THE INDUSTRIAL TRIBUNALS

CASE REF:  671/06;
860/06

CLAIMANT:			Richard Wright

RESPONDENT:		Stevenson & Reid

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

Constitution of Tribunal:
Chairman:		Ms Elliott
Members:		Mrs Gregg
			Mr Burnside

Appearances:
The claimant was in attendance and represented himself.
The respondent was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by Mark Jackson of Thompsons, Solicitors.

REASONS

 1.	Sources of Evidence

	The tribunal heard evidence on behalf of the claimant from the claimant himself and Ms Cathy Heaney.  The tribunal heard evidence on behalf of the respondent from Mr Steven Beare, Mr David Kirk, Mr Stephen Pyper, Mr Walter Weir, Mr Sam McCammond and Mr William Stevenson.  

	The tribunal was provided with a bundle of agreed documents by the respondent and the claim form and response.  The respondent served a Notice for Additional Information and the claimant replied.

 2.	The Claim and the Defence

	The claimant claimed that he had been unfairly dismissed.  The respondent claimed that the claimant had been fairly dismissed for misconduct, after a proper investigation, disciplinary hearing, an appeal to his responsible Director and a further appeal to the Board of Directors carried out in accordance with the respondent’s own disciplinary procedure.

 3.	The Issue

	The issue to be determined by the tribunal is whether the claimant was unfairly dismissed by the respondent.  The respondent summarily dismissed the claimant for refusing a reasonable instruction to remain until the stocktake was completed which amounted to gross misconduct.  The terms and conditions of employment listed failure to carry out a reasonable instruction as an example of gross misconduct.  The issue for the tribunal was whether the respondent had acted reasonably in treating the claimant’s conduct as a sufficient reason for dismissal and whether dismissal for that reason was fair.

 4.	Findings of Fact

4.1	The respondent company is a Wholesale Plumbers Merchant and Bathroom Supplier.  The claimant was employed in the Bangor Branch as a delivery driver/storeman from 2 February 2004.

4.2	The tribunal heard evidence that the respondent company carried out a stocktake on the last working day of February and August each year.  The stocktake in February marked the end of the financial year and was therefore crucial to the respondent’s business.

The stocktake had to be completed in one day to ensure accuracy as required by the respondent’s bank and auditors.  The claimant’s terms and conditions of employment specified only one duty that is, “you are required to assist with stock taking twice per year”.

4.3	The Bangor branch was managed by Steven Beare.  David Kirk was employed as a storeperson/van driver.  The respondent’s sales representative Stephen Pyper was also required to assist with the stocktake which involved counting every item of stock.  The claimant had been involved in four stocktaking days prior to 28 February 2006.  The first of which was eight days after the claimant joined the respondent in 2004.  Mr Beare gave evidence that it was his practice to serve customers until 10.00am at which point the doors are closed and the stock is frozen, the staff are expected to assist and remain to the end.  The tribunal heard that there are two separate books, find items and transfer items found on the premises.  Mr Beare and Mr Kirk were responsible for counting sanitary ware whilst Mr Pyper and the claimant covered the items in the store.  Mr Beare stated that he had written out instructions for the claimant who had to count the fittings.

4.4	The stocktake proceeded and in or about 4.15pm the claimant received a call on his mobile phone and was heard to indicate that he should be finished at around 5.00pm.  As a result the claimant was advised in no uncertain terms that he would be expected to remain until the end of the stocktake.  Prior to 5.00pm the claimant brought in the van as usual and closed down the shutter.  The claimant indicated at 5.00pm that he was leaving at the usual finishing time.  Mr Beare told him “if you go out that door don’t worry about coming back”.  The claimant replied with a reference to court and left the premises.  The other staff continued with the stocktake until in or about 5.45pm.  The claimant attended at work as usual the next morning at 8.30am on 1 March 2006.  On arrival the claimant was advised that he was suspended on full pay and requested to attend a Disciplinary Hearing.

4.5	The claimant attended a Disciplinary Hearing on 1 March 2006 at 3.00pm.  The issues raised by the claimant on this date and at subsequent appeals were:

	(a)	The instruction from his Manager to remain after 5.00pm was neither timely nor reasonable.  The claimant maintained that he had not worked past 5.00pm on the four previous occasions when he assisted with the stocktake.  The claimant had been advised prior to Christmas and then three days before the event by a colleague.  The claimant complained that Mr Beare his Manager had not informed him.  Mr Beare advised the claimant when he started that annual leave could not be taken on the stocktake days which had not changed during his 17 years working for the respondent.  The tribunal heard evidence in respect of the preparation in advance when Mr Beare and Mr Kirk would tidy up to make things easier to find.  In addition items would be bagged and tagged over the previous three days to assist counting.  The stock would be kept low and the branch would be a hive of activity.  The claimant stated that he did not notice any activity and claimed the express term in his contract lacked detail and was “quite open to interpretation”.  The evidence from Mr Beare, Mr Kirk and Mr Pyper was that on average the stocktake finished at between 5.30pm and 6.00pm.  The tribunal concluded that the claimant was on notice of the stocktake and the fact that he might be required to remain after 5.00pm to assist until completion.  This was a reasonable work instruction in light of the surrounding circumstances and the express term in the terms and conditions of employment.

	(b)	The claimant complained that Mr Beare had spoken to him in a verbally abusive manner in issuing his instruction to remain until completion.  Mr Beare acknowledged that at 4.15pm he had used swear words which was not uncommon in the workplace and would have been used by the claimant on occasions.  Mr Beare gave evidence that he was angry that the claimant was planning to walk off and leave his colleagues to complete the task.  Mr Beare did not accept that he had used abusive language at 5.00pm when the claimant left the premises.

		The tribunal heard evidence that the stocktake was stressful.  The phone call at 4.15pm was during the transfer procedure which was the most important and busy time of the process when it was important not to make mistakes and all four members of staff were focused on the task.  The claimant in contrast indicated that he never noticed any pressure as there was a relaxed kind of atmosphere in the absence of customers.  The claimant gave evidence that he found it quite therapeutic, it was something different to do.  Mr Kirk and Mr Pyper did not agree that Mr Beare’s manner to the claimant was threatening.

		It was not possible to predict the finish time which would only be after Mr Beare had done a final walk around to make sure nothing had been missed.  The tribunal formed the view that the comments made by Mr Beare were made at a time (4.15pm) when he, as the Manager, was under pressure and that he was entitled to expect that the staff would assist him until completion.

	(c)	The claimant believed that he had been dismissed on 28 February 2006 when Steven Beare used the words “you’re sacked”.  The tribunal heard evidence from Mr Beare, Mr Kirk and Mr Pyper that these words had not been used.  All of the staff were working in close proximity.  Mr Beare accepted that he had intended to warn the claimant as to the seriousness of walking out on one of the busiest days of the year before the stocktake was complete.  Mr Pyper gave evidence that he formed the view that Mr Beare was giving the claimant every opportunity to reconsider his action and giving him advice to stay.  The claimant’s evidence was that his impression either way was that he was sacked because of the way it was conveyed to him.  The claimant attended at his normal time the next morning intending to work as he felt he had done nothing wrong and wanted to get on with his job.  In his evidence the claimant referred to being advised on 1 March 2006 of “the inevitable meeting” by Mr Beare.  The tribunal formed the view that the claimant was not summarily dismissed on 28 March 2006 and the disciplinary process was invoked on 1 March 2006.

4.6	The claimant requested notification of the disciplinary hearing in writing and a letter was hand delivered to his home that day.  The letter requested that he arrange a mutually satisfactory time for a hearing by the end of the week otherwise he would be summarily dismissed.

	In his claim form the claimant made the following complaints about the disciplinary process:

	(a)	The process was a paper exercise and a sham with a predetermined outcome and was embarked upon because of Mr Beare’s conduct on 28 February 2006 which constituted an automatically unfair dismissal.  In addition the copy contract had deliberately deleted certain sections.  (Paragraphs 5 and 6).

		The tribunal concluded that the claimant was not dismissed on 28 February 2006 as set out in 4.5 herein.  The allegation in respect of the copy of the contract was not pursued at hearing.

		Mr Walter Weir a Director of the respondent company conducted the Disciplinary Hearing on 1 March 2006.  At paragraph 7 of the claim form the claimant alleged that the presence of Mr Beare denied him an impartial and fair hearing.  The respondent’s evidence was that the letter was intended to ensure a meeting was arranged by the end of that week for a date thereafter.  In addition Mr Beare was asked to attend as a witness to give evidence in respect of the previous day.  The claimant was accompanied by Ms Cathy Heaney a family friend with Human Resources expertise and her suggestions in respect of the meeting were adopted.  Both the claimant and his witness confirmed at hearing that they accepted that the claimant was afforded an opportunity to respond to the allegation.  The date was agreed by the claimant and the allegation of short notice was not pursued at hearing.  Mr Weir’s decision to dismiss the claimant was communicated to the claimant in his letter dated 2 March 2006.

	(b)	The claimant’s responsible Director was Mr Sam McCammond.  By virtue of the fact that Mr Weir responded to Mr Beare’s request for advice on the evening of 28 February 2006, he took responsibility for the Disciplinary Hearing.  The claimant was therefore afforded an appeal to his responsible Director as envisaged by the terms and conditions of employment, that is an appeal to the next level of management.  The claimant exercised his right to appeal to Mr McCammond and did so attending an appeal hearing on 9 March 2006 with Mr McCammond again accompanied by Ms Heaney.  The claimant raised the three issues on which he based his appeal.  At the tribunal hearing both the claimant and Ms Heaney acknowledged that a fair hearing had been afforded.  The claimant was advised by letter dated 10 March 2006 that the decision to dismiss the claimant was affirmed.

	(c)	The claimant exercised his right of appeal to the Board of Directors and attended an appeal meeting on 25 April 2006.  At paragraph 10 of the claim form the claimant states that Mr Stevenson should not have conducted the hearing as he wrote the initial letter to the claimant.  Mr William Stevenson gave evidence that he had written the letter to assist Mr Weir who did not have access to a computer, that the letter was simply informative and that he had no further involvement at that time.

		At the outset Mr Stevenson asked the claimant and his companion if they had any queries or difficulty with any part of the procedure and they advised that they had none.  This was reiterated at hearing before the tribunal.  At paragraph 10 the claimant states that this appeal confirmed his dismissal.  The tribunal heard evidence that the respondent did not come to a decision following the hearing as by agreement the claimant was to consider whether he wished to resign to ensure a clear employment record in light of his plans to emigrate to Australia.  The claimant was asked what he wanted and advised that his position had not been filled.  The claimant indicated that he did not seek reinstatement but wished to be paid for the time he had lost to that date and thereafter until his intended departure date in June (ie 3½ months pay).  The respondent indicated that this was not acceptable.  It was however left that the claimant would return to the respondent to advise how he wished to proceed.  The claimant was mindful that if he returned to work he would have to repay the Job Seeker’s Allowance paid to him.  Thereafter the claimant issued proceedings.  When the claimant was telephoned on 2 June 2006 by Mr McCammond he indicated that it was now beyond his proposal of 25 April 2006 as he had consulted a solicitor and incurred legal costs.

		The tribunal considered the evidence and took into account the Labour Relations Agency Code of Practice.  The evidence on behalf of the respondent was that the company, founded in 1980, had no previous experience of unfair dismissal claims or internal disciplinary matters despite having 50 employees in Northern Ireland.  The tribunal formed the view that the claimant was afforded a full hearing on each of the three occasions when he had the opportunity to state his case.

		The tribunal therefore concluded that the investigation and disciplinary hearings were conducted as fully and as fairly as could be expected of the respondent, reasonableness being the test.

5.	Law and conclusions

	Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 states:

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

	Article 130(1) of the 1996 Order requires that:

		“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 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.

	The tribunal having been satisfied that the respondent had discharged the two burdens under Article 130(1) and (2), Article 130(4) requires that:-

		“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 in treating it as a sufficient reason for dismissing the employee, and

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

	In this case the claimant was dismissed for a potentially fair reason.

	The tribunal is required under Article 130 to ascertain whether the respondent acted reasonably.  The tribunal is not entitled to substitute the conclusions it would have reached for those of the employer.

	The tribunal found the case of British Home Stores -v- Burchell [1978] IRLR 379 to be of assistance where it states:-

	“In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether that dismissal is unfair … tribunal has to decide whether the employer who discharged the employee on the ground of the misconduct in question …. entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  This involves three elements.  First of all, there 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 that the employer at the stage at which he formed that belief on those grounds must have carried out as much investigation as was reasonable in all the circumstances of the case.”

	In J Sainsbury plc -v- Hitt [2003] IRLR 23, this approach was approved by the English Court of Appeal as best reflecting the approach to be taken by tribunals in assessing misconduct cases.

	The tribunal concluded that the respondent had a firm belief that the claimant refused a reasonable request in that he did not remain until completion of the stocktake and thereby refused a reasonable workplace request.  This fell within the definition of gross misconduct in the respondent’s disciplinary code as set out in the terms and conditions of employment.

	The claimant complained of fundamental breaches in the disciplinary hearings.  At the appeal hearing on 25 April 2006 and at the tribunal hearing the claimant did not pursue these allegations which relate to the third element of the Burchell test.  The tribunal was satisfied that the respondent had carried out as much investigation as was reasonable in the circumstances.

	The tribunal concluded that Mr Weir who conducted the  Disciplinary Hearing acted reasonably in finding the claimant guilty of gross misconduct having reasonable grounds on which to sustain this belief.  The tribunal concluded that the appeal hearings gave the claimant a fair hearing.  The tribunal therefore concluded that the investigation and disciplinary hearings were conducted as fully and as fairly as could be expected of the respondent, the test being reasonableness.

	The tribunal having satisfied itself as to the reasonableness of the process carried out went on to consider whether the respondent acted reasonably or unreasonably in treating the conduct of the claimant as a sufficient reason to justify his dismissal.  It is not for the tribunal to decide whether it would have imposed a lesser penalty than that imposed by the respondent.  The question of the reasonableness of the sanction of dismissal was considered in Iceland Foods Limited -v- Jones [1982] IRLR 439:-

	(a)	The starting point should always be the words of [Article 130(4)] themselves

	(b)	In applying the Article an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they, the members of the tribunal, consider the dismissal to be fair.

	(c)	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.

	(d)	In many, although not all cases, there is a band of reasonable responses to the employee’s conduct within which one employer may take one view and another quite reasonably take another.

	(e)	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.

	The respondent’s code of conduct categorises refusal to carry out a reasonable instruction as gross misconduct and the claimant was advised that dismissal was a possibility prior to the Disciplinary Hearing.  The respondent’s evidence was that this stocktake was the most important day in the year to the business and if other staff acted in the same way as the claimant it would have implications for the business.  Mr Beare felt that he had lost all authority as the Manager.  The tribunal having considered all the evidence and submissions concluded that the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted.

	The dismissal was therefore fair and the claim must fail.  The claimant had lodged a claim form in respect of notice pay.  In the circumstances of the claimant’s dismissal for gross misconduct without notice the claim for notice pay must fail.

Chairman:

Date and place of hearing: 19- 20 December 2006, 20-22 February 2007, 
                                              17-18 April 2007 and 22 June 2007		

Date decision recorded in register and issued to parties: