THE INDUSTRIAL TRIBUNALS  

CASE REF:    1475/11 

CLAIMANT:	Anthony McCrory

RESPONDENT:	John McQuillan Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.  The claimant's claim is dismissed by the tribunal, without further Order.  

Constitution of Tribunal:

Chairman:	Mr J V Leonard

Members:	Mrs C Stewart
	Mr P McKenna

Appearances:	

The claimant appeared and represented himself.

The respondent was represented by Mr Ian Carroll of EEF, Northern Ireland.

Reasons

1.	The tribunal heard oral evidence on behalf of the respondent from Mr Ronan McQuillan the respondent’s contracts manager, Mr Paul Brogan the respondent’s contracts director, Ms Lyndsay McClelland, the respondent’s human resources manager, and the claimant gave oral evidence on his own behalf.  The tribunal also received in evidence an agreed bundle of documents, consisting of some 103 pages, and additional documents were also introduced into evidence by agreement.  Upon conclusion of the evidence, the claimant and the respondent’s representative made oral submissions to the tribunal.

The Issue

2.	In his claim to the tribunal dated 3 May 2011 and received by the Office of Tribunals on 29 June 2011, the claimant claimed unfair dismissal.  In the respondent’s response to that claim which was dated 12 August 2011 and received by the Office of Tribunals on that date, the respondent contended that the claimant had been dismissed for a fair reason and that the dismissal was fair in all the circumstances of the case.  It was also contended that the claim had not been lodged in time.  As a preliminary issue, the tribunal heard argument regarding the tribunal’s jurisdiction in respect of the matter of an alleged postal delay between the date that the claimant stated that he had posted his claim to the Office of Tribunals and the date of recorded receipt.  Having heard the respective arguments, the tribunal determined that it had not been reasonably practicable for the claim to have been presented within the statutory time limit.  Accordingly time was extended appropriately by the tribunal.  Accordingly, the tribunal determined that it did have proper jurisdiction to deal with the claim and the matter proceeded to a full hearing.

3.	It was mutually agreed between the respective parties that the tribunal would confine its decision in the first instance to the determination of liability only in respect of the claim for unfair dismissal.  Accordingly that is the decision made herein.  

The Tribunal’s Findings of Fact

4.	In consequence of the oral and documentary evidence before it, the tribunal on the balance of probabilities determined the following material facts:-

	(1)	The respondent company is a civil engineering and highway maintenance contractor which at the material time employed approximately 150 employees.  Paul Brogan is contracts director; Ronan McQuillan is contacts manager; Lyndsay McClelland is human resource manager and John McQuillan and Paul O’Hagan occupy supervisory positions within the respondent company.

	(2)	The claimant commenced employment with the respondent on 25 September 2000 and he continued in that employment until his dismissal, which occurred on 25 March 2011.  The claimant was employed as an operative, the particular job being known as a “banksman”.  The job of a banksman included, amongst other functions, what was described to the tribunal as being the “eyes and ears” of the lorry driver.  In his evidence to the tribunal Ronan McQuillan explained briefly some of the contracting operations of significance.  These operations included a loaded lorry reversing in order to tip a load of road surfacing material as accurately as possible at a particular location.  The job of banksman required the exercise of some considerable care and skill safely and properly to guide the lorry into position and in order to conduct both this and other such operations.  There was a significant health and safety dimension to conducting these particular tasks and a potential risk of personal injury or even death were ever present, both to the respondent’s operatives on site and also to members of the public.  Other risks included potential loss and damage to property.  Any one of these risks might have been the cause of a very significant loss, injury or even fatality to the respondent and its operatives, or to third parties.  In fulfilling his job function, by all accounts the claimant was an experienced and a competent banksman and operative. 

	(3) 	Paul Brogan gave evidence to the tribunal concerning the manner in which the respondent had expended a considerable investment, both in terms of time and expense, in addressing health and safety issues in and concerning the workplace and methods of operation.  The respondent had prepared and had given to all employees, including to the claimant, a company induction manual and handbook.  The claimant had signed for receipt of that documentation on 22 June 2006.  The claimant was also issued with a written statement of main terms and conditions of employment, including a disciplinary and grievance procedure, on 29 February 2008.  In paragraph 1.4 of this latter document, under the title of “Gross Misconduct”, were set forth a number of examples of such gross misconduct.  These examples included being in the possession of, or under the influence of, alcohol or illegal substances.  This document set forth a specified procedure for dealing with disciplinary hearings and/or appeals.  The claimant did not take issue with any of this and he accepted that these conditions formed a part of his contractual terms and conditions of employment with the respondent.

	(4)	The particular events that led to the respondent's dismissal of the claimant commenced on a day, the 18 March 2011, when the claimant was working on site at or near Magheralin with a squad of other operatives.  Some equipment suffered a mechanical failure.  The operatives were temporarily stood down at that point, pending the equipment fault being fixed.  Paul O’Hagan’s witness statement which was subsequently prepared as part of the respondent's disciplinary investigation, indicated that on the day in question he had been driving his car when he observed the claimant.  Paul O’Hagan asserted in his statement that, firstly, he observed the claimant apparently taking a drink of something and then removing his high visibility vest and making his way into licensed premises.  Paul O’Hagan telephoned John McQuillan and informed the latter that he had seen the claimant going into the licensed premises.  Paul O’Hagan then proceeded with other business.

	(5) 	A witness statement prepared by John McQuillan in connection with the disciplinary investigation and dated 21 March 2011, records that on 18 March 2011, John McQuillan received a phone call from Paul O’Hagan, claiming that the latter had seen the claimant walking into a bar in Magheralin.  John McQuillan went to investigate and he parked his vehicle outside the bar.  He walked into the licensed premises and he saw three men standing at the bar.  He observed the claimant drinking what looked like a pint of Magner’s cider.  He asked the claimant to come outside to speak with him.  The claimant stated to John McQuillan that he was in the bar making a bet.  John McQuillan responded that he had seen the claimant setting a pint down and alleged that he had caught the claimant red-handed with a drink.  John McQuillan then stated that it was 11.40 am and that the claimant was suspended until further notice.  John McQuillan’s statement records that he could smell that the claimant had been drinking.  

	(6)	On 21 March 2011, Lyndsay McClelland wrote to the claimant confirming that the claimant had been suspended on full pay from Friday, 18 March 2011, whilst the respondent investigated allegations of gross misconduct which were that on Friday, 18 March 2011 the claimant was found in a pub partaking in and under the influence of alcohol during working hours.  The investigatory meeting was arranged to have been conducted by Ronan McQuillan on 23 March 2011.  However it appears that the claimant arrived early.  A note made by Lyndsay McClelland who met with the claimant that day records that she observed that the claimant was quite drunk and smelled of alcohol.  The claimant denied to her that he had been drinking, but he did admit to her that he had been drinking heavily at night for the previous few weeks.  The claimant seems to have left that meeting with Lyndsay McClelland prior to Ronan McQuillan attending on that day.  Ronan McQuillan was provided with a note of the meeting between the claimant and Lyndsay McClelland. 

	(7)	By letter dated 23 March 2011, Lyndsay McClelland on behalf of the respondent invited the claimant to attend a disciplinary hearing arranged for 25 March 2011, to discuss the allegation that the claimant had been in a pub and partaking of alcohol during working hours.  Together with the said letter were enclosed copies of the witness statements from Paul O’Hagan and John McQuillan, as mentioned above.  The claimant was advised of his right to be accompanied at the meeting and it was confirmed that the outcome could be summary dismissal, but that a decision on this would not be made until the claimant had had a full opportunity to put forward his version of events. 

	(8)	The disciplinary hearing proceeded on 25 March 2011, attended by Ronan McQuillan, Lyndsay McClelland and by the claimant.  At the outset, the claimant confirmed that he was content to proceed without being accompanied.  It appears that the claimant made a request for the proceedings to be recorded at the start of the meeting.  He was informed by Lyndsay McClelland that the meeting would be recorded, but there seems to have been some misunderstanding between the two, in that the claimant explained to the tribunal that he had indeed meant to refer to the meeting being voice-recorded, and Lyndsay McClelland for her part was referring to a written record of the meeting being made.  The tribunal had sight of a manuscript record of the meeting which was made by Lyndsay McClelland, and of a typed transcript of that manuscript record.  The transcript differed slightly from the manuscript.  This was explained to the tribunal by Lyndsay McClelland on the basis that she had slightly amended the typed version from the manuscript version, based upon her own recollection of events and she maintained that the typed version was made very soon after the meeting.  Both the manuscript version and the typed version were inspected by the tribunal.  Both purported to record an express admission on the part of the claimant that he had been drinking.  According to these written records, this admission on the claimant’s part appears to follow on from earlier denials by the claimant in the course of the meeting that he had been drinking.  The tribunal finds it somewhat unhelpful that the typed version did not more faithfully follow the manuscript version in the central issues, one material illustration being that the manuscript note records a question on Lyndsay McClelland’s part addressed to the claimant, “So you were drinking?” to which the claimant is recorded as responding “yes”.  In the typed version, this question on Lyndsay McClelland’s part is recorded as being, “So you were drinking in the pub?” to which, again, the claimant’s response is recorded as “yes”.  Nonetheless, reading through both versions, there is quite clearly recorded a series of denials initially on part of the claimant.  However, these are then followed by a recorded admission on the claimant’s part, as mentioned above. 

	(9) 	For his part, the claimant vehemently denied in his evidence to the tribunal that he had made any such an admission in the course of the disciplinary hearing.  In view of these contrasting positions, the tribunal was required to determine the relative credibility of the respective witnesses in order to reach a finding concerning the material evidence upon which the respondent's decision to dismiss was based.  The tribunal’s finding is that it prefers the evidence of the respondent's witnesses.  Therefore the tribunal thinks it more probable than not that at the disciplinary hearing the claimant did expressly concede that he had been drinking in the pub on that day.  The tribunal noted that in the course of the disciplinary hearing and the subsequent appeal the claimant did put forward a number of different versions of events and circumstances that he alleged had transpired.  These included, variously, that he was merely standing at the bar placing a bet, that he was walking towards the door when John McQuillan entered the pub, that he had had a drink bought for him by another person but he had not consumed that drink. There also were a number of versions provided by the claimant regarding his exact location and conduct when John McQuillan entered the bar.  These various and somewhat conflicting versions tended to undermine the claimant’s credibility.  For this reason, the tribunal generally preferred the evidence of respondent’s witnesses. 

	(10) 	The respondent issued a letter to the claimant confirming his dismissal as the outcome of the disciplinary hearing.  That letter bears the date 23 March 2011, but refers to a disciplinary hearing “held today”, the date of that disciplinary hearing being 25 March 2011.  In his submissions, the claimant made the case that there had been a pre-determined outcome to the matter.  He contended that the evidence of this predetermination was borne out by the date of the letter, 23 March 2011.  In order to deal with that contention, in the respondent’s evidence there was produced a “screen shot” of the electronic record of the creation of the letter in question.  This evidence, on balance, supports the proposition that the letter was indeed created on 25 March and that it was not created the 23 March 2011.  Having heard the evidence and the respective submissions in this regard, the tribunal determines that in all probability the letter was generated after the conclusion of the disciplinary hearing on 25 March 2011.  There is no persuasive evidence in support of any predetermined outcome made prior to the disciplinary hearing, from that letter. 

	(11) 	The claimant was advised by the respondent of his entitlement to appeal within a specified period.  The claimant’s appeal was substantially delayed on account of his illness.  By letter dated 19 April 2011 the claimant wrote to the respondent requesting an appeal and the respondent agreed to extend the period of time in which the appeal could be submitted by the claimant, due to the particular personal circumstances affecting the claimant at that time (with which the tribunal does not need to concern itself in this decision).  The appeal then proceeded on 9 May 2011, chaired by Paul Brogan with Lyndsay McClelland and the claimant being in attendance.  In the course of the appeal the claimant maintained his denial that he had been drinking on the day in question.  Paul Brogan in the course of that meeting, as far as the written record of the meeting demonstrates, went through the earlier record of the disciplinary hearing and the witness statements and the information which was available to the respondent at the time.  For the most part, the claimant did not take issue with this written record and the tribunal accepts that it is an accurate record.  Paul Brogan explored with the claimant the circumstances surrounding the events on the day in question and whether the claimant had indeed been drinking.  Paul Brogan queried with the claimant if John McQuillan had walked in five minutes later, would the claimant have had a drink. The claimant’s response was that he couldn’t say for sure.  Later the written record of the meeting records the claimant stating that no one had bought him a drink, but that someone had offered to buy him a drink, but that he had refused.  These recorded comments, yet again, illustrate the inconsistency of approach on the claimant’s part to the provision of his version of events.  This is so both in regard to the disciplinary hearing and also subsequently at the appeal hearing. 

	(12) 	By letter of 12 May 2011, Paul Brogan wrote to the claimant confirming the outcome of the appeal.  In his letter, Paul Brogan mentions two issues that had been raised by the claimant in his appeal, together with the respondent’s response to these.  These two issues concerned, firstly, the date of the dismissal letter and, secondly, the claimant’s contention that he had been in the pub to place a bet and that he had consumed no alcohol.  In both cases the respondent’s response to these issues was set forth, including a statement of the finding that the supervisor (John McQuillan) had been 
re-interviewed in relation to the relevant parts of his statement and that John McQuillan had confirmed that the claimant had been setting down a drink when John McQuillan had entered the bar to locate him.  The belief that this was an alcoholic drink was stated and that John McQuillan also confirmed a smell of fresh alcohol on the claimant’s breath when he spoke to him on the day in question.  Paul Brogan confirmed that the outcome was that the appeal against dismissal was refused and the decision to dismiss was upheld.

The Applicable Law

5.	The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.  It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal.  The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include the conduct of the employee.  The guidance bearing upon the application of these statutory provisions is derived from a number of leading cases. In the general application of the statutory provisions in respect of unfair dismissal, the leading authority remains the case of Iceland Frozen Foods v Jones [1982] IRLR 439 in respect of which guidance has been given and approval confirmed by the Court of Appeal in Northern Ireland in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. 

	The tribunal in the exercise of its function is therefore very clearly guided by Iceland. Therein the guidance (as given by Browne-Wilkinson J and bearing in mind that the statutory provisions referred to below are the equivalent to Article 130 of the 1996 Order in Northern Ireland and that there is now “neutral” burden of proof) is stated as follows:- 

	(1)	the starting point should always be the words of section 57(3) themselves;

	(2)	in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

	(3)	in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

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

	(5)	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.'

	Iceland requires the tribunal to bring to bear an entirely objective assessment of matters and prohibits the tribunal from determining the matter in any way subjectively in the application of the so-called “band (or range) of reasonable responses” test.  In misconduct cases, the Court of Appeal in Northern Ireland in Rogan has also endorsed again the approach in British Homes Stores v Burchell [1980] ICR 303 where (to condense the approach suggested by Arnold J), what the tribunal has to decide is whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct at that time.  To do so:- 

(a)	first, there must be established by the employer the fact of that belief; that the employer did believe it; 

(b)	secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief; and  

(c)	thirdly, that the employer, at the stage at which he formed the belief, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. 

6.	Bearing the forgoing points in mind, in this matter the tribunal’s focus must be, firstly, upon the quality of the investigation as conducted by the respondent.  The investigation in this matter consisted of obtaining two witness statements, from Paul O’Hagan and John McQuillan, and endeavouring to conduct an investigatory interview with the claimant.  However the claimant arrived for that investigatory meeting early and in a state of intoxication, so the tribunal is led to believe (that suggestion indeed was not challenged by the claimant).  Given the applicable circumstances, the tribunal’s determination in the application of the appropriate test is that the totality of the investigation on the part of the employer in this case falls within the band of reasonable responses of a reasonable employer.  Applying therefore the principles stated the British Home Stores v Burchell case, the tribunal notes the approach of Ronan McQuillan to the disciplinary hearing and the fact that the claimant was clearly afforded a fair and reasonable opportunity to provide an account for himself and to endeavour to meet the particular allegations, which allegations were properly and fairly presented to him.  The claimant had been provided with copies of the witness statements.  These statements were taken account of by the employer in the course of the disciplinary hearing and subsequent determination.  Having noted inconsistencies emerging from the claimant’s response to the various questions posed in the course of the disciplinary hearing, the employer then noted an express admission on the part of the claimant that he had indeed been drinking. Ronan McQuillan, in the tribunal’s view, had in his mind reasonable grounds upon which to sustain the belief as to the claimant’s conduct in this case.  Ronan McQuillan had, for this reason, reasonable grounds upon which to form the concluded belief that the claimant had been consuming alcohol in the course of the working day.  

7.	Given these findings on the part of Ronan McQuillan, it is important to set that in proper context.  The tribunal in the course of this hearing has heard extensive evidence from the respondent’s witnesses concerning health and safety issues attaching to the banksman’s function.  It has been clearly demonstrated to the tribunal that the effect of any degree of intoxication in the performance of these specific duties might well result in substantial risk of either death or serious personal injury, not to say risk of damage to property.  The tribunal was referred in the respondent's evidence to a number of recent and very unfortunate cases where there had indeed been fatalities in this jurisdiction.  The tribunal fully accepts that the banksman’s job was a responsible job where no alcohol consumption could possibly be tolerated by an employer.  Given this to be the case and given the finding on the employer’s part that the claimant had consumed alcohol in an interlude in the working day and the reasonable assumption that the claimant would inevitably have endeavoured to return to his post, the decision of Ronan McQuillan to treat this proven offence with the utmost seriousness and to determine the resultant dismissal, falls within the band of reasonable responses of a reasonable employer, in the tribunal’s determination.

8	When Paul Brogan proceeded to conduct the appeal, as he explained to the tribunal, he expressly discounted the evidence of the first witness, Paul O’Hagan, in that there could have been he felt an innocent explanation for the apparent observation that the claimant seemed to be drinking prior to his entry into the pub.  However, Paul Brogan found John McQuillan’s evidence to be compelling and the claimant’s explanation to be unconvincing.  He checked again John McQuillan’s evidence before reaching a final determination.  Accordingly, he upheld the dismissal decision.  In doing so, Paul Brogan’s determination is assessed by the tribunal as being within the band of reasonable responses of a reasonable employer.

9.	Looking at all of this, the tribunal accepts the respondent’s case that the claimant was dismissed for a permissibly fair reason, after due and proper investigation.  The decision to dismiss fell within the band of reasonable responses of a reasonable employer and there was a fair and proper appeal afforded.  Therefore the claimant was not unfairly dismissed.  The claimant's claim cannot thus succeed, and the claim is therefore dismissed by the tribunal, without further Order.  

Chairman:

Date and place of hearing:     23 November 2011 & 12 December 2011, Belfast.

Date decision recorded in register and issued to parties: