THE INDUSTRIAL TRIBUNALS 

CASE REF:	1189/03

	

APPLICANT:	James Rea	

RESPONDENT:	Sheridan Millennium Limited		 

DECISION 

The unanimous decision of the tribunal is that the respondent did not unfairly dismiss the applicant and accordingly his complaint is dismissed. 

Appearances:
The applicant was represented by Mr M Cunningham of the Transport and General Workers Union. 
The respondent was represented by Mr Ridgeway, Barrister-at-Law, instructed by Employment Law Advisory Services.  

Extended Reasons.

1.	These reasons are given in extended form as the tribunal considers that reasons given in summary form would not sufficiently explain the grounds for its decision.

2.	This is a complaint by Mr Rea that he was dismissed without notice from his employment as a promotions officer with the respondent on 9 January 2003.  The respondent conceded that the applicant was dismissed summarily for gross misconduct and contended that the dismissal was fair in all the circumstances.

3.	The parties agreed that the outset that in this case the dismissal was for a reason, relating to conduct, within Article 130(2)(b) of the Employment Rights (Northern Ireland) Order 1996.  The issue for the tribunal was whether the dismissal was fair, in particular, whether in the circumstances the respondent acted reasonably or unreasonably in treating the applicant’s conduct on 20 December 2002 as a sufficient reason for dismissing the applicant.  This must be determined in accordance with equity and the substantial merits of the case.

4.	The tribunal heard evidence from Joanne Flynn, Catherine Williamson, Carmel McCann and Peter Holmes on behalf of the respondent and from the applicant.  The tribunal considered the oral evidence and the documentary evidence presented to the tribunal and found the following facts:

5.	The respondent company employed approximately three hundred staff including full-time and part-time in December 2002.  The respondent had provided staff with a written statement of terms and conditions as well as a written disciplinary and grievance procedures.  The company did not appear to instruct managers to adhere to the written disciplinary procedure but expected them to refer disciplinary matters to the Human Resources department, namely Joanne Flynn.

6.	The respondent employed the applicant as a promotions officer from late summer of 2002.  This was the applicant’s third promotion within the respondent company since his employment commenced on 19 November 2001.  The applicant knew that he was contractually obliged to seek a manager’s permission to go to restaurants in the Odyssey complex.  There was no evidence that the applicant knew of the amended policy, contained in the staff handbook produced to the tribunal, that such permission was required to access all of the units in the Odyssey.

7.	The applicant handed the respondent’s director Mr Peter Holmes a letter initiating the company’s grievance procedure on 23 December 2002.  Joanne Flynn (Human Resources) commenced an investigation of the grievance upon her return to work from Christmas leave in January 2003.

8.	The grievance concerned the applicant’s treatment by employees of the respondent company on the night of 20 December 2002.  On that night the applicant had taken issue with the instruction of a senior member of management, had used foul and rude language about the member of management to other staff and had displayed his anger and discontent to the manager, where members of the public were present.

9.	At the time Joanne Flynn commenced the investigation she was aware that Mary Rose Gilroy, the Operations Director was unhappy at the applicant’s conduct on 20 December and wanted him disciplined.  Joanne Flynn had postponed any decision on the disciplinary situation until the grievance lodged by the applicant had been investigated and determined.

10.	The company’s disciplinary procedure stated that “occasionally we need to take action when an individual’s behaviour or performance is unacceptable or contrary to their responsibilities”.  It does not identify who may initiate the procedure.  It does specify the person responsible for conducting a disciplinary hearing and or appeal.

11.	Gross misconduct is defined as “any conduct which warrants summary dismissal”.  In cases of gross misconduct the company’s procedure states that a “full investigation will be made of the circumstances of any such offence … a hearing will take place where you will be entitled to be accompanied and where you will be given an opportunity to state your case before a decision to dismiss is made”.  Guidelines were provided as to the conduct falling within the categories of minor, major and gross misconduct.  However the document clearly states that the guidelines were not to be seen as exhaustive.

12.	The respondent did not investigate the grievance in accordance with their procedures as it was not possible for them to adhere to the procedure as no one in the company held the position of “Managing Director”, the post specified as the relevant person in stage three of the grievance procedure.

13.	Joanne Flynn carried out a fair and detailed investigation into the grievance save that no enquiry appeared to be made into the adequacy of the dissemination to staff of the policy on “off duty” access by staff to units in the Odyssey.  A written record was made and kept by Joanne Flynn of her examination and findings as to the events of 20 December 2002.  It was reasonable for Joanne Flynn to conclude, in particular in light of the statement prepared and furnished to her by Carmel McCann, that the applicant’s behaviour on 20 December 2002 warranted the initiation of disciplinary procedures.

14.	There was a discussion between Joanne Flynn and Peter Holmes prior to the initiation of the disciplinary procedures against the applicant.  The tribunal considered the various documents put before it during the hearing and the evidence of the witnesses.  While we took cognisance of the reference to “we” and “full discussions” in the correspondence, we also noted that the disciplinary charge as framed by Joanne Flynn was clearly not one that had been agreed with Peter Holmes.  Accordingly we concluded that the discussion between Joanne Flynn and Peter Holmes was not a predetermination of the issues or a decision to dismiss the applicant.

15.	Equally we considered the evidence of the witnesses in regard to the clearing out of the applicant’s desk on 10 January 2003.  The tribunal accepted that the desk clearance was related to staff movements.

16.	With regard to procedural matters the written notes and statements recorded during the investigation of the grievance procedure became the notes and statements for the disciplinary meeting held with the applicant.  The applicant knew the disciplinary charge against him and the information relied upon by the respondent.  The applicant and his representative had been furnished with copies of all the statements intended to be relied on by the respondent prior to the initial disciplinary hearing.  He was given an opportunity to explain himself.

17.	It was reasonable for the respondent to conclude given the seniority of the person involved in this altercation with the applicant on 20 December 2002 that the disciplinary hearing should be heard by someone above the relevant director in the management structure rather than by someone the director managed.

18.	The letter notifying the applicant of the disciplinary hearing indicated that the behaviour in question “could be gross misconduct”.  The tribunal accepted that Peter Holmes did amend the disciplinary charge at the outset of the disciplinary hearing.  While the notes of the disciplinary hearing, in particular, paragraph fourteen, display a less than satisfactory clarity as to the specific disciplinary charge faced by the applicant, the classification of the charge was however clear during the disciplinary hearing.

19.	The tribunal noted that at no stage in the statement of Mary Rose Gilroy is it recorded that she said that she “felt physically threatened”.  None of the witnesses were invited to read or sign the statements recorded from the notes of Joanne Flynn.  Accordingly the tribunal was not satisfied that Peter Holmes had carried out as much investigation as he could have done prior to amending the disciplinary charge and concluding that the applicant had been “physically threatening” to a senior member of the respondent company.

20.	The applicant was provided with a right of appeal.  The only persons available to hear an appeal were persons outside the company.  The person appointed to hear the appeal Catherine Williamson was appropriately qualified.

21.	Catherine Williamson spoke to Mary Rose Gilroy as part of her preparation and conduct of the appeal.  The appeal process was genuine, fair and thorough.  There was one deficiency in the appeal process in that Catherine Williamson failed to give an opportunity to the applicant to respond or comment on the clarification she obtained from her conversation with Mary Rose Gilroy.  However there was sufficient evidence for Catherine Williamson to conclude that the applicant’s conduct could be viewed as “physically threatening” and amounting to gross misconduct warranting summary dismissal.

22.	Both parties made oral submissions.  It was submitted on behalf of the applicant that the disciplinary decision in this case was prejudged and the respondent followed an unfair procedure.  The applicant did not know the case he was required to answer.  Verbal abuse was classified, as “minor misconduct” in the respondent’s procedure, the person who made the case that the applicant’s conduct was “gross misconduct” was Peter Holmes who was also the person deciding the outcome of the disciplinary hearing.  This was neither fair nor equitable.  The applicant started with one disciplinary charge, then there were two charges and at the appeal it ended with three disciplinary charges.  There was a breach of the Code of Practice issued by the Labour Relations Agency in that there was no disciplinary investigation in this case.  There was a total breach of natural justice in that Peter Holmes was involved in framing the case against the applicant, drawing up the charges and he not only picked the person to hear the appeal but was also the person who paid for that service.  On the issue of contributory fault it was submitted that if the applicant was guilty of verbal abuse the only sanction such conduct could fall within was a Final Written warning which was not even considered by the respondent.

23.	It was submitted on behalf of the respondent that the relevant case law was British Home Stores –v- Burchell (1980) ICR 303.  The relevant test was – whether there was a reasonable investigation, a reasonable belief and reasonable grounds for that belief.  The key issue for this tribunal was the procedure – whether the proper procedure was followed and did it comply with the rules of natural justice.  The applicant had an adequate opportunity to state his case.  The law says that the allegation should be specific.  It was submitted that the specific allegation was the verbal abuse by the applicant of a senior member of staff.  The threatening behaviour was part and parcel of the verbal abuse, the same course of events.  The respondent dealt with the situation in a way felt fair to all parties.  Any bias or unfairness was limited as the applicant had the benefit of trade union representation throughout the process.  The provision of the statements to the applicant prior to the first disciplinary hearing meant that the applicant knew the full case against him.  The respondent accepted that the procedure followed was not in direct compliance with their disciplinary procedure but this was because the respondent was trying to be fair to the employee due to the seniority of the person involved in this incident.  The tribunal should view with extreme caution the allegation that the respondent predetermined to dismiss the applicant.  The decision to dismiss, based on the available evidence, fell within the band of reasonable responses.  The applicant used his opportunity to appeal.  Again the disciplinary procedure of the respondent was deviated from as the person who would normally hear the appeal had already conducted the disciplinary hearing.  Catherine Williamson looked afresh at the situation, she reviewed the evidence, clarified points including the applicant’s pay which suggests she gave the matter due consideration.  Her Consultancy links with the company does not impinge on her independence.  The respondent’s case is that “unacceptable use of foul language is “major misconduct” within the disciplinary procedure.  However the list is not exhaustive and the fact that the language was used in public and to a senior Director reasonably takes it to “gross misconduct”.  The overall procedure used by the respondent was fair.  In the alternative the respondent submits that the trust and confidence between employer and employee, as a result of this conduct by the applicant, was so broken as to make the dismissal fair for “some other substantial reason”.  Should the tribunal find that the dismissal was unfair the respondent suggest that there was a very high degree of contributory fault, perhaps as high as one hundred per cent.  While the applicant accepts that he was “angry and animated”, the respondent says that he was “aggressive” and the tribunals should make a substantial reduction for contributory fault.

24.	The tribunal has had regard to the provisions of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 in determining whether the respondent acted reasonably in treating that conduct as sufficient reason for dismissal.

25.	 British Home Stores –v- Burchell (1980) ICR 303 has established a three fold test that must be satisfied if dismissal of the applicant, by the respondent, for a reason relating to conduct is to be fair.  The respondent must show that he had a genuine belief on reasonable grounds after reasonable investigation that the applicant’s behaviour justifies dismissal.

26.	Paragraph 7 of the Code of Practice on Disciplinary and Grievance Procedures provides that employees should be given a clear indication of the type of conduct, which may warrant summary dismissal.  In this instance, the applicant had taken issue with the instruction of a senior member of management, had used foul and rude language abut the member of management to other staff and had displayed his anger and discontent to the manager, where members of the public were present.  The tribunal considered that as subordination was noted as major misconduct in the respondent’s procedures; it could not have been a great surprise to the applicant that his conduct on 20 December 2002 was viewed by the respondent as “gross misconduct”.

27.	Even where misconduct is admitted by an employee the requirement of reasonableness in Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 relates not only to the outcome in terms of the penalty imposed by the employer but also to the process by which the employer arrived at that decision.  Accordingly this tribunal had to ask itself whether dismissal fell within the “band of reasonable responses” having applied that test to the circumstances of this case and the procedure used by the respondent in reaching the decision to dismiss – Sainsbury’s Supermarkets Ltd –v- Hitt (2003) IRLR 23 CA.

28.	In carrying out a reasonable investigation, the respondent is required to investigate the complaint of misconduct fully and fairly.  While it would be preferable if all disciplinary hearings followed an investigatory hearing, the respondent complied with the general thrust of the principles laid down in Clark –v- Civil Aviation Authority [1991] IRLR 412.

29.	Paragraph 9 of the Code of Practice on Disciplinary and Grievance Procedures issued by the Labour Relations Agency advises when applying disciplinary procedures employers should have regard to the requirements of natural justice.  In this case the respondent did display compliance with the rules of natural justice – see Khanum –v- Mid Glamorgan Area Health Authority [1978] IRLR 215 EAT.  The applicant knew the nature of the accusation against him, was given an opportunity to state his case directly to those considering disciplinary action before decisions were reached and the tribunal was satisfied on the balance of probabilities that the employer acted in good faith.

30.	Paragraph 18 of the Code of Practice on Disciplinary and Grievance Procedures advises that it may be appropriate to suspend a disciplinary procedure for a short period where a grievance is raised in the course of a disciplinary case, until the grievance can be considered.  In this case the grievance was initiated first and the tribunal considered that the actions of the respondent were reasonable in postponing any decision on disciplinary action until the grievance had been investigated.

31.	The tribunal considered the actions of the respondent and in particular the discussion between Peter Holmes and Joanne Flynn prior to the initiation of disciplinary action against the applicant.  The tribunal recognises the general principle that an inquiry must be seen to be impartial.  The tribunal noted the authority of Slater –v- Leicestershire Health Authority 1989 IRLR 16 CA which held that merely because a person conducting a disciplinary hearing has carried out a preliminary investigation does not mean that that person is unable to conduct a fair hearing or inquiry into events.  The tribunal was satisfied that the involvement of Peter Holmes in a discussion with Joanne Flynn as to the appropriateness of initiating disciplinary action against the applicant did not prevent him conducting the disciplinary hearing, although, in the opinion of the tribunal it would have been preferable that no such discussion had taken place.  However the applicant had been given notice of the matters to be dealt with at the disciplinary hearing, the right to representation at the disciplinary hearing and details of all information being taken under consideration at the disciplinary hearing.

32.	The tribunal concluded that the timing of the staff movements on 10 January 2003 was unfortunate.  The tribunal could understand the applicant’s belief that the decision to dismiss him had been predetermined against that background.  However having considered the evidence of all the witnesses the tribunal found it impossible to be satisfied, on the balance of probabilities, that the decision to dismiss the applicant was in fact premeditated.

33.	The tribunal had to determine whether the respondent had established on a balance of probabilities that the reason for dismissal was of a kind such as to justify the dismissal of an employee holding the position that the applicant held.  A breach of the Code of Practice on Disciplinary and Grievance Procedure does not render a dismissal automatically unfair but is a matter to be taken into consideration by the tribunal.  While there was a procedural defect in the initial disciplinary hearing, the applicant was given an opportunity to appeal.  The tribunal noted the authority of Sartor –v- P & O European Ferries (Felixstowe) Ltd 1992 IRLR 271.  In this instance the action of Catherine Williamson, conducting the appeal by way of a rehearing, in particular, seeking clarification from Mary Rose Gilroy on the statement allegedly provided by her to Joanne Flynn, cured the deficiency that arose in the initial disciplinary hearing.  The respondent could not be said to have failed to apply any procedural safeguard as envisaged in Polkey –v- A E  Dayton Services Ltd [1997] IRLR 503 in the circumstances of this case.

34.	The tribunal concludes on a balance of probabilities that the respondent did act reasonably in all the circumstances in dismissing the applicant.  The dismissal of the applicant clearly fell within the band of reasonable responses available to the respondent in the circumstances of this complaint Post Office –v- Foley;  HSBC Bank Ltd –v- Madden [2000] IRLR 827.  Accordingly the applicant’s complaint is dismissed.

	
Chairman:

Date and place of hearing:	11, 12 January and 15 February 2005, Belfast. 	

Date decision recorded in register and issued to parties: