Cardwell v Keep Off Site Solutions Limite... [2010] NIIT 1074_10IT (28 October 2010)

1074_10IT Cardwell v Keep Off Site Solutions Limite... [2010] NIIT 1074_10IT (28 October 2010) [ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Industrial Tribunals Northern Ireland Decisions You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cardwell v Keep Off Site Solutions Limite... [2010] NIIT 1074_10IT (28 October 2010) URL: https://www.bailii.org/nie/cases/NIIT/2010/1074_10IT.html Cite as: [2010] NIIT 1074_10IT [ New search ] [ Printable RTF version ] [ Help ] THE INDUSTRIAL TRIBUNALS CASE REF: 1074/10 1300/10 CLAIMANT: David Cardwell RESPONDENT: Keep Off Site Solutions Limited (in Administration) DECISION The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. The claimant’s claim is therefore dismissed. Constitution of Tribunal: Chairman: Mrs Ó Murray Members: Mr R Gray Mr W Mitchell Appearances: The claimant appeared in person. The respondent was represented by Mr A Ferguson of Personnel and Training Services. The Claim 1. The claimant’s claim was for unfair dismissal and breach of contract and unfair deduction from wages. 2. The parties agreed figures to settle the claims other than the unfair dismissal claim. At hearing, therefore, the only remaining claim before the tribunal was in relation to the unfair dismissal claim. The Issues 3. The issues before the tribunal were as follows:- (a) Was the claimant dismissed for misconduct? (b) Was that dismissal fair in all the circumstances as regards both the procedure and the decision to dismiss? (c) Did the difference in treatment between the claimant and Mr GE render the claimant’s dismissal unfair? Sources of Evidence 4. The tribunal heard evidence from Mr Sean Truesdale, Managing Director of the respondent company; Mr Gerard Walsh, Production Manager; and Ms Nicola Baker, General Manager. For the claimant the tribunal heard evidence from Mr Herbert Walker and from the claimant himself. The tribunal also had an agreed bundle of documentation and had regard to the documents to which it was referred during the evidence. Findings of Fact 5.1 The tribunal considered all the evidence, both oral and documentary, and reached the following findings of fact on a balance of probabilities. 5.2 The claimant was employed as a shot blaster painter from 9 July 2007 until 5 January 2010 when he was sacked for gross misconduct. 5.3 The claimant and his colleague, GE, had been sent by the respondent to carry out remedial works at a site in Stockport. The period in issue in the disciplinary proceedings was from 10 December 2009 to 14 December 2009. 5.4 The nature of the respondent’s business was such that workers were often required to travel to work on projects and had to be trusted to ring the respondent’s office to give the correct hours they had worked on such projects. 5.5 A swipe card clocking system was in operation at the Stockport site which involved workers using their swipe card to gain entry through the outer perimeter of the site. Workers had to use their swipe card again to gain entry to the inner part of the site where the actual building works were being carried out. 5.6 The respondent company had been engaged as a sub-contractor by one of the main contractors on the site. The disciplinary investigation was triggered by a complaint made to Mr Truesdale by that contractor in relation to the attendance and level of work carried out by the claimant and GE. The contractor stated that site statistics, derived from the clocking records, showed that the respondent’s workers were the least productive on that site during that period. This statistic was arrived at by looking at the time spent on the actual building works on the inner site in proportion to the time spent within the perimeter of the building site as a whole. 5.7 Mr Truesdale believed that this information meant that the two men might have worked for fewer hours than the hours they had claimed. He flew to Stockport on Wednesday, 16 December to check the clock-in records for himself. He extracted the relevant records for both men, spoke to a member of site staff, and was sufficiently concerned about the disparity between the hours claimed by the men and the hours actually worked on the inner site, to recommend that disciplinary action be initiated. 5.8 The matter was then dealt with by Mr Walsh, the Production Manager, who sent a letter on 16 December 2009 requesting that the claimant attend a Disciplinary Hearing. The letter outlined the nature of the allegations, warned the claimant that the allegation could amount to gross misconduct and that he was liable, if found guilty, to be summarily dismissed. The claimant was also informed of his right to be accompanied. This letter complied with step one of the Statutory Dismissal Procedures. 5.9 The Disciplinary Hearing took place on 4 January 2010. The allegations were put to the claimant and he had a full opportunity to give his version of events. The claimant gave several reasons for the disparity between the hours claimed, the hours spent on site and the hours spent on the inner site. 5.10 Mr Walsh considered what the claimant had said and concluded that the disparity between the hours claimed by the claimant and the actual hours worked on the inner site was so great that the claimant’s claim that he had worked eight hours each day and five hours on the Sunday amounted to falsification of records, and thus amounted to gross misconduct. 5.11 The complaint from the contractor had been in relation to poor attendance and lack of effort. For Mr Walsh, any performance issue was secondary to the key issue for him which was the false report from the claimant that he had been working for more hours than was in fact the case. Mr Walsh therefore felt that this behaviour of the claimant struck at the heart of the trust which was required in a business where workers, on occasion, had to travel to sites unsupervised and ring in their hours. 5.12 The meeting of 4 January 2010 complied with step two of the Statutory Dismissal Procedures. 5.13 The claimant had a ‘live’ final written warning on his record at the time the decision to dismiss was taken. 5.14 By letter of 5 January 2010 Mr Walsh dismissed the claimant for gross misconduct and advised him of his right of appeal. This complies with step three of the Statutory Dismissal Procedures. 5.15 The claimant decided not to appeal. 5.16 The claimant’s co-worker, GE, was also summarily dismissed for the same reason but was reinstated on appeal. The reason for the reinstatement was that GE stated that he did not ring in the hours but that those were telephoned to the office by the claimant and that GE was not aware of what the claimant represented in the phone calls. Ms Baker dealt with GE’s appeal and decided that, as he had not actually made the false declaration, (a point confirmed by another worker), the finding of gross misconduct for falsification of records could not stand. It was not in dispute that the claimant rang in the hours for both himself and GE. The Law 6.1 The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason relating to conduct, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4). 6.2 The task for the tribunal in a misconduct dismissal is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303 : “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 … 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 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 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”. 6.3 The “Burchell test” has been approved by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 . This “range of reasonable responses” test is also applicable to procedural issues as confirmed by the Northern Ireland Court of Appeal in Ulsterbus Ltd v Henderson [1989] IRLR 251 . 6.4 The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time. The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing. The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. The appellate courts have made it clear that the tribunal should not seek to substitute its own view for that of the employer nor should it seek to retry the disciplinary hearing. 6.5 The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting. 6.6 The following principles derive from case law in relation to consistency of treatment when disciplining employees for the same offence: (a) Employees who misbehave in much the same way should have meted out to them much the same punishment. (b) Tribunals should not adopt a ‘tariff’ approach and it is of the highest importance that flexibility should be retained when an employer has to deal with industrial misconduct. (c) If an employer consciously distinguishes between two cases the dismissal can be successfully challenged only if there is no rational basis for the distinction made. Conclusions 7.1 Our task is not to rehear the misconduct allegations and decide what we would have done in the employer’s place: rather our task is to assess the employer’s actions and decide whether or not the employer’s actions were within the band of reasonable responses which a reasonable employer might have adopted in the circumstances both as regards procedure and penalty. 7.2 We are satisfied that Mr Walsh genuinely believed that the claimant was guilty of falsification of records and that this amounted to gross misconduct warranting dismissal as it struck at the trust required in this business. Mr Walsh arrived at his decision following a reasonable investigation carried out by Mr Truesdale and following the disciplinary hearing when the claimant had a full opportunity to put his side of the case. 7.3 It is clear from the record of the disciplinary hearing that there was a full airing of the issues and the outcome was that Mr Walsh did not accept the claimant’s account of the reasons for the long periods spent away from the inner site. The respondent’s evidence was clear that if the claimant had unavoidable periods of inactivity, as he alleged, he should have telephoned the respondent company for further direction if necessary. We accept the respondent’s evidence that there were other jobs that the claimant could have carried out on site on his own initiative as men were engaged on various tasks for a further few days and another squad was sent over during that period to work on outstanding jobs. 7.4 Mr Walsh therefore had reasonable grounds on which to base his belief that the claimant was guilty of the allegations. The penalty of dismissal was within the band of reasonable responses particularly as the claimant was on a final written warning at the time of the dismissal and as Mr Walsh regarded the offence as striking at the trust required in the respondent’s business. 7.5 Mr Truesdale had gathered sufficient evidence to warrant the disciplinary process and it was within the band of reasonable responses for Mr Walsh to have rejected the claimant’s explanation for the disparity in the figures and his explanation for his long periods of inactivity highlighted by the records. 7.6 The Statutory Dismissal Procedures were complied with by the respondent. 7.7 The respondents had a rational reason to distinguish between the claimant and GE and we therefore find the difference in treatment between the two men did not render the dismissal of the claimant unfair. 7.8 In summary the claimant was fairly dismissed for gross misconduct following a fair procedure. The difference in treatment between the claimant and GE did not render the claimant’s dismissal unfair. Chairman: Date and place of hearing: 20 and 21 September 2010, Belfast. Date decision recorded in register and issued to parties: BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/nie/cases/NIIT/2010/1074_10IT.html