary procedure does not include "rude and aggressive behaviour" in any category of misconduct. Extended breaks, which the claimant did take, we believe, are listed as minor misconduct and Insubordination, of which he was certainly guilty, is listed as major misconduct. Neither would carry the penalty of dismissal for a first disciplinary offence. Thirdly, the disciplinary meeting did not take account of any mitigating factors, because the claimant alleged that Mr Kelly had sworn at him and the managers hearing the disciplinary believed he was lying.
On the appeal, Mr McCann did not fully investigate the comments and allegations made by the claimant. He obtained a second-hand and one-sided report of the incident with Mr Coulter as his information came from Mr Kelly, but did not speak directly to either of the individuals involved.
Mr McCann also acted unfairly in considering other grounds for dismissal than those on which the claimant had been dismissed. This is quite inappropriate and was done without the claimant having been made aware that it was even being done. Moreover, the disciplinary procedure was available to Mr McCann, but not used by him: had he used it, he may have considered whether rude and aggressive behaviour had been correctly categorised as gross misconduct and also whether the claimant had been treated consistently with other colleagues such as Roger Coulter. We believe that the disciplinary procedure and appeal procedure applied by the respondent were seriously flawed and if a proper procedure had been followed, the claimant may not have been dismissed. The claimant's approach to the disciplinary meetings may have been different, the respondent may have categorised the misconduct differently and so imposed a different penalty, more information on the procedure would have been available to the claimant and so dismissal was not inevitable.
3. Did the decision to dismiss the claimant fall within the reasonable band of responses open to an employer?
We are aware that we must not substitute our decision for that of the disciplinary or appeal panel, but we must decide if the decision to dismiss was fair. We believe that, had a proper procedure been followed, the employer may have categorised the misconduct as major, rather than gross, would have conducted the meetings differently, applied their own procedures in a fairer way and allowed the claimant to put his case and make arguments in mitigation before a decision was made. We find, therefore that the decision to dismiss was outside the band of reasonable responses open to an employer in this situation.
4. Taking account of the findings in respect of question (2) and (3), was the claimant unfairly dismissed?
Given the replies to questions (2) and (3) above, we find that the claimant was unfairly dismissed.
5. If the claimant was unfairly dismissed, did he contribute to his dismissal by his own conduct?
We have set out above our findings of fact in relation to the incident between the claimant and Mr Kelly, from which it is clear that the claimant did indeed contribute to his dismissal by his behaviour. First of all, he took an extended break, which was contrary to the company rules and secondly, he was rude and argumentative to his team leader, who was entitled to ask the questions he did of the claimant and to expect a civil answer. The claimant's behaviour would have justified disciplinary action on the part of the employer and accordingly we have decided to reduce the compensatory award in this case by 25%.
Calculation of Compensation
32. We have considered the correct way to approach the calculation of compensation in this case. Because there was no evidence given on the average number of hours worked each week and the average earnings, we believe it is correct to follow the provisions of Art. 20 of the Employment Rights (NI) Order 1996, which provides that where there is no normal weekly wage, a week's pay is to be calculated by taking an average of the last 12 weeks' pay received. Accordingly, the average week's pay received by the claimant was £414.82 gross, £316.20 net.
- We calculate the award of compensation as follows :-
The claimant was aged 30 at the date of dismissal and had two complete years' service. The statutory ceiling for award of a week's pay for the basic award at the date of dismissal was £310 and the basic award is calculated on the basis of gross pay.
Basic award
£310 x 2 years service = £620
Compensatory Award
Loss to date of hearing
12-11-07 to 03-03-08 =16 weeks @ £316.20 = £5059.20
03-03-08 to 06-08-08=23 weeks @ [£316.20 - £240] £76.20 = £1752.60
Future loss 26 weeks @ £76.20 = £1981.20
Total compensatory award £8793.00
Apply deduction of 25% (£2198.25)
Balance compensatory award = £6594.75
Loss of statutory rights £300
TOTAL AWARD = £7514.75
This is a case where the Recoupment of Benefits Regulations apply. The protected period is from 19 November 2007 until 2 March 2007 and the prescribed element of the award is £3794.40 (£5059.20 less 25%). The total amount of benefit received during that period was £1064.34.
Accordingly, for the reasons set out above, we find that the claimant was unfairly dismissed and we order the respondent to pay to the claimant the sum of £7514.75.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
Chairman:
Date and place of hearing: Belfast, 9 May and 5, 6 August 2008
Date decision entered in the register and issued to the parties:
