THE INDUSTRIAL TRIBUNALS  

CASE REF:    1605/11

CLAIMANT:	Noel Hamill

RESPONDENT:	James E McCabe Limited

DECISION

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

Constitution of Tribunal:

Chairman:	Ms M Sheehan

Members:	Mr P Archer
	Mr J McAuley

Appearances:

The claimant represented himself and appeared in person at hearing.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed on behalf of the respondent, by A & L Goodbody Solicitors.

The Issues

1.	To determine the question whether the claimant was unfairly dismissed by the respondent in or around 13 April 2011 contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (hereafter referred to as the ERO).

2.	At the outset of the hearing the claimant complained that persons who worked for the respondent and whom he had wished to question were not in attendance at this hearing.  After some questioning from the tribunal it became clear that the claimant had wished to question the other employee who was subjected to disciplinary action arising from the same events that had led to the claimant’s dismissal.  The claimant wished as well to question John Reynolds his line manager.  The limitations of the powers of the tribunal to compel witnesses and the rules pertaining to examination of witnesses called by a party to the hearing were explained to the claimant. In response the claimant indicated he did not wish to call either of these persons on his behalf but had wished to cross examine them.  The respondent indicated it was not their intention to call these witnesses.  All parties agreed the matter should not be adjourned but proceed to hearing without these witnesses.

The Facts

3.	The tribunal heard evidence from Mr Michael Stacey, Mr William Mark Mateer, and the claimant.  The tribunal was referred to a bundle of documents identified at hearing as R1 (the agreed bundle of documents consisting of 128 pages).  The tribunal received oral submission from the representative for the respondent.  On the basis of the evidence, we make the following findings of fact in relation to the alleged unfair dismissal.

4.	The claimant was employed by James E McCabe Ltd on 4 December 2006 as a HGV driver.  His main duties were to deliver the respondent’s stock to its customers and to collect empty bottles.  He carried out that role from 2006 until his suspension from work on 9 March 2011. 

5.	The business of the respondent was the wholesale distribution of beer, wines and spirits and the claimant in his role made deliveries to retail premises, pubs and off licences.  The respondent company is one of a number of related companies under the umbrella group known as Golf Holdings Limited.  Other companies in the group are Wine Inns Limited and Property Management Services Limited trading as Russells Shop 4 U.

6.	The respondent had policy documentation relevant to duties and obligations imposed on employees.  It was not in dispute between the parties that there was a clear instruction given to all staff with driving obligations, including the claimant, that any incident whilst driving a company vehicle whether or not personal injury or vehicle damage occurs was required to be reported promptly to management.

7.	On 18 February 2011 a report was made to the respondent company from a customer known as the Oaks Bar Saintfield that one of its lorries had caused damage to part of its premises on 17 February 2011 and driven away without reporting the damage. Enquiries established that the claimant was driving the relevant vehicle with a Mr Wolsey as his helper.  It was not disputed by the claimant that he was contacted that same day by Mr John Reynolds who questioned whether the claimant knew anything about damaged fencing at the Oak Bar.  It was accepted by the claimant he denied any recollection of his vehicle “hitting anything” and claimed to be unaware of any problems at that delivery.  Mr Wolsey was also contacted by Mr Reynolds and also claimed he didn’t “remember anything getting hit”. 

8.	The respondent company initiated an investigation on 24 February 2011.  Charlie Stevenson, general manager of the respondent company, conducted the investigation.  There was CCTV to the reported incident.  It took the respondent nearly two weeks to obtain a copy of the CCTV footage in a viable format to enable viewing on their system.  Mr Stevenson did not interview the claimant or Mr Wolsey until he had viewed the CCTV footage from the customer’s premises.  On 9 March 2011 both the claimant and Mr Wolsey were interviewed as part of the investigation into the customer’s complaint.  Both the claimant and Mr Wolsey were shown the CCTV footage as part of the  investigative procedure.  While Mr Wolsey conceded, having been shown the footage, that the matter should have been reported to the customer, the claimant continued to maintain that he was unaware he had caused any damage – despite the CCTV footage showing his lorry right beside the damaged premises and him pushing tiles back on to the roof of a hut.

9.	The claimant was suspended with pay from his employment by letter dated 9 March 2011 pending an investigation into a deliberate breach of company rules and regulations.  However it did not appear to the tribunal that any further investigation was carried out. All the material gathered pre 9 March 2011 by Mr Stevenson was furnished to Mr Stacey – a manager in a related company – to conduct the disciplinary hearing. The specific rules breached by the claimant were identified in the letter dated 21 March 2011 sent to the claimant notifying him of the disciplinary hearing for alleged gross misconduct.  Two of the identified rules allegedly breached fell into the category of gross misconduct. The letter detailed all relevant documentation generated in the course of the investigation which was sent to the claimant with the notification letter.

10.	The respondent had a written Disciplinary Policy which set out the company’s approach to standards of conduct and performance expected of all employees.  The formal procedure applied to “more serious problems after an investigation of the facts”.  Employees “will be advised in writing of your alleged conduct” which leads to the company invoking the Disciplinary Procedures.  The employee could be accompanied by a shop steward or colleague, at any hearing before any form of disciplinary action is taken.  Examples are given in the policy document of “serious offences” which could lead the company to issue a final written warning and states that where the company believes the employee guilty of gross misconduct “it may consider dismissal as a disciplinary action”.  There were three recognised types of misconduct – minor, major and gross – and they are stated not to be an exhaustive list.  Minor misconduct included “failure to report any incident whilst driving a company vehicle, whether or not personal injury or vehicle damage occurs”.  Major misconduct included “failure to carry out reasonable instructions or follow Company rules and procedures” and gross misconduct included “Deliberate breach of Company rules and regulations and serious negligence, or failure to report any incident, which causes or might cause unacceptable loss, damage or injury to the business and its reputation”.  Further the policy undertakes to furnish a “Statement of Grounds for Action and Invitation to a Hearing”.  The letter issued to the claimant inviting him to the disciplinary hearing referred not only to the disciplinary rules alleged to have been broken but included a number of statements as well as copy records which established the claimant was the relevant driver. 

11.	Mr Michael Stacey conducted the disciplinary hearing on a number of different dates due to the claimant indicating he wished to be accompanied by a work colleague but failing to have a colleague in attendance on any of the rearranged dates.  Mr Stacey was a commercial manager for Russells Shop 4 U – which sits within a group of related companies which includes the respondent company.  He has been in retail management for 20 years and his latest training in disciplinary procedures occurred in 2008.  Eventually a full disciplinary hearing was conducted on 4 April 2011.  During the hearing the claimant conceded that he “was not denying causing the damage when I seen the CCTV” but still denied that he was aware at the time that he had caused any damage.  The claimant acknowledged that he was aware of the need to report any damage to the customer and the company as soon as possible.  The CCTV footage showed a narrow gateway with a lorry reversing into the driveway beyond the gate.  The hut at the side of the driveway and beside the gateway is seen to be hit by the lorry as it reverses.  The driver is seen to exit the lorry walk round to the side of the lorry which had connected with the hut and replace tiles on the roof of the hut – while a male approaches from the rear of the driveway, lifts an item and places to the side of the hut.  Then the driver returns to the lorry and moves the vehicle forward. 

12.	Near the end of the disciplinary hearing the claimant requested an adjournment as he wanted time to reflect on some of the questions put to him.  Mr Stacey permitted the adjournment but advised the claimant he had 24 hours to submit any information he wanted taken into account.  The claimant submitted a letter alleging that he had serious health problems in the “past few years” and was not physically or emotionally capable of dealing with all aspects of his day to day life.  He alleged he was the subject of harassment from Mr Reynolds.  Mr Stacey considered the matters raised in the claimant’s letter were potentially matters of grievance and therefore passed the letter on to the Human Resources department.  While this witness was able to identify the papers he had in connection with the investigation, he was unable to recollect what papers, if any, were provided from personnel records prior to making his decision to dismiss.  Mr Stacey notified the claimant by letter dated 13 April 2011 of his decision that the claimant had been guilty of gross misconduct.  The letter was six pages in length and set out in detail both the incident, the matters ascertained during investigation and details of information tendered by the claimant during the disciplinary hearing.  The letter also set out the rationale for Mr Stacey’s conclusions on the alleged rules breached.  The matter that led to the claimant’s dismissal was the undermining of the company’s relationship with the customer and the misrepresentation of events at the premises by the claimant to Mr Reynolds when enquiry was first made with him.

13.	Mr Stacey also conducted the disciplinary hearing in respect of Mr Wolsey which led to that employee receiving a final written warning.  Mr Stacey justified the difference in outcome due to the difference in approach adopted by both employees when their first version of events was challenged by the CCTV footage as well as the difference in responsibility for reporting damage.  The responsibility clearly fell upon the claimant as the person who was driving when the damage was caused.  It was that failure that potentially damaged the company’s relationship with the customer.  Mr Stacey viewed the failing to report the damage to the customer as having “severe potential for damage to the company’s reputation”. 

14.	Mr Stacey did not access the claimant’s personnel file before making his decision to dismiss.  He did not give any cognisance to the claimant’s previous disciplinary record in reaching his conclusion about the appropriate penalty.  Mr Stacey displayed and admitted a lack of knowledge regarding the Labour Relations Agency Code of Practice on Grievance and Disciplinary Procedures, hereinafter referred to as the LRA Code.  This was not his first involvement in a disciplinary hearing which concluded dismissal of an employee was the sanction to be imposed.  Mr Stacey concluded dismissal was warranted given the potential seriousness of damage to the company’s reputation with the client and a lack of belief in the claimant’s integrity and honesty reflected in the manner in which the claimant dealt with the evidence against him.

15.	During the period March to April 2011, the respondent company had also become aware that the claimant may have been prosecuted for certain criminal offences which could have relevance to his employment as a driver.  By letter dated 2 March 2011 solicitors instructed on behalf of the respondent company made enquiry with the Public Prosecution Service for details of those matters of public record such as the date and details of offences and sentence imposed if any.  A letter dated 9 March 2011 was received by the company’s solicitors on 14 March 2011 which indicated the claimant had been prosecuted for offences of supply and possession of cocaine and received a sentence of two years and six months imprisonment suspended for three years.  By letter dated 9 April 2011 Mr Stevenson advised the claimant that he was referring that matter to a disciplinary panel for consideration.  However once advised of the outcome of the disciplinary action taken on 13 April 2011 in respect of the February 2011 incident at the Oak Bar, Mr Stevenson wrote to the claimant to advise no disciplinary action would now be taken but the matter would be retained on his personnel file.

16.	The claimant exercised his right of appeal by letter received on 18 April 2011.  In his letter of appeal he stated that “I wish to appeal your decision to terminate my employment on the ground that as I feel the campaign of harassment was part of the disciplinary issues that you can not come to a decision without all the relevant facts”.  The company wrote on receipt of that letter that any evidence he had which connects the disciplinary action to the alleged grievance matters – namely the alleged campaign of harassment – should have been raised at the disciplinary hearing and should be collated and provided in writing to the manager due to hear the appeal a Mr Mark Mateer.  The claimant in response wrote to the company a letter which was received on 4 May 2011.  In the letter the claimant raised bias on the part of a Miss Peters as evidenced by comments she allegedly made to Mr Wolsey and a refusal on the part of Mr Stacey to supply evidence that the claimant requested.  The evidence was not specified in the letter.  The other matters outlined in the letter predated the February 2011 incident; the subject matter of the disciplinary procedure.

17.	The appeal was heard on 6 May 2011 by Mr Mark Mateer, a general manager with Wine Inns Limited for five years.  Mr Mateer had received training in disciplinary appeals, his most recent training occurring in 2008 when he attended the same course as Mr Stacey.  He had the full investigation notes, documents and the company handbook.  He did not have the claimant’s personnel file in front of him at the appeal hearing.  The accuracy of the notes of the appeal hearing was not disputed at this hearing. 

18.	Mr Mateer concluded from the letter of appeal submitted by the claimant that many of the matters raised were irrelevant to the appeal hearing other than the alleged comments attributed to Miss Peters.  He noted the claimant contended he had knowledge of these comments prior to the disciplinary hearing but the comments were not mentioned at the disciplinary hearing to Mr Stacey.  The persons identified during the appeal hearing as party to the campaign of harassment did not include Mr Stacey.  The claimant left the appeal hearing before it was completed.  Mr Mateer made follow up enquiries with Miss Peters and Mr Wolsey about the alleged comments reported by the claimant.  Both denied any such conversation had taken place or been reported to the claimant.  Mr Mateer concluded there was no evidence to support the allegation made in respect of a prejudged outcome to the disciplinary hearing conducted by Mr Stacey.  He upheld the decision to dismiss.  With regard to any alleged disparity of treatment between employees Mr Stacey did consider a distinction could be made between the claimant and Mr Wolsey. The claimant was the person the customer was specifically annoyed with for failing to report the damage.  He concluded the claimant’s role was a more serious breach of the company’s procedures compared to Mr Wolsey.  This witness confirmed he could have had access to HR personnel but did not recollect if contact was made with Human Resources to ascertain the claimant’s length of service or any information regarding his alleged illness and date of return to work from that illness.  This witness was aware from his own knowledge of the claimant, both of the nature of the illness and the fact the claimant returned to work in January 2010, a full year before the alleged disciplinary incident.

19.	The claimant gave evidence at the tribunal hearing that he “wasn’t 100% sure that he caused the damage”.  He accepted he knew he was supposed to tell a person whose property was damaged before leaving the premises.  The claimant contended he had been off work due to illness from July 2009 until January 2010.  He was examined by Occupational Health in November 2009 before he returned to work.  He claimed he was on five different medications which led to him forgetting things.  He accepted his doctor had signed him fit for work – and that was based on information he provided to the doctor.  He claimed that with the medication he was on he shouldn’t have been working.  The claimant accepted at no time prior to this tribunal hearing did he raise the issue with those dealing with the disciplinary matters of being unfit to attend work.  Since his dismissal he had not sought alternative employment as he had become the main carer for his mother.  

Relevant law

20.	The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

21.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

		“130-	(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 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 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 administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

				(b)	shall be determined in accordance with equity and the substantial merits of the case.”

22.	The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

			“(49)	The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined principally in the judgements of Mummery LJ in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.

			(50)	In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

					“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

					(1)	the starting point should always be the words of [equivalent GB legislation] 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 an 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.”

			(51)	To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

					“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, it must be established by the employer the fact of that belief, that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

23.	In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  The employment tribunal had determined that a sexually suggestive remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal.  Lord Justice Longmore stated at Paragraph 18 of the decision that:-

		“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

	He continued at Paragraph 19:-

		“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET.  It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

24.	In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal was again considering a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer.  Lord Justice Mummery stated at Paragraph 7 of the decision that:-

		“In brief the counsel’s case on appeal that the ET erred in law.  It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’.  That favourite form of words is not statutory or mandatory.  Its appearance in most ET judgment in unfair dismissal is a reassurance of objectivity.”

	At Paragraph 38 of the decision, he continued:-

		“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair.  If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

Decision – unfair dismissal

25.	The tribunal received a submission only from the respondent’s legal representative which was oral in nature.  The respondent’s approach can be summarised as: the respondent had adhered to its disciplinary procedure and followed the standards set down in the Burchell and Hitt cases.  The claimant’s conduct should lead to a 100% contributory finding – as set out in Davis v Atkins - should the tribunal not be satisfied that the dismissal was fair and were considering the issue of quantum. Further the tribunal should take cognisance of the issue of the drug convictions which would have led to dismissal of the claimant in any event had he not been dismissed for the Oak Bar incident.

26.	The tribunal has to be careful not to substitute its own view for that of the employer.  The tribunal took into account all the steps taken by Mr Stevenson in the course of his investigation as set out at paragraph 8 above and concluded that his investigation was thorough. While no documentary evidence was produced at hearing of the training provided to the respondent’s witnesses, as their claims of training were not challenged by the claimant, the tribunal accepted the details furnished in evidence.

27.	Mr Stacey when making the decision to dismiss had before him various witness statements and interview notes that were collected during Mr Stevenson’s investigation.  On the basis of those statements and notes and the CCTV recording Mr Stacey had reasonable grounds to conclude that the claimant had failed to report accurately events at the Oak Bar on 17 February 2011.  The tribunal having been shown the CCTV at hearing found the claimant’s claim to be unaware that damage had been caused when reversing into the driveway somewhat lacking in credibility.

28.	The tribunal is satisfied that the respondent conducted a reasonable investigation, judged against the objective standards advocated in Sainsburys Supermarket Ltd v Hitt and that the respondent held a genuine belief as to the guilt of the claimant in respect of the disciplinary charge.  It is clear the claimant knew what he was accused of given the detailed letter of notification and invitation to the disciplinary hearing.  He was given an opportunity to state his case as Mr Stacey adjourned proceedings on more than one occasion to facilitate the claimant.  Accordingly the employee had been informed of the nature of the case against him –see Hussain v Elonex plc [1999] IRLR 420.

29.	Mr Stacey’s and Mr Mateer’s training in disciplinary procedures require updating as they were clearly ignorant of the requirement as decision makers to acquaint themselves with the employee’s personnel record before determining the appropriate penalty.  Further they appeared to have limited knowledge of the LRA Code. It is well known that a failure to follow any part of that Code can be taken into consideration by a tribunal in reaching its conclusions on the fairness of a dismissal.  However a failure to follow any part of the LRA Code does not, in itself, make a person or organisation liable to proceedings.  The breach is just one of the factors to be taken into consideration by the tribunal.  At the same time the tribunal were impressed with the detail that Mr Stacey set out his rationale for his findings on the matters he considered as part of his role in conducting the disciplinary hearing.  The tribunal did not consider there was any failure of natural justice due to the failure of the respondent to consult the personnel file of the claimant before concluding on the appropriate sanction.  The tribunal concluded that the decision to dismiss was solely the decision of Mr Stacey and that Miss Peters played no role in that decision.  The conduct of the appeal hearing is also vulnerable to slight criticism given Mr Mateer also failed to utilise personnel files to consider matters such as length of service as well as consistency of treatment of employees.  However he did make suitable and appropriate enquiry of those additional matters raised by the claimant  that had potential to impact on the fairness of the initial disciplinary decision.  

30.	The claimant made no contention that the dismissal was unfair as he did not know he could be dismissed for failing to report to the owner of premises damage to those premises.  While the claimant claimed at hearing his medication made him forgetful no evidence to support that contention was produced to the tribunal and more importantly no such contention appeared to have been made either at the disciplinary hearing or the appeal hearing.  In the absence of such evidence being presented or a similar contention being made at the relevant time in the disciplinary process, it is impossible for the tribunal to give these allegations credence.  The decision of the respondent to dismiss can only be viewed in the light of the evidence it had in its possession at the relevant time in April 2011.  The tribunal could not be satisfied on a balance of probabilities that the claimant’s medication played any part in his failure to report the incident at the Oak Bar to his employer.

31.	On the issue whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating the failure to report damage to the owner of the premises and to incorrectly represent events to his manager when enquiry was made the next day as a sufficient reason for dismissing the employee taking into account the equity and substantial merits of the case, the tribunal took careful note of the documentation available to it, in particular those documents relating to the investigation of the initial complaint and the claimant’s response to enquiry from his management as to whether he was  “aware of any problems at the outlet” – namely “as far as I know everything was ok”.  It appeared clear to this tribunal that the claimant could and should have at that time mentioned that he noticed some damage to a hut but he did not know when or how that damage was caused.  The claimant knew very well the reporting of damage to customer’s premises was essential – and had potential to damage relationships with a customer.

32.	The issue of inconsistency of treatment was raised by the claimant with Mr Mateer who conducted the appeal hearing.  However having heard the evidence in its totality the tribunal accepted that Mr Mateer established a rationale for distinguishing the penalty imposed on Mr Wolsey as opposed to that applied to the claimant.  It could not be said that the rationale for that distinction was irrational or unreasonable.  This respondent complied with the minimum requirements of the three stages of the statutory dismissal procedure.  The claimant was offered an appeal process and while the appeal process was conducted in a slightly imperfect manner by Mr Mateer there was no incorrect classification of the conduct under the disciplinary procedure.  It appeared clear to this tribunal that this respondent took their duties to their customers seriously – reflected in the many references in the company documentation to disciplinary penalties for failure to adhere to company standards or display unsatisfactory behaviour to customers.  The tribunal noted that according to the respondent’s policy “where serious misconduct occurs the Manager may dismiss you”.  Dismissal could be with or without notice.  The tribunal found nothing to suggest that the respondent’s penalty was “perverse or irrational”.  The tribunal considered the claimant’s case, when distilled down from the evidence, was that a final written warning instead of the penalty of summary dismissal would have been “fair” as that was the penalty imposed on Mr Wolsey.  It appeared to this tribunal there was little or no evidence placed before the tribunal that supported a conclusion, on a balance of probabilities, that the sanction of summary dismissal did not fall within the band of reasonable responses open to a reasonable employer in the circumstances which pertained to the claimant’s behaviour regarding the events at the Oak Bar in February 2011and the subsequent enquiry initiated on foot of a complaint by a customer.  The tribunal was satisfied that the dismissal was a fair dismissal in all the circumstances of this case.  

33.	Accordingly the claimant’s claim is dismissed.

Chairman:

Date and place of hearing:       15 November 2011, Belfast.

Date decision recorded in register and issued to parties: