THE INDUSTRIAL TRIBUNALS
CASE REF: 1727/08IT
CLAIMANT: Paul Fox
RESPONDENT: Almac Group Limited
DECISION
It was the decision of the majority of the tribunal that the claimant was not unfairly dismissed. The minority of the tribunal considered that the claimant had been unfairly dismissed but also considered that there would have been a 100% likelihood that the claimant would have been dismissed even if the procedural unfairness to the claimant had not taken place.
Constitution of Tribunal:
Chairman: Ms WA Crooke
Members: Mr Sidebottom
Mr Rosbotham
Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr Peter Bloch of Engineering Employers Federation Northern Ireland
Sources of Evidence
The claimant gave evidence on his own behalf. Ms Sarah Bondi and Mr Damien Farragher and Mr William McCracken gave evidence for the respondent. The tribunal also have before it a bundle of documents that were largely agreed between the parties subject to some comments by the claimant.
The Claim and the Defence
The claimant claimed that he had been unfairly dismissed by the respondent. The respondent said that the claimant had been fairly dismissed on account of his conduct.
The Relevant Law
The relevant law is found in Article 130 of the Employment Rights (Northern Ireland) order 1996 which says 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 a dismissal,
(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 or qualifications for the employee or performing work of a kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or of that of his employer) of a duty or restriction imposed by or under a statutory provision.
Furthermore the tribunal also considered subsection 4 of Article 130 which states as follows –
(1) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal was fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether under the circumstance (including the size of the administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.
The tribunal also considered the case of Polkey v AE Dayton Services Limited [1988] ICR142.
Preliminary Matters
At the outset of the hearing Mr Bloch submitted on behalf of the respondent that the three additional respondents Peter McCorey, Joseph Beatty and Nigel Cooper, should all be dismissed as respondents to the claim. As the claimant admitted that they were not his employer and had not carried out any discrimination against him the tribunal acceded to this request and accordingly the 2nd 3rd and 4th respondents are no longer respondents to these proceedings.
Findings of Facts
- The respondent company is involved in the pharmaceutical industry. It is a substantial operation which has a high degree of customer interface in that it can be subject to visiting by its customers on an average or 2-3 times per week and also to the regular government audits. The claimant was a senior operator-grade one who worked in the distribution department of the respondent's business selecting pre packed items and putting together orders of pharmaceutical goods for various customers such as hospital dispensaries.
- The claimant had an ongoing difficulty with supervision in the course of his employment. He considered that he was being "mentally tortured" by the supervisors in his department. He also considered that he had been unfairly overlooked for promotional opportunities. The claimant in or around 8 July 2008 engaged in an informal grievance procedure as provided for in the company's Dignity At Work policy and procedure dated July 2007. This involved him meeting with his manager Damien Farragher and a member of the Human Resources department to informally indicate his difficulties to them. At the end of the meeting Mr Farragher confirmed in his evidence that he felt the way forward had been agreed and that the claimant was satisfied with the action plan to be put into place. He felt that the matter could rest until his return from holiday later on in July. The claimant contended that he did not agree with this version of events but the tribunal finds that it is more likely than not to be true because a contemporaneous report from the Occupational Health Nurse of the company stated that the claimant, while he had certain difficulties in his personal life, occupationally, had no issues with his job. "…although he said there were some minor issues that he did not disclose, he felt they could be easily addressed and were not of any concern to him." In the light of this contemporaneous email dated the 17 June 2008, from the company Occupational Nurse to the HR Department, the tribunal finds that it is more likely than not that the claimant was satisfied with the proposed action plan to deal with his concerns. The tribunal has also noted that the claimant contended that for 8 weeks prior to 25 July 2008 he was in a state of "mental torture". The tribunal does not consider that this contention sits easily with the matters and information given by Arlene Donnelly the Occupational Health Nurse to the HR Department. The tribunal considers that if the claimant had been in a real state of "mental torture" he would have informed the Occupational Nurse at his meeting with her on 17 June 2008.
- The respondent operates a "clean room" facility at its premises. The claimant worked in this area of the respondent's premises. This entails the staff of the respondent wearing uniforms, hair nets and over shoes in the course of their work. The essence of the clean room facility is to rule out any possibility of contamination of the drugs which are stored in the clean room.
- On 25 July 2008, the claimant was asked to carry out a task by a supervisor called Joseph Beatty and he had some difficulty in doing so. He returned to Joseph Beatty to explain that the box from which he sought drugs for an order was in disorder and he was unsure what to do. There was a divergence in the evidence between the version of the company which was that Joseph Beatty called the claimant "lost", and the version of the claimant that Joseph Beatty called him "stupid" and a "nutcase". The claimant lost control and turned his back on Mr Beatty who asked him not to walk away from him. The claimant further lost control by seizing a box of "Plato" bags and scattering them over the floor. Plato bags are a specific form of bag in which patients participating in drug trials take their medicine home with them from the hospital. Therefore to the respondent company it is of prime importance that there should be no issues of contamination. This event took place on the top floor of the respondent's facility. The claimant then proceeded to the second floor of the respondent's facility. He bumped into or met a fellow employee who shared a "lift" with him – Mr Gary Neil, and told him that he would not require his lift home as he was leaving. He then scattered a box of Pfizer bottles of tablets over the floor and proceeded to the ground floor. He, in the claimant's case bumped into a palate of boxes with his shoulder, but on the respondent's case deliberately punched them with the effect of making the contents of the boxes spill onto the floor and be, in the view of the respondent, contaminated. He then proceeded to the locker room and cleared out his locker leaving behind his company fleece. Another supervisor of the company, Mr Cooper, asked him what was going on but the claimant ignored him and did not speak to him. The claimant left the premises of the respondent.
- On 25 July 2008 Mr Cooper sent an email to the manager of the department Mr Damien Farragher and members of the HR Department outlining very briefly what had taken place. On 30 July 2008, Mr Farragher and Emma Canning, a member of the HR staff, conducted an investigatory meeting with the claimant at 2.30pm. The claimant did raise his contention of being subjected to "mental torture" and Mr Farragher summarised to him that he felt that the matter involved three fairly significant issues as follows; -
(i) Insubordination
(ii) Wilful damage
(ii) Leaving the site without authorisation
The claimant considered that difficulties were not taken on board by the investigation, but the meeting closed on the basis that the investigators would look into the matter further with the supervisors involved Mr Beatty and Mr Cooper. They also investigated the matter by phone with Mr Gareth Hamilton. The result of the investigations was that a disciplinary meeting was scheduled to take place on Friday 1 August 2008. This meeting eventually took place on 4 August 2008. The claimant was accompanied by Mr Patrick Dunlop a work colleague, and Mr Farragher was accompanied by Emma Canning and Carrie Sharpe of the HR Department. At the outset, the claimant made some changes to the notes. Mr Farragher raised the three individual complaints with the claimant and the claimant said that he had totally lost control and that he had been mentally tortured for eight weeks. In short he felt he was provoked. The claimant maintained to the day of these tribunal proceedings that he had no memory of what he did on the third floor of the respondent's facility. Although the tribunal noticed he seemed to recover his memory once he reached the second floor of the building and had spoken to his work colleague about his lift. The disciplinary meeting adjourned briefly and reconvened to indicate to the claimant that he was being dismissed summarily for gross misconduct.
- This was confirmed by letter dated 5 August 2008 and the claimant was advised of his rights to appeal in the same letter. The appeal hearing was heard on 1 September 2008 in the presence of Andrew Scott the Logistics Manager and Sarah Bondi another member of the HR Department. At the appeal the claimant contended that there had been inconsistency of treatment in relation to his dismissal and that there had been contributory factors leading up to the incident which had not been considered. Ms Bondi on foot of these points commissioned a further investigation of the five comparators who allegedly were treated more favourably than the claimant. The notes of the investigation carried out by Carrie White were considered by Ms Bondi and having investigated each alleged incident, considered that there was no inconsistency of treatment and that the disciplinary hearing had taken into consideration all the contributory factors stated by the claimant.
Analysis of Evidence
In general, where there was a divergence in the versions of events given by the perspective parties, the tribunal preferred the version given on behalf of the respondent, as it noted some considerable inconsistency in the version of events given by the claimant.
Conclusions
- Having taken account of the relevant law and applied it to the facts, the tribunal finds that the claimant was dismissed on account of his conduct on 25 July 2008. The majority of the tribunal found that the decision fell within the band of reasonable responses of a reasonable employer acting reasonably when faced with the same situation. The tribunal found that each individual action of the claimant was gross misconduct and each action in itself merited dismissal. Therefore the majority of the tribunal found that the claimant had been fairly dismissed. They did not consider that it was unfair on a procedural basis for the respondent to separate out the claimant's issues about supervision and promotion from a consideration of the claimant's behaviour. The majority found that it is not unreasonable for them to do so given that the claimant had a matter of only three weeks before his meeting with Mr Farragher indicated that he had no substantial work issues. Additionally the respondent considered that a man who acted on three separate floors and who did not need a lift home, not telling a supervisor he was leaving when clearly he was, knew what he was doing.
- In short the majority considered that the respondent had a reasonable belief in the claimant's guilt and that it was reached after a reasonable investigation. Everyone involved in the incidents of 25 July 2008 was interviewed. The claimant admitted some of the misconduct indicating he had lost control. We also consider that the appeal was fair in that it considered everything that the claimant brought up, and a further investigation was commissioned into the five cases which the claimant said were comparable to his situation but the perpetrators of which had not been subject to disciplinary action. It was the view of the whole tribunal that it would have been preferable had it not been carried out by the same person who had conducted the disciplinary hearing. However of itself the tribunal did not consider this one incident sufficient to render a dismissal unfair on procedural grounds.
- The only basis upon which the minority differed from the majority was that the minority of the tribunal considered that it was unfair of the respondent not to take account of circumstances arising that led up to 25 July 2008, together with previous disciplinary record and length of service. Effectively, the minority felt that the respondent had not proved the dismissal to be fair in all the circumstances, as all the circumstances of the case had not been considered. However the minority found that even if all the formalities had been observed, in accordance with the dicta of Lord Bridge in the case of Polkey v AE Dayton Services Limited [1988] ICR 142, that there would have been a 100% likelihood that the claimant would have been dismissed in any event. Given the nature of the business carried out by the respondent, the minority considered that there were no circumstances in which anyone who behaved as this claimant behaved would be allowed to stay in employment. Accordingly then the case of the claimant is dismissed.
Chairman:
Date and place of hearing: 9-10 June 2009, Belfast
Date decision recorded in register and issued to parties:
