THE INDUSTRIAL TRIBUNALS

CASE REF:  06187/09

CLAIMANT:			William Murphy

RESPONDENT:		Resource (NI) Limited

DECISION

The unanimous decision of the tribunal is that the dismissal of the claimant was an automatically unfair dismissal as a result of the respondent’s failure to complete the statutory dismissal procedure.  The compensatory award is reduced by 100% to reflect the tribunal’s conclusion that the claimant would still have been dismissed had statutory procedure been properly completed.  The tribunal further concludes that it would, in all the circumstances of the case, result in injustice to the respondent to require it to make any payment by way of a minimum basic award under Article 154(1) (4) of the 1996 Order and the basic award which would otherwise have been payable is reduced by 100% on the basis of the claimant’s contributory conduct. No compensation is therefore payable.

Constitution of Tribunal:

Chairman:		Mr N Kelly

Panel Members:	Ms V Walker
			Ms J McNulty

Appearances:

The claimant appeared in person and was unrepresented.

The respondent was represented by Mr P Bloch, Barrister-at-Law, of the Engineering Employers’ Federation. 

ISSUE TO BE DETERMINED

(1)	The issue to be determined was whether the claimant had been unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order).

RELEVANT FINDINGS OF FACT

(2)	The respondent is a facilities management company which at all relevant times was responsible for security at Victoria Square shopping centre in Belfast.  
(3)	The claimant was employed as a security guard from 16 April 2008 to 24 April 2009 by the respondent at Victoria Square.

(4)	On or about 5 April 2009, a Ms Lorraine Megaw, a manager employed by the respondent in Victoria Square, received a complaint from Joseph Bennett, a security guard employed in Victoria Square.  The complaint was that the claimant had approached Mr Bennett and Mr Rob Cordner, another security guard, on the previous night shift on Saturday 4 April 2009.  Mr Bennett stated that the claimant had said to Cordner “Gonna tell you a joke here but Joe (Mr Bennett) might not like it.”  He then proceeded to say “What do you do if you see a fenian with half a head?  Stop laughing, reload and finish the job.”

(5)	Ms Megaw asked Mr Bennett to put his complaint in writing and Mr Bennett did so.

(6)	Mr Cordner was asked to prepare a written statement and he did so on 15 April 2009.  He stated that the claimant had said to him “Rob I’m going to tell you a joke, Joe will not like it.”  Mr Cordner did not recount the joke in that statement but added that “If you need to know what the joke actually said, please don’t hesitate to contact me.”

(7)	Mr Cordner provided a further written statement on 24 April 2009 which recounted the joke and stated;

“What do you do if you see a fenian with half a head?  Stop laughing and reload the shotgun and finish the job.”

(8)	On 10 April 2009, Mr Stephen Priestley, a security supervisor employed by the respondent, lodged a written complaint which stated that the night of 10 April 2009, while Mr Priestley was in the control room with Mr Mark Millar, the claimant referred to a group of young men who were visible on the CCTV footage as “A bunch of fucking fenian bastards.”  When his language was criticised by Mr Millar, he replied “Fuck it, I don’t give a fuck, they are the enemies of Ulster.”

(9)	On 14 April 2009, Mr Priestley prepared a written statement setting out his complaint.

(10)	On 10 April 2009, Mr Millar, in a written statement, stated that the claimant had described the group of youths as a “Bunch of fenian bastards” and that he had stated “Fuck it.  I don’t care.  They are the enemies of Ulster.”

(11)	On 14 April 2009, Ms Megaw telephoned the claimant to advise him that he was being suspended from work to facilitate an investigation into allegations concerning his conduct on 4 April and 10 April 2009. That telephone call was confirmed in a letter of the same date. That letter also invited him to an investigation meeting on 16 April 2009.  It stated that while this was not a disciplinary hearing, the respondent would allow the claimant to be accompanied by a fellow employee.

(12)	The investigatory meeting proceeded on 16 April 2009 and was conducted by Mr Mark Pollock who was the security manager employed by the respondent.  Ms Foote was note taker.  The claimant confirmed that he was happy to proceed without representation.  He simply denied that he had ever told the joke to Mr Bennett and Mr Cordner as alleged on 4 April 2009 and that he had ever made the sectarian comments as alleged on 10 April 2009.  He was unable to put forward any suggestion as to why the four individuals involved, Mr Bennett, Mr Cordner, Mr Priestley and Mr Millar would have said what they did about his behaviour, other than to state that “A lot of things have been said to me” and “I have problems with them two (Mr Priestley and Mr Millar).  I don’t like working with them.  It’s lies”.  He alleged that Mr Priestley and Mr Millar were the best of friends and were sticking together.

(13)	A disciplinary charge issued to the claimant on 20 April 2009 inviting him to a disciplinary meeting on 23 April 2009 and enclosing the relevant witness statements.  He was advised that he was entitled to be accompanied by a work colleague or an accredited trade union representative.

(14)	The disciplinary hearing proceeded on 23 April 2009 and was conducted by Ms Megaw.  Her deputy Mr Boyle was note taker.  Again, the claimant simply denied that he had said what he was alleged to have said.  He stated that Mr Priestley and Mr Millar hated him and that they had always been out to get him.  He had no idea why Mr Bennett and Mr Cordner would have said what they said.  

(15)	On 24 April 2009 Ms Megaw wrote to the claimant dismissing him summarily on the ground of gross misconduct.  The letter advised him that;

“You have the right to appeal against my decision.  This should be made in writing addressed to Janice Brannigan, Operations Director, Resource, Edgewater Business Park, 8 Edgewater Road, Belfast, BT3 9JQ, within five working days from the receipt of this letter, clearly stating your reasons for the appeal. “

(16)	The claimant sought advice from the Citizen’s Advice Bureau and the Citizen’s Advice Bureau wrote to Ms Brannigan on 29 April 2009 asking firstly for a written statement of the reasons for dismissal and stating;-

“Our client also wishes to appeal your decision to dismiss on the grounds that the company did not produce sufficient substantive evidence to support the allegations made against him.  We trust that you will make the necessary arrangements.  Please be advised that it would be our client’s intention to exercise his right to be accompanied at the appeal hearing.”

(17)	On 25 May 2009 a Ms Una McGeown, who worked in the HR Department of the respondent, replied to the Citizen’s Advice Bureau stating;

	“Mr Murphy was informed of the outcome of his disciplinary hearing in a letter dated 24 April 2009.  In the same letter he was informed that he had the right to appeal the decision and was provided with the necessary information to enable him to do so.  With the right to disciplinary proceedings Mr Murphy was awarded the opportunity to be accompanied by a work colleague or a recognised trade union official; should Mr Murphy appeal the decision he will be awarded the same opportunity.”

(18)	No appeal hearing was ever arranged.  

RELEVANT LAW

(19)	Article 130(A) of the 1996 Order provides;

“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a)	one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal; 

(b)	the procedure has not been completed and,

(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

 (2)	Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”

(20)	The standard dismissal procedure is set out in full in Schedule 1 to the Employment (Northern Ireland) Order 2003 that this provides for a three stage procedure.  The first stage is a written statement of the circumstances which led the employer to contemplate dismissing the employee; that written statement must be sent to the employee together with an invitation to attend a meeting to discuss the matter.  The second stage is the meeting at which the employer informs the employee of the decision and notifies the employee of his/her right to appeal against the decision.  The third stage is the appeal and notification by the employer to the employee of the decision on appeal.

(21)	If an employer fails to follow the statutory dismissal procedure, it was held in Polkey  v  AE Dayton Services Ltd [1998] ICR 142, that the tribunal may reduce the compensatory award by an appropriate percentage to reflect the probability of a dismissal occurring in any event had the statutory procedure been completed.

DECISION

(22)	It is clear that the statutory dismissal procedure was not completed in that no appeal took place.

(23)	It is also clear that this non-completion was due entirely to the actions of the employer.  The letter from the Citizen’s Advice Bureau, dated 29 April 2009, made it absolutely plain that Mr Murphy wanted to appeal the dismissal decision on the ground that the respondent did not have sufficient evidence to support the allegations made against the claimant.  It is impossible to read this letter as anything other than a clear request on behalf of the claimant to set up the appeal hearing and a very clear indication that the claimant would exercise his right to be accompanied at the appeal hearing.  Ms McGeown, in her reply to the Citizen’s Advice Bureau on 25 May 2009, did not address this clear request.  She proceeded on the basis that no appeal had been made and that if one was made, the claimant could only be represented by a work colleague or a trade union representative.  The respondent did not allow outside agencies to appear on behalf of employees or former employees in disciplinary or appeal procedures. The tribunal concludes that Ms McGeown therefore took the view that the letter from the Citizen’s Advice Bureau was of no significance.  In the view of the tribunal, this was entirely wrong.  It would have been easy for Ms McGeown to have written back to the Citizen’s Advice Bureau and indeed to the claimant, indicating that an appeal would be arranged but that, at the hearing of that appeal, the claimant could only be represented by a work colleague or a trade union representative and that he could not be represented by the Citizen’s Advice Bureau.  Ms McGeown was unable to explain satisfactorily why this was not done. The tribunal however accepts that she genuinely misunderstood the position and was not motivated by any desire to deprive the claimant of his statutory rights. 

(24)	Ms McGeown accepted that there was nothing unusual in an employee who had just been dismissed seeking advice from a body such as the Citizen’s Advice Bureau and nothing unusual in the Citizen’s Advice Bureau writing into an employer on behalf of such an individual.  There is nothing in the legislation which would suggest that a letter written on behalf of an individual by a voluntary organisation can not be an appeal for the purposes of the statutory procedure.  

(25)	The tribunal therefore concludes that the failure to complete the statutory dismissal procedure is entirely due to actions of the employer and that the dismissal was therefore automatically unfair for the purposes of the 1996 Order.

(26)	That said, the claimant was clear that he would not have produced any additional evidence or information at any appeal hearing.  He would have simply repeated what he had said previously ie his assertion that it was all “lies”.  This was a situation where the respondent had four clear statements from separate employees which supported the case against the claimant.  A reasonable investigation, which satisfied the objective test set out in Sainsburys  v  Hitt, had been conducted and the respondent had reached a genuine and reasonable belief that the claimant had told a sectarian joke on 4 April 2009 and had uttered sectarian comments on 10 April 2009, both in the presence of work colleagues and in the course of his duties.  Given the evidence before the respondent, and in the absence of any plausible explanation from the claimant as to why four of his colleagues would have given false evidence against him, it is difficult to see how any employer could have come to any other conclusion.  Furthermore, no employer within Northern Ireland, above all an employer who engages staff who deal regularly with the public, can be expected to treat such misconduct leniently.  In the tribunal’s view, a reasonable employer, in these circumstances and with this evidence before it, was entitled to regard this as gross misconduct and to summarily dismiss the claimant.

(27)	The provisions of Article 130(A)(2), referred to above, apply only where the statutory dismissal procedures have already been compiled with and relates solely to a failure by the employer to follow some other procedure, such as an internal dismissal procedure or a recommendation in the Labour Relations Agency Code.  It has no bearing in the circumstances of the present case.  See Alexander  v Bridgen Enterprises Ltd [2006] IRLR 422.

(28)	The tribunal considers that the compensatory award should be subject to a Polkey reduction of 100% to reflect the certainty, in the tribunal’s view, that the claimant would still have been dismissed if the respondent had arranged and conducted an appeal hearing in accordance with the statutory dismissal procedures.

(29)	The basic award in a case involving a breach of a statutory dismissal procedure, where that award is less than four weeks pay, as in the present case, should normally be increased to four weeks pay, unless the tribunal considers that such an increase “would result in injustice to the employer” under Article 154(1)(a).  

(30)	In deciding whether or not an award would result in injustice to an employer for the purposes of Article 154(1) (a), the tribunal is entitled to reach its own conclusions on the evidence which was available to the employer.  The normal role of the tribunal in relation to unfair dismissal is of course to determine whether or not a dismissal was within the band of reasonable responses open to an employer and the tribunal should be careful not to put itself in the position of the employer in reaching a conclusion.  However a determination for the narrow purposes of Article 154(1) (a) falls outside that limitation.  The tribunal therefore concludes that the claimant did in fact tell the joke and utter the sectarian comments on 4 April and 10 April respectively, as alleged, and that in those circumstances, it would result in serious injustice to an employer if they were to be fixed with a financial penalty simply because an employee in it’s Human Resources Department misunderstood the position and did not arrange an appeal which would not have materially altered the outcome of the case.  The 2003 Order is not meant to provide a windfall for an entirely unmeritorious claimant at the expense of an employer who makes a technical error. The tribunal therefore does not increase the basic award.

(31)	The basic award may also be reduced were the conduct of the employee was such that it would be “just and equitable” to reduce that award – see Article 156(2) of the 1996 Order.  For the reasons set out above, the tribunal reduces the basic award which would otherwise have been payable by 100%.

(32)	The decision of the tribunal is therefore that this was an automatically unfair dismissal by reason of the respondent’s failure to provide an appeal, as part of the statutory dismissal procedure, but that no compensation is payable.

Chairman:

Date and place of hearing:	11 January 2010, Belfast.

Date decision recorded in register and issued to parties: