THE INDUSTRIAL TRIBUNALS

CASE REF:  00456/08

CLAIMANT:			Mark Dowson

RESPONDENT:		NCP Services Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The tribunal reduces the compensatory award by 25% on the ground of the claimant’s contributory fault and therefore awards him the sum of £7,086.29.

Constitution of Tribunal:
Chairman:		Mr S A Crothers
Members:		Mr J Devlin
			Mr U Adair

Appearances:
The claimant was present and represented himself.  However on 18 December 2008, he was represented by Mr G Black, Solicitor of Cooper Wilkinson Solicitors.
The respondent was represented by Mr M Lambe, of Collinson Grant Ltd.

THE CLAIM

 1.	The claimant claimed that he had been unfairly dismissed by the respondent for gross misconduct.  The respondent denied the claimant’s claim and contended that the dismissal was fair.  

THE ISSUE

 2.	The issue before the tribunal, as agreed by the parties was as follows:-

		Whether the claimant was unfairly dismissed by the respondent.

SOURCES OF EVIDENCE

 3.	The tribunal heard evidence from Mr M Shepherd, Area Manager for the respondent who conducted the disciplinary hearing and from Miss Pollock, Assistant Human Resources Manager who attended the appeal hearing.  The tribunal also heard evidence from the claimant and received agreed documentation.  

FINDINGS OF FACT

 4.	Having carefully considered the evidence insofar as same was relevant to the issue before it, the tribunal found the following facts proven on the balance of probabilities:-

	(i)	The claimant was employed by the respondent from 12 June 2006 until his effective date of termination on 18 December 2007.  The respondent was responsible for a car pound in Omagh from which it operated a system of clamping and removing motor vehicles, as required, from the public highway and transporting them to the pound.  In the course of its operation, the respondent employed Enforcement Officers together with HGV drivers.  Initially the claimant was employed as an Enforcement Officer and dealt with the documentation relating to clamping operations.  He was promoted in September 2006 to the position of Pound Manager.  The tribunal was furnished with a copy of unsigned contractual documentation bearing the date of 18 September 2006.  Attached to that documentation was a role profile for a Pound Manager.  The tribunal accepts the claimant’s evidence that he was responsible for printing off this profile documentation in or about August/September 2007.  The documentation does specify the responsibilities of a Pound Manager and such responsibilities were not in dispute.  There is no specific reference, however, in this documentation in relation to the claimant’s responsibility for the use of dolly wheels apparatus.

	(ii)	When vehicles were being removed after being clamped, there was a system whereby one vehicle could be loaded directly on to the flat bed of a lorry and another vehicle could be towed behind.  It was the responsibility of the HGV driver to fit dolly wheels to the back wheels of the vehicle being towed.  The tribunal was shown documentation prepared by the respondent and entitled “Heavy Goods Vehicle (3.5 – 26 tonne) Driver’s Handbook” which was revised in July 2007 and clearly states that:-

		“Dolly wheels must not be used until correct training is given.  Additional training documents can be found on the NCP Fleet Management Website”.

(iii)	The claimant admitted that on occasions and particularly during summer leave, he covered for other employees and was himself involved in fitting dolly wheels to vehicles.

	(iv)	Following an incident, Mr Nankivell, Operations Support Manager for Pound Administration and Procedures, posted a message on the respondent’s intranet entitled ”DOLLEY WHEEL USEAGE – BE WARNED!!!” which stated that:-

		“Any vehicle brought in on the spec lift must have dolley wheels on it whether it is open or not.  Restrictions on us entering vehicles (not necessarily breaking in) have not changed and we cannot leave ourselves exposed in this way.  There is also the aspect of the condition of the vehicle being towed as we cannot know whether wheel bearings, axles etc are safe, whether brakes are seized on and prone to over heat or the condition of the tyres.

	If any part of the towed vehicle is on the road it forms part of the vehicle train which we are responsible for and the drivers are liable to be fined or receive points for”.  

The tribunal accepts the claimant’s evidence that he was in Scotland when this notice was posted on the intranet on 15 May 2007 and that he was unaware of the communication until after the disciplinary process against him had commenced.

	(v)	On 14 November 2007 the claimant was interviewed by Mr Nankivell who enquired as to whether he had permitted vehicles to be transported into the pound without using dolly wheels.  The claimant was shown three CCTV clips which showed vehicles being admitted into the Omagh Pound unsupported by dolly wheels.  The claimant was involved in two of these CCTV clips but when asked about all three decided to make no comment.  He was then suspended pending an investigation into an allegation that he condoned the recovery of cars without the use of the dolly wheels.  The claimant did not take any issue with the investigatory or disciplinary procedures operated by the respondent.  He appeared unaccompanied at a disciplinary hearing on 5 December 2007 before Mr Shepherd.  He was however offered the opportunity of representation at both his disciplinary and appeal hearings.  The claimant complained that he had not been trained in the fitting of the dolly wheel apparatus and stated at the disciplinary hearing that he had not read the internal communication from Mr Nankivell dated 15 May 2007.  He also repeated at both hearings that dolly wheels were fitted on 9 out of 10 removals.  The tribunal accepts his evidence that where a short journey was involved of about one to two miles and where the speed involved was around 20 miles per hour, dolly wheels were not fitted.  

	(vi)	The correspondence dated 28 November 2007 convening the disciplinary meeting states that:-

		“The reason for the disciplinary meeting is in relation to an allegation that you condoned the recovery of cars without the use of the dolly wheel apparatus, which is in breach of the company instructions and procedures.  

		Under the company’s disciplinary procedure, as laid down in the Handbook of Employment, I must inform you that such actions constitute gross misconduct, and should the case be proven, could result in your employment being terminated without notice or payment in lieu of notice”.

		The outcome letter from the disciplinary hearing held on 5 December 2007, signed by Mr Shepherd states as follows:- (following the text literally even though it contains certain errors)

		“At this meeting it was established that you committed an act of gross misconduct when you condoned the recovery of cars without the use of the dolly wheel apparatus, which is a serious breach of the safe recovery procedures and therefore a serious of Health and Safety.

		Having considered the facts carefully and the very serious nature of this offence, I have no alternative but to terminate your employment with the company with immediate effect from 17 December 2007.

		As an act of Gross Misconduct is involved, you will not be entitled to any pay in lieu of notice”.  

	(vii)	The claimant appealed this decision and appeared unaccompanied before Mr Topliss, the National Operations Manager on 24 January 2008 who heard his appeal.  Miss Pollock was responsible for taking notes.  The disciplinary hearing decision was confirmed on appeal.

	(viii)	Although he did receive a Health and Safety Handbook on 1 February 2007 together with a Handbook of Employment the tribunal is satisfied that the claimant was not trained adequately in relation to his responsibilities as Pound Manager with regard to the use of dolly wheels.  The tribunal accepts that he operated a system similar to his predecessor and the fact that an intranet communication was posted on the respondent’s site on 15 May 2007 (which the claimant did not see until the disciplinary process had commenced) cannot make up for the lack of training relating to what the respondent clearly indicates is a very important area of its operations.  Furthermore, the driver involved in the relevant episodes was also disciplined and given a final warning.  The tribunal is not satisfied that HGV drivers were consistently given the necessary training as required by the Handbook referred to previously.  Apart from the intranet communication on 15 May 2007, there was no evidence before the tribunal of clear guidelines being given to the claimant in relation to his responsibility for ensuring that dolly wheels were used.  However, the claimant did not deny that he was aware of the general need to use dolly wheels, and the general practice of using them.

	(ix)	The tribunal also heard evidence from the claimant regarding alleged loss.  This was incomplete and the tribunal had to reconvene the hearing on 18 December 2008 to hear further evidence.  The claimant did not claim any relevant benefits which require recoupment, and the tribunal is satisfied that he did attempt to mitigate his loss following dismissal.  The relevant weekly amount at the effective date of termination was £310.

SUBMISSIONS 

 5.	The tribunal heard issues and submissions from both parties which it carefully considered.

THE LAW

 6.	The tribunal considered the statutory provisions comprised in Articles 127-130 of the Employment Rights (Northern Ireland) Order 1996 together with the provisions in relation to awards and contributory fault as contained in Articles 156 and 157 of the Order.  The tribunal also considered the case of British Home Stores Ltd  v  Burchell [1978] IRLR 379 EAT together with the case of Iceland Frozen Foods Ltd  v  Jones [1982] IRLR 439 EAT, and other relevant authorities.

CONCLUSIONS

 7.	The tribunal, having considered the relevant authorities together with the facts as found and the submissions by the parties concludes as follows:-

	(i)	The tribunal is satisfied that the respondent had an honest belief in the guilt of the claimant in committing an act of misconduct at the material time, that the respondent had in its mind reasonable grounds upon which to sustain that belief and that the respondent at the stage at which it 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, in accordance with the principles set out in the case of British Home Stores Ltd  v  Burchell (supra).  It is also satisfied that the reason for dismissal was misconduct.

	(ii)	The tribunal however is not satisfied that in the particular circumstances of this case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  In this regard, the tribunal also had regard to the lack of training and clear guidance for the claimant in relation to the use of dolly wheels and the fact that the driver concerned was disciplined and received a final warning in the context of a Handbook requirement that there must be prior training before dolly wheels were used.

	(iii)	The tribunal is also satisfied, however, that the claimant should bear some responsibility by way of contributory fault for his dismissal as he was aware of the general need to use dolly wheels and the general practice of using them.  The tribunal has established a percentage of 25% contributory fault which will be attached to the compensatory award only.

(iv)	The tribunal therefore awards the claimant the sum of £7,086.29 made up as follows:-

Basic Award calculated at £310  x  1.5			=       465.00

Compensatory Award from 18 December 2007		=  13,853.00
up to 6/11/08 £301.15  x  46

Minus

Amount of earnings to be deducted up to 6/11/08	=     5,357.94
									       8,495.06

Less 25% for contributory fault (£2,123.77)		=     6,371.29

Loss of statutory rights					=        250.00

			Basic Award, Compensatory Award	TOTAL	=   £7,086.29
			and Loss of statutory rights

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:  4 November 2008 and 18 December 2008, Enniskillen.

Date decision recorded in register and issued to parties: