THE INDUSTRIAL TRIBUNALS

CASE REF:	1997/10

CLAIMANT:			Kenny McCorriston

RESPONDENT:		Calvert Office Equipment Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Mr T Waite
			Mr R Gray

Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr Hopkins, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Issue

1.	The issue for the tribunal to determine was whether the claimant was unfairly dismissed by the respondent.

The respondent accepts that it dismissed the claimant but asserts it was for a potentially fair reason, namely gross misconduct.

Findings of fact

2.	The claimant was employed by the respondent.  He was a Field Engineer engaged to carry out the maintenance and repair work to office equipment, mainly photocopiers.

3.	On 10 June 2010, Mr Trevor McRoberts, the respondent’s Service Manager, wrote a letter to the claimant requiring him to attend a disciplinary hearing to deal with a number of topics.  Mr McRoberts had been alerted to an issue by a Technical Supervisor who had been asked to call with a customer two days after the claimant had attended.  It was clear to the Technical Supervisor that no work had been carried out on the machine in question but the claimant’s worksheet showed that he had carried out work to the machine.  There were also issues around the length of time the claimant stated that he was on the customer’s premises.  As a result of this query, Mr McRoberts carried out an investigation of all of that particular week’s work by the claimant and found other matters which he felt required explanation.

4.	Mr McRoberts identified the following areas to be considered at the disciplinary hearing:-

(1)	Timekeeping irregularities between Monday 24 May 2010 and Friday 28 May 2010.

(2)	Concerns regarding customer’s signatures between Monday 24 May 2010 and Friday 28 May 2010.

(3)	Declaring ‘sick’ between Wednesday (am) 14 April 2010 and Tuesday 20 April 2010, but with substantial company car movements during this period.

(4)	Discrepancies with business mileage declaration for the months between January – April 2010.

(5)	Refusing to attend a service call on Friday 28 May 2010 after a verbal request.

5.	The letter set out further details of each of the heads of concern.

6.	The disciplinary hearing was held on 16 June 2010.  The claimant was accompanied by a colleague and the meeting was held by Mr McRoberts with notes taken by Miss Alison Black.  At the meeting, Mr McRoberts put the findings of his investigations to the claimant and gave him an opportunity to explain.  Mr McRoberts dealt with each issue in turn.

Timekeeping

7.	Mr McRoberts put a range of specific incidents to the claimant at the meeting.  The respondent operates a tracker system on the cars of the Field Engineers.  This enables the company to know when the keys are in the ignition of a car, either with the engine switched on or off.  Mr McRoberts put to the claimant a number of incidences when the tracker system identified the keys being in the ignition of the car.  The claimant was unable to provide explanations for any individual circumstance but provided some generic explanations for what he might have been doing on such occasions.  The claimant also accepted that at times he clocked on early and clocked off late.  Finally, the claimant accepted that there was an occasion outside Gallaghers Factory in Ballymena that he was relaxing or sleeping in his car for 40 minutes.  The claimant told Mr McRoberts that he was relaxing and reading the paper and ‘got into it’.

8.	At the meeting the claimant accepted that he told ‘a blatant lie’ in relation to the work allegedly carried out to the machine at the Irish Society Primary School, Coleraine.

	Customer’s signatures

9.	Mr McRoberts put to the claimant that there were situations in which he made declarations that customers were signing at time when his vehicle tracker show that the vehicle was at his home address.  Mr McRoberts also put it to the claimant that he was signing the customer’s names.  The claimant, at the disciplinary hearing, said he did not realise the implications of signing the customer’s name.  He confirmed he had been doing it from the start of his employment.  He also accepted that he was putting the signatures on after he had arrived home.  

	Sick declaration

10.	This did not form part of Mr McRoberts’ ultimate decision.

	Mileage discrepancies

11.	The respondent allowed the claimant to use his company car for private mileage.  It was the responsibility of the claimant to provide his declared business mileage on a monthly basis.  He recorded the milometer reading at the start of the day and when he finished work.  The balance of any miles used on the vehicle were private miles for which the claimant was responsible.  Mr McRoberts put it to the claimant that there were substantial discrepancies in the mileage claimed by him resulting in a substantial over-claim from the company.  The claimant was asked to explain why there was such a large variance between the declared business mileage and that shown by the vehicle tracker.  He informed Mr McRoberts that his wife was using the car and he was not sure what she was using it for.  He guessed the mileage of the vehicle because he would forget to write the mileage in at the start and end of each of each day.  He said that the discrepancies were not malicious, just ‘sloppy’.

	Refusing a call

12.	It was put to the claimant, by Mr McRoberts, that he had received a call for Gallaghers Ballymena on Friday 28 May 2010 at 1145 hours.  He did not attend the call and was telephoned at approximately 1430 hours by one of the dispatchers.  The claimant refused to return to Ballymena as he was en route to Millburn Primary School in Coleraine.  The claimant was near Ballymoney when the telephone call from the dispatcher was received.  Mr McRoberts put it to the claimant that this was a failure to carry out a reasonable work instruction.  

	Mitigation

13.	The claimant told Mr McRoberts at the meeting that he was going through a hard time at home.  He characterised his behaviour as sloppy not malicious.  He pointed out that he had worked for the respondent for six years and that some customers had put in commendations about his work.  

14.	At the hearing the claimant disputed that he received the call for Gallaghers at 1145 hours and said that he was having problems with his PDA (this is a handheld device which records the calls sent to each engineer).  In any event, the claimant acknowledged that he had been called by the dispatcher but said that he was only 15 minutes from Millburn Primary School and he had promised that he would call with them.  Gallaghers was a new and important customer for the company and was a priority customer.  This information would also have come through the claimant’s PDA.  

15.	On 18 June 2010, Mr McRoberts wrote to the claimant with his findings.  He confirmed that the claimant was unable to give justifiable reasons behind the timekeeping irregularities, that the claimant openly admitted that he signed for and on behalf of customers by name and that on several occasions, including the last call of the day, not only did he sign the customer’s name but there were major time differences between finishing the call and the completion of the signature, that he accepted the discrepancies in the business mileage and that there was no justifiable reason to refuse to attend the call to Gallaghers Ballymena on Friday 28 May 2010, even after a verbal request from the call control personnel.

16.	Mr McRoberts concluded that the claimant’s conduct fell into the category of gross misconduct which he specified as falsification of records, dishonesty, forgery, misrepresentation, fraud and refusal to carry out a reasonable work instruction.  He confirmed that he was terminating the claimant’s employment forthwith and advised the claimant of his right of appeal of the decision.

17.	The claimant then wrote to Mr Calvert, the managing director, asking him to accept a letter of appeal on the basis that he did not accept the grounds of dismissal, namely that he had been found guilty of misconduct.  Mr Calvert conducted an appeal hearing on 12 August 2010.  The claimant had a different witness present, Mr Dunleavy.  Also present were Mr Calvert and Miss Black who was a witness for the company.  Mr Calvert gave the claimant an opportunity to provide his further comments on the matters raised.  The claimant accepted that he admitted to Mr McRoberts he told a blatant lie.  The claimant accepted in this meeting that he had told Mr O’Kane, the Technical Supervisor, that he had not carried out the work he had claimed to the machine at the Irish Society Primary School in Coleraine.  

18.	On 20 August 2010, Mr Calvert wrote to the claimant to confirm that he had carefully considered the points raised at the appeal hearing.  He pointed out that at the appeal hearing there were no new points or matters of evidence raised.  In relation to the claimant’s personal circumstances, Mr Calvert said that although he attempted to give the claimant the benefit of the doubt, he could not accept that the difficult circumstances that the claimant was in justified dishonesty, falsification of records or the claimant’s inability to explain in a credible way his behaviour.  Mr Calvert also pointed out that in his appeal the claimant did not appeal the findings regarding timekeeping irregularities, the business mileage discrepancies or the refusal to attend a service call.  Consequently, he confirmed the finding of gross misconduct and upheld the decision to dismiss.  

The law

19.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has a right not be unfairly dismissed.  By Article 130 to determine whether a dismissal of an employee is fair or unfair it is for the employer to show that the reason for the dismissal falls within the terms of that Article.  By Article 130(2)(b) one such reason relates to the conduct of the employee.  If a potentially fair reason is established the tribunal should then consider whether the respondent acted reasonably in all the circumstances.  Dismissal must be within the band of reasonable responses which a reasonable employer might take and the tribunal must not substitute its own view for that of the employer.

20.	Following the authority of British Home Stores  v  Burchell [1978] IRLR 379, the tribunal must be satisfied that the employer at the time of the dismissal had a genuine belief in the employee’s guilt of that misconduct, had reasonable grounds to hold that belief and carried out such investigation as was reasonable in all the circumstances.  The penalty which the employer then imposes as a sanction must also be within a range of reasonable responses which a reasonable employer might take.  

21.	In the Northern Ireland Court of Appeal in the case of Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47, the court reminded tribunals that the function of the tribunal is to consider the reasonableness of the employer’s conduct not simply whether they [the members of the industrial tribunal] considered the dismissal to be fair and that in judging the reasonableness of the employer’s conduct a tribunal must not substitute its decision as to what was the right course to adopt for that of the employer.  The Court of Appeal also stressed that the tribunal should not re-hear or re-investigate allegations but should consider whether the employer acted reasonably having regard to the material available to it and the investigation carried out by it.  

Conclusions

22.	On the evidence heard, the tribunal is satisfied the respondent carried out an extensive investigation and provided the claimant with every opportunity to explain the circumstances of his behaviour.  There was an investigation carried out by Mr McRoberts followed by a detailed letter setting out the queries which the respondent felt required explanation.  A disciplinary hearing was arranged at which the claimant had full notice and at which he was accompanied by his representative.  The claimant had every opportunity to make any points he thought appropriate.  In fact, the claimant accepted, in a large part, the charges put to him.  There was a full appeal process.  The tribunal is satisfied the investigation was thorough and was reasonable in all the circumstances.  It was reasonable for Mr McRoberts to have a genuine belief in the claimant’s guilt of the misconduct alleged and the investigation and disciplinary process disclosed reasonable grounds to hold that belief.  There was nothing said by the claimant at the appeal hearing to cause Mr Calvert to reach a contrary view.  Most of the conduct alleged by the respondent was admitted by the claimant.  Much of the claimant’s evidence at tribunal was focused on the reasons for his actions and the sanction as opposed to the fact that he accepted most of the allegations were correct.

23.	The tribunal further finds that the sanction of summarily dismissal was within the range of reasonable responses which a reasonable employer might make.  The claimant admitted a range of serious issues.  The respondent felt that many of these raised issues of dishonesty and fraudulent behaviour.  It was their view that the claimant’s behaviour undermined the trust and confidence of the respondent in him to such a degree that it was reasonable to summarily dismiss the claimant.

24.	The tribunal concludes, unanimously, that the claimant was not unfairly dismissed.

Chairman:

Date and place of hearing:	9 – 11 February 2011, Belfast

Date decision recorded in register and issued to parties: