Baird v McCausland Airport Garage Limi... [2011] NIIT 02757

THE INDUSTRIAL TRIBUNALS

CASE REF: 2757/10

CLAIMANT: Charles Alfred Ashley Baird

RESPONDENT: McCausland Airport Garage Limited

DECISION

The unanimous decision of the tribunal is to dismiss the claim.

Constitution of Tribunal:

Chairman: Mr Travers

Panel Members: Mr Sidebottom

Mr Roddy

Appearances:

The claimant appeared in person and was assisted by Ms Donaldson his McKenzie Friend

The respondent was represented by Ms Rachel Best, Barrister, instructed by Mills Selig

REASONS

Issue

1. The one issue in the case is whether or not the claimant was unfairly dismissed.

Facts

2. The respondent is a company which operates an off-airport car park close to Belfast International Airport. Drivers wishing to use the respondent’s car park drop their vehicle off at the entrance to the car park. The vehicle is then parked in the car park by a member of the respondent’s staff.

3. The safe and secure storage of customers’ cars is at the core of the service offered to the public by the respondent.

4. The claimant was employed by the respondent as one of the team of car park drivers who are responsible for parking customers’ cars. He commenced employment on 28 May 2006 and his employment was terminated by the respondent on 8 October 2010.

5. It is not in dispute that prior to the incident which precipitated his dismissal the conduct of the claimant as an employee was of the highest order. He was hard-working and an excellent timekeeper.

6. The claimant’s dismissal occurred as a result of an accident which occurred in the car park on 26 September 2010 during the night shift. The claimant was driving a customer’s vehicle from one space in the car park to another when the car collided with a lamp-post in the central reservation. The collision caused in excess of £2,500 worth of damage to the customer’s vehicle. Ultimately the respondent had to meet the repair bill. There were no witnesses to the accident other than the claimant himself.

7. The claimant reported the accident to his line manager immediately. The car was photographed and the next day the incident was reported to the general manager of the car park, Mr Sands.

8. The general manager carried out an investigation. During the course of that investigation he did not speak to the claimant.

9. During the course of his investigation Mr Sands ascertained: the nature of the damage to the vehicle; the route that the vehicle was taking when the accident occurred; the fact that no other vehicle was involved; and the fact that the claimant was driving the vehicle at the time the accident occurred.

10. By letter dated 28 September 2010 Mr Sands invited the claimant to a disciplinary meeting to meet an allegation that, “On Sunday 26^th September 2010 through serious carelessness on your part you damaged a customer’s vehicle”. The letter went on to warn that, “In the Company’s view, these allegations constitute gross misconduct...Since the Company views the allegations against you as gross misconduct, I must inform you that the outcome of this disciplinary hearing could result in your summary dismissal”.

11. The respondent’s employee handbook gives examples of various matters which will be deemed to be gross misconduct including, “Causing loss, damage or injury through serious carelessness”.

12. The claimant prepared a short handwritten statement which was submitted in advance of the disciplinary hearing. The statement read as follows:

“As I was driving down H row, the window on the inside became misted up. As I was unable to see out I leaned over to wipe it at the passenger’s side of the front screen. I glanced up and thought I was going to hit another car, so I pulled the steering wheel to the left and hit the lamp post at the l bottom of G-H and did a lot of damage to the car. I then reported it to my supervisor at the time. I really am very sorry for what has happened.”

13. The disciplinary meeting took place on 4 October 2010. The brief note of the meeting includes the following:

“Alfie was asked as to why he did not stop to clear the windscreen. Alfie replied, “Fair point but the customer was waiting and we were under pressure because of delayed flights”. When asked how he would have handled it on an ordinary road he said he would have pulled over. He stated that it was a very cold night and on a normal journey the car would have been warm.”

14. Following the disciplinary meeting the claimant was notified that his contract of employment was to be terminated on the grounds of gross misconduct.

15. The claimant appealed the decision to dismiss him. The appeal hearing was conducted by the managing director of the business, Mr McCausland. In respect of how the accident came about, the claimant said the following:

“I had my hand on the left on the steering wheel. I was leaning across with my right trying to clear the mist on this. That’s where when I glanced up I genuinely thought there was another vehicle. I pulled hard down on the steering wheel and the car came in that way...On the approach and when I glanced the only thing I can think when I have yanked that steering wheel the car has done a major turn on the picked up [sic] lamp post on that side.”

16. The decision to dismiss the claimant was upheld on appeal.

17. The claimant accepts that the accident was his fault and that there was in fact no other vehicle in the car park.

Law

18. The tribunal has considered Part XI of The Employment Rights (NI) Order 1996 [“the E.R.O.”] which sets out the statutory provisions governing unfair dismissal.

19. An employee has a right not to be unfairly dismissed [Art.126].

20. In determining whether a dismissal is fair or unfair, it is for the employer to show the reason for the dismissal and that the reason is a permissible one under the E.R.O. The conduct of an employee is such a permissible reason [Art.130].

21. Where the employer has demonstrated that the reason for the dismissal is a permissible reason:-

“...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 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.” [Art.130(4)]

22. The claimant was dismissed on the ground of gross misconduct. In British Home Stores v Burchell [1978] ICR 303, Arnold J addressed the correct approach to cases of suspected misconduct:

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question (usually, though not necessarily, dishonest conduct) 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 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.” [p304]

23. The cumulative effect of the decisions in Iceland Frozen Foods v Jones [1982] IRLR 439, and Post Office v Foley [2000] IRLR 827 is that:-

· The tribunal must consider whether the respondent’s decision to dismiss the claimant fell within the band of reasonable responses to the claimant’s conduct which a reasonable employer could adopt.

· In considering this question, the tribunal must not approach the issue of reasonableness or unreasonableness of the dismissal by reference to what members of the tribunal might have done had they been the employer. The issue for the tribunal to determine is whether the respondent’s decision to dismiss fell within the band of reasonable responses to the claimant’s conduct which a reasonable employer could adopt.

24. The process of considering whether a dismissal is fair or unfair must always be conducted by reference to the objective standards of the hypothetical reasonable employer and not by reference to the tribunal’s own subjective views of what it would in fact have done as an employer in the same circumstances.

Conclusion

25. In his claim form the claimant states that the remedy he seeks is to have the, “category of dismissal changed from Gross Misconduct to something mutual that allows me to confidently seek employment now that I have found myself in this situation”. In fact the tribunal has no jurisdiction to compel the respondent to alter its reason for dismissal. The issue for the tribunal is whether or not the dismissal of the claimant was fair.

26. The question is not whether the tribunal would have terminated the claimant’s contract of employment in similar circumstances. The tribunal has to decide whether the respondent’s decision to dismiss fell within the band of reasonable responses to the claimant’s conduct in the light of the provisions of Part XI of the ERO.

27. The tribunal has considered with care all the evidence and submissions placed before it. In all the circumstances the tribunal dismisses the claim for unfair dismissal.

28. An essential element of the service offered to the respondent’s clients is that their vehicle will be kept in a safe and secure environment. This was known to the claimant and is reflected in the examples of gross misconduct set out in the employee handbook. It was a vital part of the claimant’s duties that he should take care when driving customer’s vehicles in the car park. Failure to take care when driving a customer’s car could result not only in the respondent having to meet a substantial bill for repairs, it could also result in significant damage to the respondent’s reputation in the marketplace.

29. It was a genuine accident which caused the damage to the car, but it was an accident caused by serious carelessness on the claimant’s part. The explanation offered by the claimant to the respondent did not offer any other interpretation. There was no other vehicle in the car park at the time of the accident. If the claimant had stopped to clear the windscreen rather than leaning across while the vehicle was moving the accident would not have occurred. The claimant would not have imagined the need to swerve to avoid a non-existent car.

30. The tribunal is satisfied that the decision to dismiss the claimant fell within the proper range of responses which was available to the respondent. It might well be that another employer might have taken a more benign view but unfortunately for the claimant that is not the test that the tribunal must apply.

31. In reaching this finding the tribunal notes its dissatisfaction with aspects of the record keeping and investigation of the respondent. No investigation log was kept, and nor did the investigator speak to the claimant prior to the disciplinary meeting. Nonetheless the tribunal is clear in its decision. The claim for unfair dismissal is dismissed.

Chairman:

Date and place of hearing: 22 March 2011 and 30 March 2011, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Baird v McCausland Airport Garage Limi... [2011] NIIT 02757_10IT (01 June 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02757_10IT.html Cite as: [2011] NIIT 02757_10IT, [2011] NIIT 2757_10IT

Industrial Tribunals Northern Ireland Decisions