THE INDUSTRIAL TRIBUNALS

CASE REF:	511/08

CLAIMANT:			Jeffrey William Hodgen	

RESPONDENT:		Royal Mail Group Ltd	

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

Constitution of tribunal:
Chairman:		Ms Crooke	
Members:		Ms Cregan
			Ms Kennedy	

Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr David Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Sources of evidence

1.	The claimant gave evidence on his own behalf and Mr Martin Garry gave evidence on behalf of the respondent.  Additionally the tribunal had an agreed booklet of documents before it.

The claim and the defence

2.	The claimant claimed that he was unfairly dismissed by the respondent by reason of alleged misconduct.  The respondent denied that it unfairly dismissed the claimant but contended that the claimant was dismissed for misconduct and that this decision was not unfair.

The relevant law

3.	The relevant law is found in Article 126(1) and Article 130 of the Employment Rights (NI) Order 1996. 

4.	Article 126(1) states as follows:-

		“An employee has the right not to be unfairly dismissed by his employer.”

5.	Article 130 states as follows:-

	“(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 principle reason) for 			the dismissal, and

				(b)	that it is either a reason falling within paragraph (2) or 				some other substantial reason of a kind such as to justify 			the dismissal of an employee holding the position which 			the employee held.

(2)	A reason falls within this paragraph if it:-

(a)	relates to the capability of qualifications of the employee for performing work of a kind which he was employed by the employer to do, and

(b)	relates to the conduct of the employee. “

Facts found

(1)	The claimant was employed as a postman by the respondent.

(2)	The respondent has the obligation to make sure that all items entrusted to it are delivered promptly and securely.  If this does not happen, Royal Mail can be subjected to extremely severe fines. 

(3)	Therefore, Royal Mail requires its employees to sign a personal declaration regarding safeguarding the mail.

(4)	The declaration signed by the claimant was in the booklet of documents provided.

(5)	The respondent reinforces knowledge of its requirement to safeguard the mail periodically and the claimant on 4 October 2004 signed a receipt for a document outlining the consequences of failure to safeguard the mail, and underlining that this was a disciplinary offence.  On the second page of the document it was confirmed by Royal Mail that:-

		“it is important that you are aware of your responsibilities in this matter and the very serious consequences arising from an offence to any postal package in course of transmission by post.  These could involve dismissal and possible prosecution”.

(6)	On 26 September 2007, at approximately 2.00 pm, Mr Richard Jess, the claimant’s supervisor was approached at the delivery office in Dromore by a member of the public who indicated that there had been difficulties with the delivery of her mail and her neighbour’s mail.  She also indicated that a parcel had been left lying at a front door in the estate.  When he received this information, Mr Jess went out to Primrose Way and noticed that numbers 1, 6, 8, 12 and 16 all had letters hanging out of their letterboxes and that at number 12 there was a recorded delivery packet lying at the front door.  He reported this to his District Manager, Mr David Hamill.  He took a photograph of the package and letter at the address and left a form P739 at number 12 Primrose Way for the recorded delivery packet in accordance with proper Royal Mail procedure.

(7)	Having received a report of this incident from Mr Jess, Mr David Hamill instituted a fact-finding investigation.  On 12 October 2007 he sent a letter to the claimant inviting him to a fact-finding interview which took place on 18 October 2007.  This interview concerned the allegation that a Recorded Delivery Signed For Item had been left on the doorstep at 12 Primrose Way, Dromore.

(8)	On 14 November 2007, the claimant was advised that the matter had been passed to Mr Tom O’Kane.  By letter dated 4 December 2007 Mr Paul Corrigan informed the claimant that he was now dealing with his case and enclosed copies of the documentation that he would be referring to when considering his decision.

(9)	An appointment for the conduct interview was fixed on Friday 7 December 2007.  The right of accompaniment was indicated.  The claimant was also warned that in determining penalty, it might also be necessary for Mr Corrigan to take account of the fact that the claimant had a suspended dismissal penalty on his record valid until 13 June 2008.  He was warned that a possible outcome could be his dismissal.

(10)	The formal conduct interview was held on 13 December 2007 and the claimant was provided with notes of the interview which he signed and returned without indicating any changes. 

(11)	On 17 December 2007 Mr Corrigan interviewed Mr Jess one further time.  He put to Mr Jess that the claimant had denied leaving the packet on the doorstep and he was claiming that someone had set him up.  Mr Jess agreed that he could get access to the recorded delivery packet but so could any other postman in the mail office and reiterated that he had no grudge against the claimant and had not set him up.

(12)	By letter dated 19 December 2007 Mr Corrigan advised the claimant that there would be a delay owing to the Christmas period in reaching a decision on his conduct case.

(13)	By letter dated 20 December 2007 the claimant was advised to attend a meeting with Mr Corrigan on Thursday 3 January 2008 to receive the decision.

(14)	By letter dated 3 January 2008 Mr Corrigan advised the claimant that his decision was that the claimant would receive a “major offence” and as a consequence would be dismissed with notice of three weeks.  In the same letter he advised the claimant about his right to appeal the decision.

(15)	The appeal was heard by Mr Martin Garry on 13 February 2008.  The appeal took place by way of a re-hearing and the notes of that re-hearing were provided to the claimant who made two changes to them.  These were that he came into the duty 8 (which covered Primrose Way) around May-June 2007 and that there had been no previous complaints from any customers in his three years with Royal Mail.

(16)	As a result of the content of the appeal interview, Mr Garry conducted a further interview with Mr Hamill.  Mr Garry also re-interviewed Mr Richard Jess and interviewed Mr Paul Corrigan.  With other documentation, responses to the questions he asked of these three people were sent to the claimant under cover of a letter dated 7 March 2008.  Mr Garry considered the claimant’s further written representations.  

(17)	By letter dated 10 March 2008, Mr Garry sent out two further photographs taken by Mr Jess on 26 September 2007 which had not been previously disclosed to the claimant.

(18)	Mr Garry went out to Primrose Way and looked at the door of No 12 Primrose Way, matching it to the photograph in his possession and also tried to speak to the owners/occupiers of number 8 and number 12 Primrose Way without any success.

(19)	Mr Garry dismissed the claimant’s appeal.

Analysis of evidence

6.	In general, the tribunal found the evidence of Mr Garry to be of greater quality than the evidence given by the claimant.  The claimant alleged that what had happened to him had been a “set-up”.  However, he did not produce any objective evidence upon which the tribunal could conclude that this was really the case.  The claimant also placed emphasis on the fact that additional photographs taken on 26 September 2007 were only disclosed to him by Mr Garry under cover of his letter of 26 March 2008.  In this connection the tribunal accepts Mr Dunlop’s submission that these photographs were not relevant to the charge of leaving a packet on the doorstep.

Conclusions

7.	In any case concerning misconduct a tribunal will be guided by the dictum in British Home Stores  v  Burchell [1980] ICR 303 which sets out a three-stage process for the tribunal to address as follows:-

(1)	The tribunal must establish whether the respondent believed in the guilt of the claimant;

(2)	The tribunal must establish whether it was reasonable for the respondent to hold that belief; and

(3)	The tribunal must establish that this belief was reached after the carrying out of as much investigation into the incident as was reasonable in the circumstances.

8.	The tribunal considered that the respondent had a reasonable belief in the guilt of the claimant and that it was reached after as much investigation into the facts as was reasonable in the circumstances.  The claimant had a number of criticisms of the investigation and these were as follows:-

(1)	The photographs.  

The claimant contended that the photograph showing the packet on the doorstep did not in fact identify the house as being number 12 Primrose Way.  He contended that it could be any house in the United Kingdom.  In this connection the tribunal preferred the evidence of Mr Garry which was that he had visited number 12 Primrose Way and had matched the door to the picture that he held in his possession.  By contrast, the claimant had not done so and despite the fact that it was his own delivery district, did not know whether the door of number 12 Primrose Way was blue (as it appeared in the picture).  There was certainly a delay in providing the other pictures to the claimant, but the tribunal was satisfied that no prejudice was caused to the claimant, as the two pictures that he only received on or around 26 March 2008 related to doors through which mail had not been pushed and as such were not relevant to his charge which was leaving a package on the doorstep of a property.  The claimant also considered that Royal Mail should have interviewed the householders in Primrose Way as a whole and that would have sorted the problem out without need to attend a tribunal hearing.  However the claimant did not provide any objective evidence that suggested that this would have been of any assistance to Royal Mail and why this step should have been taken.  The respondent had in its possession a photograph taken by Mr Jess who personally witnessed the packet lying on the doorstep.  As such, the tribunal does not see that further investigation with the householders would have disclosed anything to change this situation.  

(2)	The claimant claimed that it was a “set-up” and inferred that Mr Jess was in some way implicated in this, as Mr Jess’ sister did not speak to the claimant and he found it odd that Mr Jess did not come and interview him personally about the fact of the parcel being left on the doorstep.  However, the claimant did not go so far as to state that Mr Jess was telling untruths and did not provide any objective evidence that Mr Jess had any reason to hold a grudge against him other than the somewhat spurious allegation against Mr Jess’ sister.

(3)	Furthermore, the claimant contended that no complaint had been received from any member of the public about him.  He also complained that there were no details available about the member of the public who originated the complaint to Mr Jess which he then investigated and no real attempt made to find her.  The tribunal accepts that while Mr Garry did make an attempt without success to find this lady when he went out to Primrose Way, this was not relevant because the respondent was in possession of the evidence of Mr Jess which the claimant did not really challenge in any meaningful way.

(4)	The claimant tried to argue that the previous complaints noted in the booklet of documents did not relate to him as they were logged as being on route 11 when the claimant worked only on routes 8 and 9.  The tribunal finds it unusual that there was this alleged unaccounted for change in the route classification but has discounted this in its reasoning in coming to the decision that the claimant’s offence received a reasonable investigation. The previous complaints were not really relevant.  This is because at the time of termination of employment, the claimant was the subject of a suspended dismissal disciplinary penalty in respect of a previous offence.  The claimant tried to argue that this was not relevant as it was not for the same offence.  The tribunal does not accept this.  It was plainly set out in the letter dated 14 June 2007 that “any further serious breaches of conduct code during this period (of one year – tribunal’s insertion) could result in your dismissal”.  The claimant chose not to appeal this decision.

(5)	The tribunal noted that the claimant never accepted that he was in fact on duty on the day in question although he did accept that Primrose Way fell within one of his walks.  While the tribunal noticed, that the claimant had a practice of not signing in for his duty, nonetheless, there was no proof of the claimant being absent from duty on either sick leave or by reason of holidays.  For that reason we discount this contention of the claimant.

9.	For all of the above reasons, the tribunal does not find that the objections to the investigation raised by the claimant have the effect of changing it to it not being as much of an investigation as was reasonable in the circumstances.  Bearing in mind the existing disciplinary penalty of suspended dismissal, the tribunal finds that the response of the employer to the claimant’s offence fell within the band of reasonable responses made by a reasonable employer in the circumstances which presented to it, and the claimant’s claim fails.

Chairman:

Date and place of hearing:	2 October 2008, Belfast

Date decision recorded in register and issued to parties: