Duffy v Omagh District Council [2010] NIIT 01631

THE INDUSTRIAL TRIBUNALS

CASE REF: 1631/10

CLAIMANT: Brian Duffy

RESPONDENT: Omagh District Council

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed, and, accordingly his claim is dismissed.

Constitution of Tribunal:

Chairman: Mr Uel A Crothers

Members: Mr William Irwin

Mrs Teresa Madden

Appearances:

The claimant was represented by Mr Wall, Barrister-at-Law, instructed by Logan and Corry Solicitors.

The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by

J Blair Employment Law Solicitors.

The Claim

1. The claimant claimed that he had been unfairly dismissed by the respondent. The respondent denied his allegations in their entirety.

The Issues

2. The issue, as agreed by the parties, was whether the claimant was unfairly dismissed.

Sources of Evidence

3. The tribunal heard evidence on behalf of the respondent from Irene Stewart, Refuse and Fleet Manager, Briege Woods, Human Resources Officer, Kevin O’Gara, Chief Clients Services Officer, Daniel McSorley, Chief Executive, and Frank Sweeney, Head of Arts and Tourism. The claimant also gave evidence together with Francie Pearson on his behalf. The tribunal was presented with an agreed bundle of documentation and took into account only documentation referred to in the course of evidence. The tribunal was also assisted by an agreed chronology which is appended to this decision (“the chronology”).

4. During the hearing, the tribunal referred to the Northern Ireland Court of Appeal Decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – Judgement delivered on 13 October 2009. The tribunal reminded itself of sections of paragraphs 15 and 26 of the Judgement of Morgan LCJ as follows:-

[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”)]

“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and ….. to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgement as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal …

The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”

The tribunal therefore sought to avoid straying into the “forbidden territory” of makings its own determination of the evidence.

Findings of Fact

5. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i) The claimant was employed by the respondent as a refuge collector, lifting bins, from 6 June 1994 until the effective date of termination of his employment on 24 March 2010. His gross weekly wage was £296.20 and his nett weekly wage was £232.19.

(ii) Following an investigation and a disciplinary hearing before Kevin O’Gara (Chief Client Services Officer), Sean Kelly (District Chief Building Control Supervisor) and Barney Heywood (Group Chief Environmental Health Officer), the claimant received a disciplinary outcome letter dated 24 March 2010 which reads as follows:-

“At the disciplinary meeting held on 23 March 2010 the panel have considered your claim of bullying by Mr Brian McGinn. The panel find that the case is not proven and we do not uphold your claim of bullying by Mr Brian McGinn.

The panel have considered the allegations of bullying and harassment made by Mr Brian McGinn against yourself and we find that the case has been proven.

The panel have also agreed that there is evidence that you are in breach of Council’s trust and confidence in your ability to carry out your job by:

· Failure to co-operate and communicate with the driver in operating the controls of the lorry

· Failure to show a willingness to co-operate with the driver in carrying out the duties of your job as Refuse Collector ie lifting bins

· Contributing to the breakdown of working relationships and team spirit and generally creating an atmosphere which is not conducive to a good working relationship.

These offences amount to gross misconduct. The panel considered whether or not your length of service with the Council should be taken into account as a mitigating factor against the normal sanction for gross misconduct. However, as your disciplinary record with the Council is not unblemished we do not find there are any circumstances which would mitigate against dismissal.

Therefore the disciplinary panel concludes that the offences outlined above were committed and we have no alternative but to terminate your employment with Omagh District Council with immediate effect.

You will receive payment in lieu of any outstanding annual leave entitlement.

You have the right to appeal against this disciplinary decision in writing to the Chief Executive within 5 working days of receipt of this letter”.

(iii) On 2 February 2010 the claimant had been working, as a lifter, on a bin collection run with Brian McGinn, the bin lorry driver. When the claimant and Mr McGinn returned to the respondent’s depot they began to complain about each other in the presence of Irene Stewart, the Refuge and Fleet Manager. No formal complaints were made at this stage. However the respondent decided that it would be preferable if the claimant and Mr McGinn did not continue to work together and the claimant was informed on 2 February that he would not return to the lorry with Mr McGinn on that day but that Mr McGinn would complete the bin run. He was also informed that Mr McGinn would not be driving the lorry the following day (Wednesday 3 February 2010) but that the claimant would work on it with another driver. Following contact via Irene Stewart with Kevin O’Gara and John McCullagh (Depot Manager) it was decided that both the claimant and Mr McGinn would go out on the bin run together on 3 February as both wanted to remain on the lorry. The claimant felt that he was being punished by the initial intention of the respondent to remove him from lifting duties and to allow Mr McGinn to resume his driving duties. Both men worked together on Wednesday 3 February 2010. However Mr McGinn was on annual leave from Thursday 4 February until Monday

15 February 2010. During this period Mr McGinn contacted Irene Stewart and made a formal complaint against the claimant on 9 February 2010. A formal investigation conducted by Irene Stewart and Briege Woods, Human Resources Officer, commenced on 15 February 2010. The tribunal is satisfied that it was not until 17 February 2010 during an investigating meeting that the claimant made a formal complaint against Mr McGinn. As appears from the chronology the claimant obtained legal advice. His solicitors wrote to Irene Stewart on 10 March 2010 setting out the claimant’s position at that stage, as follows:-

“Re: Our Client: Mr Brian Duffy

Employment Matter – February 2010

We confirm that we act on behalf of our above named client, Mr Brian Duffy of 56 Glenside, Omagh, Country Tyrone and have been duly authorised to raise this formal grievance on his behalf.

Our client’s grievance is as follows:

1. We are instructed that on or about the 2 February 2010 our client, whilst working, requested his driver to take him back to the Yard so that he could make a complaint to his appropriate line manager regarding the behaviour of Mr Brian McGinn, driver. We are instructed that a complaint was also made to yourself by Mr McGinn and presumably this is being dealt with under the harassment policy. Our client advises that he feels his complaint is not being taken seriously by you and indeed we note from the Harassment Policy that the procedure should be completed within 20 working days of the complaint having being received. Perhaps same could be clarified. We also note that the complainant should have received an acknowledgement within 3 working days. Again we are instructed that no formal acknowledgement has been received by our client.

2. Our client instructs that when he attended with yourself and Briege Woods on or about Wednesday 17 February 2010 he again requested information regarding this complaint made. We are instructed that he was advised by you at this stage, for the avoidance of doubt, that the complaint had not been made formally and therefore had not been looked into. Please explain same. We are instructed that our client made both yourself and Briege Woods aware at this stage that he wished for the matter to be dealt with formally. He further advises that he has been instructed on Thursday 4 March 2010 that to date the matter has “not been looked into”. Our client would wish that the reasons or this are investigated as soon as ever possible and the complaint expedited.

3. Furthermore our client further instructs that just after making his complaint verbally on the 2 February 2010 Mr McGinn was taken in to the office wherein presumably he made a formal complaint under the Harassment Policy against our client. Our client was made aware of this almost immediately following Mr McGinn’s alleged complaint and furthermore informed that he would be “taken off the lorry”. He instructs that he was informed that he would be removed from the lorry immediately and that Mr McGinn would be taken off the following day, being Wednesday the 3 February 2010. We would refer you to the Harassment Policy at 2.0 (4.) entitled “Avoiding Contact Between Complainant and Alleged Harasser Where Necessary”. We note that “Decisions relating to the avoidance of contact between the complainant and the alleged harasser must be made “without prejudice against the (Harasser)”. Presumably you have deemed our client to be the alleged “Harasser” in this case, however clearly severe prejudice has been caused by your actions to him throughout the period of the last months or thereabouts.

4. Our client further instructs that although he was informed on Tuesday

2 February 2010 that Mr McGinn would be removed from the lorry the following day, in fact he was telephoned at approximately 3.30 pm on Tuesday 2 February 2010 and informed that “circumstances had changed” and that Mr McGinn would be remaining on the lorry. We are further instructed that Mr McGinn then had 7 days holiday leave and upon his return our client was again removed from the lorry. It is clear from the Minutes of Mr McGinn’s meeting with his employers that he informed them that he would not work with our client and would not come back to work if Mr Duffy was still on the lorry. Clearly the Management have complied with this threat/request of Mr McGinn’s to the total prejudice of our client.

5. Clearly from the above Mr McGinn is being treated much more favourably and superiorly to our client in that his threats/demands are being complied with by Omagh District Council, yet when our client made a formal complaint same has, on the face of it, been ignored. Furthermore our client feels that he has been victimised and feels that he has been treated most unfairly in the circumstances and throughout the period of the last month or so. Indeed we are instructed that our client requested a copy of the Grievance Procedure on Thursday 4 March 2010 in order to seek advices from ourselves and same was not provided to him. However at Mr McGinn’s interview on 9 February 2010 when he stated that his nephew was a Solicitor and requested a copy of the Grievance Policy BW, (presumably Briege Woods) gave Mr McGinn a copy of the Grievance Policy immediately. This is, in our client’s opinion another example of our client being treated less favourably than whom he would perceive as the harasser in this matter.

6. Our client instructs that he is also most concerned with the fact that a personal injury claim which he has instigated against Omagh District Council through our offices is being discussed with a third party, being Mr McGinn and furthermore it is also, in our opinion, most unfair for servants or agents of Omagh District Council to discuss such incident with our client without Mr Duffy having had the benefit of legal representation at any such meeting. Clearly we appreciate that legal representatives are not entitled to attend employment meetings however a personal injury claim which is currently involved in the due legal process made by Mr Duffy and for which he has sought legal representation should not be discussed either with any third party or with Mr Duffy without the benefit of legal representation. We would also ask you to explain same and confirm to us that no further discussions regarding this will be made at this time.

In all the circumstances and as a consequence of the above action of Omagh District Council, its servants and/or agents our client continues to suffer stress, anxiety and trauma and feels that the actions above and other actions by Omagh District Council constitute victimisation, harassment and generally unfair treatment. We would ask you to invoke the Omagh District Council grievance procedure and deal with the matter accordingly.

At this time we would also ask that you revert to us with an offer of compensation in respect of the above treatment of our client. In the event that these matters are not dealt with satisfactorily or compensation is not forthcoming then our client reserves the right to make application to the Office of Industrial Tribunal and Fair Employment Tribunal.

We await hearing from you as soon as ever possible.

Yours faithfully

LOGAN & CORRY”

(iv) In light of the allegations of Bullying and Harassment made by both the claimant and Mr McGinn the tribunal is satisfied that the respondent acted appropriately, and in accordance with its harassment policy, in separating the claimant and Mr McGinn from working together.

(v) The tribunal was referred to medical evidence regarding the claimant and was satisfied, in accordance with Dr Deehan’s note attached to a report dated

23 July 2010, that he has “a rather aggressive personality”. The tribunal is satisfied that this was demonstrated during an investigatory meeting on

17 February 2010 attended by Briege Woods, Irene Stewart, the claimant, and Francie Pearson and to a greater extent during a conversation between Irene Stewart and the claimant on 26 February 2010 in the context of obtaining a final signed statement from the claimant.

(vi) The claimant was being advised by his solicitors throughout the entire period from the investigatory stage to the ultimate appeal against dismissal and in the further period leading up to the presentation of his claim to the tribunal on
22 June 2010. The tribunal was referred to exchanges of correspondence between the claimant’s solicitors and the respondent and the issues raised therein, including the claimant’s request that further individuals ought to be interviewed during the course of the investigation. During the disciplinary hearing held on 23 March 2010, the claimant presented a letter to the disciplinary panel relating to discussions between Trevor McKeown and David Hall who were also employees of the respondent. Following the disciplinary meeting, the chairman, Kevin O’Gara, interviewed both individuals and took statements which were considered by the disciplinary panel prior to the issue of the disciplinary outcome letter, which was hand delivered to the claimant on 25 March 2010. It was part of the claimant’s case that he ought to have had an opportunity of addressing these additional statements prior to the disciplinary panel’s decision. However the tribunal is satisfied that it was not inappropriate or unreasonable for Mr O’Gara to finalise the Investigation by obtaining such statements in light of the information presented by the claimant to the disciplinary panel, without reverting to the claimant. The tribunal is also satisfied that the respondent carried out as much investigation into the matter as was reasonable in all the circumstances of the case, and that the claimant was afforded a full opportunity to provide an explanation in relation to the allegations made against him. Mr McGinn was also subsequently disciplined for matters not relating to bullying or harassment as the respondent had concluded that he did not have a case to answer in this respect.

(vii) The tribunal was referred to relevant portions of the respondent’s harassment policy and disciplinary procedure and is satisfied that the disciplinary hearing and the subsequent appeal by way of review were carried out in accordance with that procedure.

(viii) The tribunal fully considered the evidence, both documentary and oral, relating to representations made by the claimant before and during the disciplinary hearing and is satisfied that it was appropriate for Mr Kevin O’Gara to remain as a member of the disciplinary hearing panel.

(ix) The tribunal also fully considered the evidence both documentary and oral, relating to further representations made by or on behalf of the claimant before and during the disciplinary and subsequent appeal hearings together with the respondent’s evidence in relation thereto. It carefully considered the judgement of the disciplinary panel as to the weight given by it to the evidence placed before it and the reasoning in its findings leading to the dismissal of the claimant, including its approach to mitigation and the claimant’s previous disciplinary record. The tribunal applied the same test insofar as relevant to the appeal hearing. The tribunal considers it useful to set out the appeal hearing outcome letter to the claimant dated 23 April 2010 as follows:

“APPEAL HEARING

Dear Brian

I refer to your appeal hearing on Monday 12 April 2010. You raised a number of issues with the Appeal Panel which the panel has subsequently investigated and I have set out below the responses of the Appeal Panel to the issues you raised.

You queried if the meeting of the Disciplinary Panel had gone ahead on

15 March and if a decision had been taken in relation to this matter.

The Appeal Panel can confirm that a meeting of the Disciplinary Panel took place on 15 March. The Disciplinary Panel considered your letter at that meeting. The Panel agreed to accede to your request and therefore decided to reconvene on 23 March 2010 and to invite you to attend on that date. The Appeal Panel can confirm that no other decisions were taken by the Disciplinary Panel on 15 March.

At the Appeal Meeting you stated that the statements from Mr Davy Hall and Mr Trevor McKeown had been dated 24 March and that the disciplinary meeting had taken place on 23 March and you queried whether these statements had been considered by the Disciplinary Panel in arriving at their decision.

The Appeal Panel can confirm that the statements of Mr Hall and Mr McKeown, dated 24 March 2010, were fully considered by all three members of the Disciplinary Panel in arriving at their decision on that date.

You also stated at the appeal that you have not received any feedback on the progress of your claim of harassment and bullying by Mr McGinn.

The Appeal Panel notes that prior to the disciplinary meeting you were informed that your allegations against Mr McGinn would be heard by the Disciplinary Panel. It further notes that at the Disciplinary Meeting of 23 March you were given opportunity to address this matter with the panel. On checking the correspondence the letter of dismissal to you dated 24 March states very clearly that at the disciplinary meeting on 23 March the Disciplinary Panel had considered your claim of bullying and harassment by Mr Brian McGinn and has found that this claim is not proven. You had opportunity to appeal against that decision, which was clearly communicated to you.

You also claimed that you objected to Mr O’Gara being a member of the Disciplinary Panel as you felt that he has been “out to get you” since your time as a union representative at the Depot. The Appeal Panel on checking previous correspondence noted that there was an objection to Mr O’Gara’s involvement but on other grounds. That objection was dealt with. The appeal hearing was the first occasion upon which you raised the issue of bias against you because of your previous role as a trade union representative. You offered no further evidence to substantiate this allegation.

The Appeal Panel notes that it has been several years since you were a trade union representative. Given the lack of any further evidence to substantiate this, including the fact there has been no complaint against Mr O’Gara on this basis in the intervening years, the Appeal Panel rejects your allegation in this regard.

At the appeal hearing Mr Pearson stated that you had mentioned the names of 4 or 5 other drivers who should be interviewed in connection with the investigation into this matter and that these people had not been approached. He did not specifically name the drivers to the Appeal Panel.

The Appeal Panel considered this matter. Firstly, it checked whether you had indeed named at the disciplinary meeting 4 or 5 other drivers whom you wanted interviewed. The Appeal Panel is satisfied that you did not. You only asked the Disciplinary Panel to speak with D Hall, which in fact was done. The Appeal Panel checked to see who had been interviewed.

The Appeal Panel has confirmed that prior to the date of this incident on

2 February you had worked on the lorry with three drivers, all of whom have been interviewed as part of this process. The Appeal Panel is satisfied that it was appropriate to interview only those drivers with whom you had worked prior to the incident.

After careful consideration of the information provided by you to the Appeal panel, and the information already in our possession, the Appeal Panel is satisfied that you:

· Did subject Mr Brian McGinn to bullying and harassment over a sustained period of time by periods of silence, shouting, displaying confrontational behaviour and constant references to falling, all of which produced clear evidence of stress to Mr McGinn.

· Are in breach of the Council’s trust and confidence in your ability to carry out your job by:

i. Failure to co-operate and communicate with your driver in operating the controls of the lorry ie the rake and hopper.

ii. Failure to show a willingness to co-operate with the driver in carrying out your job as Refuse Collector by not lifting bins and assisting in adverse weather conditions.

iii. Contributing to the breakdown of working relationships and team spirit and generally creating an atmosphere which is not conducive to a good working relationship over a period of time ie periods of silence, shouting and confrontational behaviour regarding routes, slippery roads and constant references to falling.

On reviewing the evidence in this matter and considering your grounds of appeal, the Appeal Panel agrees with the findings of the Disciplinary Panel and also agrees that your conduct was of such a nature that it justified dismissal. The Appeal Panel therefore upholds the decision of the Disciplinary Panel to terminate your employment with the Council.

Yours sincerely

D McSORLEY

Chief Executive”

The Appeal Panel was comprised of Daniel McSorley, Chief Executive, Rosemary Rafferty, Head of Human Resources, and Frank Sweeney, Head of Arts and Tourism.

(x) The tribunal considered the claimant’s evidence in relation to his preferred remedy of reinstatement together with the respondent’s evidence in relation to same, and with the Schedule of Loss prepared on behalf of the claimant in the event that the tribunal would ultimately consider the remedy of compensation only. The tribunal explained the remedies available to a claimant and referred the parties to Article 146ff of the Order. The claimant chose not to address the alternative remedy of re-engagement in his evidence.

The Law

6. (ii) The law in relation to unfair dismissal is set out in Rogan as follows:-

“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.

“130.― (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 principal reason) for the dismissal, and

(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—

…. (b) relates to the conduct of the employee,

(4) Where the employer has fulfilled the requirements of paragraph (1), 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."

Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.

[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ”.

“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.

[49] The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –

‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-

(1) the starting point should always be the words of section 57(3) themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’

[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -

‘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 (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 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. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”

(2) At paragraph 26 of Rogan, Morgan LCJ states as follows:-

“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.

Again at paragraph 27 of his judgment, Morgan LCJ states:-

“In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.

In paragraph 28 he continues:-

“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence. None of this is an indicator of a lack of reasonable investigation”.

Girvan LJ in paragraph 7 of his judgement states as follows:-

“The investigation was one which was reasonable in the circumstances. It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”

Submissions

7. The tribunal considered the helpful written submissions made by both parties counsel, together with the further oral submissions made on 10th day of
February 2010. Copies of the written submissions are attached to this decision.

Conclusions

8. The tribunal, having carefully considered the evidence together with the submissions from the parties’ representatives, and having applied the principles of law to the findings of fact concludes as follows:-

(i) The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-

(1) Was the dismissal of the claimant by the

respondent fair in all the circumstances? In

determining this primary issue the Tribunal should consider the following:

(a) Has the respondent shown that the reason relied

upon by it in its decision to dismiss the

claimant is related to the claimant’s conduct?

(b) Had the respondent a reasonable suspicion

amounting to a belief in the guilt of the

employee of that misconduct at the time of

its decision?

(i) Had the respondent reasonable grounds

at the time of its decision on which to

sustain its belief in the misconduct

of the claimant?

(ii) At the stage the respondent took the

decision to dismiss, had the respondent

carried out as much of an investigation/enquiry into the

matter as was reasonable in all the circumstances?

(c) Was the dismissal a fair sanction in the

circumstances?

(d) Was the claimant afforded an effective right of

appeal in the circumstances?

(ii) The tribunal answers the questions in the affirmative and the claimant’s claim is accordingly dismissed.

Chairman:

Date and place of hearing: 18, 19, 20, 21 January and 10 February 2011, Omagh.

Date decision recorded in register and issued to parties:

IN THE OFFICE OF INDUSTRIAL TRIBUNALS AND
THE FAIR EMPLOYMENT TRIBUNAL

CASE REF NO: 1631/10it

BRIAN DUFFY
—V-
OMAGH DISTRICT COUNCIL

CHRONOLOGY

Date Event Page No.

2/2/10              I Stewart discussion with B McGinn no.1                                                        109
2/2/10              I Stewart discussion with B Duffy no.1                                                                       112
2/2/10              I Stewart discussion with B McGinn no.2                                                        110
2/2/10              I Stewart discussion with B Duffy no.2                                                                       114
2/2/10              I Stewart discussion with B McGinn no.3                                                        111
2/2/10              I Stewart discussion with G Broderick and P Kelly                                          180
2/2/10              I Stewart discussion with T McKeown                                                                         161

3/2/10 I Stewart notes of conversation with B Dully 116

5/2/10 B McGinn tel call to I Stewart 122

9/2/10 I Stewart & B Woods meeting with B McGinn 206—209

11/2/10 B McGinn tel call to I Stewart 122

12/2/10 B McGinn tel call to I Stewart 123
12/2/10 B Woods notes of conversation with B Duffy 125

15/2/10 I Stewart letter to B Dully 126

17/2/10            I Stewart & B Woods meeting with B Dully                                                     127— 132
17/2/10            B Duffy’s Typed statement                                                                             215 —218
17/2/10            B Duffy’s Handwritten statement                                                                    210 —214

18/2/10 I Stewart & B Woods statement from T McKeown 220 – 221

24/2/10 I Stewart & B Woods statement from Dermot Mimnagh 222
24/2/10 I Stewart & B Woods statement from Ricardo Aragunde 223

26/2/10            I Stewart conversation with B Duffy                                                               117
26/2/10            B Woods note of conversation I Stewart & B Dully                                        133
26/2/10            Additional Statement from B Duffy                                                                224 - 226
2/3/10              I Stewart letter to B McGinn                                                                            134

Page 1 of 3

Date Event Page No.

3/3/10              I Stewart conversation with B Duffy                                                               117
4/3/10              I Stewart conversation with B Duffy                                                               118
5/3/10              I Stewart conversation with B McGinn (dropping off letter)                            123
5/3/10              I Stewart & B Woods meeting with BMcGinn & R Anthony                           135 – 141

10/3/10 B Duffy’s Solicitor’s letter to I Stewart 144— 146

11/3/10 Meeting of Disciplinary Panel
11/3/10 K O’Gara’s letter to B McGinn 143

12/3/10            K O’Gara’s letter to B Duffy                                                                           147— 148
12/3/10            K O’Gara’s letter to B Duffy’s Solicitors                                                         149
12/3/10            I Stewart discussion with B Duffy (dropping off letter)                                               119
12/3/10            I Stewart discussion with B McGinn                                                                123

15/3/10 B Duffy’s Solicitor’s letter to K O’Gara 150— 151
15/3/10 File note of Disciplinary Panel’s meeting 152

16/3/10 K O’Gara’s letter to B Duffy 153
16/3/10 I Stewart conversation with B McGinn 154

18/3/10 K O’Gara’s letter to B Duffy’s Solicitors 155- 156

22/3/10 B Duffy’s Solicitor’s letter to K O’Gara 157— 158

23/3/10            K O’Gara’s letter to B Duffy’s Solicitors                                                         159
23/3/10            R Rafferty’s letter to B Duffy’s Solicitors                                                       160
23/3/10            Notes of Disciplinary Hearing                                                                                     90—93
23/3/10            Disciplinary Panel’s Summary Considerations                                                             94—96
23/3/10            D Hall’s Handwritten statement                                                                                   162

24/3/10            K O’Gara meeting with D Hall                                                                                     165
24/3/10            K O’Gara meeting with T McKeown                                                               166
24/3/10            Disciplinary Panel file note                                                                              163
24/3/10            K O’Gara letter of dismissal to B Duffy                                                                      164

26/3/10 B Duffy’s Solicitor’s letter to D McSorley to appeal 167

29/3/10 D McSorley’s letter to B Duffy 168
29/3/10 B Duffy’s Solicitor’s letter to D McSorley 169— 170

Page 2 of 3

Date Event Page No.

31/3/10 D McSorley’s letter to B Duffy 171 -173
3 1/3/10 B Duffy’s Solicitor’s letter to D McSorley 183 -184

1/4/10 R Rafferty’s letter to B Duffy’s Solicitors 181 -182
1/4/10 R Rafferty’s letter to B Duffy 185- 186

8/4/10 B Duffy’s Solicitor’s letter to D McSorley 192 -193

9/4/10 R Rafferty’s letter to B Duffy’s Solicitors 198

12/4/10 Notes of Disciplinary Appeal Meeting 98— 100

16/4/10 D McSorley’s letter to B Duffy 201

12— 23/4/10 Appeal Panel’s deliberations 101 -108

23/4/10 D McSorley’s letter to B Duffy letter of outcome of appeal 202 —203

27/4/10 B Duffy’s Solicitor’s letter to D McSorley 204

19/5/10 D McSorley’s letter to B Duffy’s Solicitors 205

Page 3 of 3

IN THE OFFICE OF INDUSTRIAL TRIBUNALS & THE FAIR
EMPLOYMENT TRIBUNAL

Case Ref No: 1631/10 IT

Between:

Brian Duffy

Claimant

-and-

Omagh District Council

Respondent

________________________________________________________________________________

LEGAL SUBMISSIONS

Introduction

The Claimant worked for Omagh District Council as a refuse collector from the
6th July 1994 until his effective date of termination, the 24th of March 2010. The
Claimant earned £296.20 per week gross, and £232.19 per week net.

The Claimant was dismissed following an investigation into allegations he was bullying and harassing a fellow employee of the Respondent. This investigation resulted in a Disciplinary Hearing in which allegations of bullying and harassment of the aforesaid employee and a number of other additional allegations were put to the Claimant. The Claimant was subsequently dismissed for gross misconduct, the Panel members of the Hearing being unanimous in their opinion the Claimant was guilty of these allegations. This decision was appealed and the appeal was dismissed.

The Law

An employee has the right not to be unfairly dismissed bit virtue of Article 126 Employment (NI) Order 1996.

Under Article 130(1) 1996 Order it is for an employer to show the reason for the dismissal and that it was a reason which fell within Article 130(2) 1996 Order.

“Apart from those cases where a dismissal is automatically fair or automatically unfair, establishing a prima facie fair reason for dismissal, ie one which is capable of rendering the dismissal fair, is only the first stage in defending an unfair dismissal claim. In addition, under Article 130(4) the tribunal must be satisfied that the employer has acted reasonably in all the circumstances in treating the reason as sufficient. Whereas the onus is on the employer to establish that there is a fair reason, the onus in this second stage in cast in ostensibly neutral terms. Accordingly the tribunal must make up its mind whether Article 130(4) is satisfied in the light of all the information before it.”

- Harvey on Industrial Relations and Employment Law, Issue 204, DI651 at paragraph 951

According to Article 130(4) 1996 Order:

“Where the employer has fulfilled the requirements of paragraph (1), the
determination of the question whether the dismissal is fair or unfair (having

regard to the reason shown by the employer) –

—
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

shall be determined in accordance with equity and the substantial merits of the case”

In Iceland Frozen Foods v Jones [1982] ICR 17 Browne-Wilkinson offered the following guidance:

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [s 130(4) of the 1996 Act] is as follows:

(1) the starting point should always be the words of [s 130(4)] themselves;

(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

Misconduct

The Respondent submits that the Claimant was dismissed for misconduct as per Article 130(2)(b) 1996 Order.

In Rogan v South Eastern Health and Social Care Trust (2009) NICA 47, Morgan LCJ stated:

The issue as to what if any conduct constituted the reason for dismissal was clearly a matter on which the belief of the disciplinary panel was the critical issue and the agreed and correct legal position of the parties was that having established the belief of the disciplinary panel the tribunal should not rehear the allegations but should consider whether the employer acted reasonably having regard to the material available to it and the investigation carried out by it.

In cases where the employee was dismissed for misconduct which is disputed,

“The employer is unlikely to be acting reasonably if his belief that the employee has committed misconduct is unsupported by any objective evidence”

- Harvey’s at paragraph 1463

Factors which must be considered when applying Article 130(4) 1996 Order:

i) The size and administrative resources of the employer’s undertaking

Tribunals are expressly required by virtue of the Employment Rights (Northern Ireland) Order 1996, when considering all the circumstances of the case, to take into account the size and administrative resources of the employer’s undertaking.

ii) Consistency

“Another factor relevant to the concept of reasonableness is consistency. As we have seen, inconsistent statements by the employer may make it more difficult for him to establish the reason for the dismissal (para [844] ff above). But in addition, inconsistent behaviour may render the dismissal unfair.

Generally the inconsistent behaviour will arise in one of two ways. First, the employer may treat employees in a similar position differently. Second, he may in relation to a particular employee have treated certain conduct leniently in the past and then suddenly treated it as a dismissible offence without any warning of this change in attitude. Both forms of inconsistency may render a dismissal unfair.”

- Harvey on Industrial Relations and Employment Law, Issue 204, DI-651 at paragraphs 1036-1037

An example of the first kind of inconsistency is found in the Court of Appeal decision in Post Office v Fennell [1981] IRLR 221. Emphasis was placed on the word ‘Equity’ in s 98(4) [Article 130(4)], Brandon LJ commenting that:

“It seems to me that the expression equity as there used comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an industrial tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal.”

iii) Reasonable Investigation

As regards the question of the investigation a good starting point is the three stage test set out by the EAT in British Home Stores Ltd v Burchell [1978] IRLR 379, approved by the Court of Appeal in HSBC Bank plc (formerly Midland Bank plc) v Madden [2000] IRLR 827. The test is as follows:

“(a) first, the employer must establish that he or she believed that the employee was guilty of misconduct;

(b) second, the employer must show that he or she had reasonable grounds for so

believing, and

(c) third, the employer must show that at the time he or she held that belief he or she had carried out as much investigation as was reasonable

“The investigative process is important for three reasons in particular

• it enables the employer to discover the relevant facts to enable him to reach a decision as to whether or not an offence has been committed,
• if properly conducted, it secures fairness to the employee by providing him with an opportunity to respond to the allegations made, and
• even if misconduct is established, it provides an opportunity for any factors to be put forward which might mitigate the offence, and affect the
appropriate sanction

- Harvey’s at paragraph 1482

Submissions

It is the Claimant’s submission that the Respondent did not carry out a reasonable investigation or a reasonable hearing of his case.

Investigation

Mr Duffy gave evidence that he approached Irene Stewart who was the investigating officer for the purposes of the ensuing investigation. Mr Duffy had approached Mrs Stewart on the 2nd February 2010 in order to make a complaint against a colleague, Mr McGinn, to the effect he was being bullied and harassed by Mr McGinn. Mr Duffy gave further evidence that he considered he was giving a formal statement and made reference to consulting his solicitors on this date to Mrs Stewart. Mrs Stewart in her evidence accepted she was a “designated officer” for the purposes of the Respondent’s Harassment Policy. She accepted under that policy she should have established that it was the clear wish of the employee to take an informal approach or not. Mrs Briege Woods, a member of HR, stated that Mrs Stewart was wrong in considering herself a “designated officer” for these purposes.

As a result Mr Duffy’s complaint was not treated formally and he only became aware of this on the 12th February when he was informed by Mrs Stewart and Mrs Briege Woods that Mr McGinn had made a formal complaint against himself. Indeed Mrs Woods stated to Mr Duffy on the 17^th February that his complaint was only now being treated formally and within the wider enquiry into Mr McGinn’s complaints.

The Harassment Policy states, “All complaints of harassment will be dealt with promptly, seriously and confidentially”. It is submitted the fact it took 11 working days for Mr Duffy’s complaint to be treated formally shows it was not treated promptly or seriously.

During an investigatory meeting with Mrs Stewart and Mrs Woods on the 17^th February where Mr Duffy was accompanied by a work colleague, Mr Francie

Pearson. Mr Duffy gave evidence he requested Mrs Stewart take statements from three drivers, Mr Kieran Maguire, Mr David Hall and Mr Eugene Sheridan. He gave further evidence that he worked alongside the latter two men on a number of occasions prior to the 2 of February. In a prepared statement which Mr Duffy brought to this meeting stated that Mr Maguire and Mr Hall told him they had been questioned by Mrs Stewart on how they ‘got on’ working with Mr Duffy. Mrs Stewart stated that she did not take statements from any of these people. It is submitted that Mrs Stewart failed to interview a number of people whom Mr Duffy had previously worked with. Additionally Mrs Stewart did not record comments made by people whom she did speak to. These failures to conduct as thorough an investigation as the Respondent could reasonably have been expected to do in the circumstances calls into question the fairness of the whole proceedings.

On the 26th February Mr Duffy came to Mrs Stewart to sign his statement of the 17th. During this, Mr Duffy noticed a number of inaccuracies, made by the note- taker on that day, Mrs Briege Woods. Mr Duffy wished to correct these matters. Mrs Stewart left the room and contacted Mrs Woods who then attended. At this stage Mr Duffy requested that they wait until Mr Pearson arrived to sit in while Mr Duffy went through the statement. Mrs Woods stated this was not necessary and that she would leave, which she did. Mr Duffy went through the statement and made his corrections. Before Mr Duffy left Mrs Woods returned and by her evidence told him that this time spent with Mrs Irene Stewart would be treated as a new additional statement. In cross-examination Mrs Woods accepted she did not make him aware before the end that this would be treated as an additional statement. It is submitted this is a breach of Respondent’s Harassment Policy as this was treated as an additional statement to the investigatory meeting and

under said Policy the alleged harasser has the right to be accompanied by a work colleague at an investigatory meeting and this was denied to Mr Duffy by failure to inform him that he was making an additional statement.

On page 94 of the Trial Bundle it reads, “Although Briege Woods acknowledged to Brian Duffy on 17th February that she would accept his complaint as formal, there was still no substance provided to allow investigation of that complaint”. This is a note made by the Disciplinary Panel. There appears to be no disclosed material where this reference is made. Either the Panel has erred or there are notes/statements which were withheld from Mr Duffy and the Tribunal. This was 11 working days after Mr Duffy made his complaint which he thought was on a formal basis.

Decision as to Charges

At the end of the investigatory period Mrs Stewart in evidence stated that she and Mrs Woods did not make any findings in relation to the investigation. Mrs Woods passed the information on. Mr McSorley, Chief Executive of the Respondent and a member of the Appeals Panel, later stated in his cross- examination that Mrs Stewart determined there was a case to answer to the allegations against Mr Duffy and stated this in a letter to the Claimant’s solicitor at page 172 of the Trial Bundle. This confusing state of affairs was not helped by Mr Kevin O’Gara, the Head of Mr Duffy’s Department and Chairman of the Disciplinary Panel, who remarked in direct examination that as regards the allegations against Mr Duffy that “enough information there that [there was a] case to answer” and that the Panel had made the decisions as to who got charged with what. It is submitted that the fairness of the procedure is cast in doubt if it

is not clear who are making what decisions.

On his evidence, Mr O’Gara received the statements from the formal investigation and a meeting took place on the 11^th March of Disciplinary Panel. The other members were Mr Heywood and Mr Kelly. The purpose of this meeting appears to have been to consider all the statements in relation to the allegation of bullying/harassment by Mr Duffy on Mr McGinn and vice versa. This was accepted as an important part of the process by Mr Sweeney (Member of the Appeals Panel). Mr O’Gara agreed in cross examination that Mr McGinn freely admitted to instances of making abusive comments towards Mr Duffy. He stated that whilst these were “unacceptable” they were not enough to substantiate a case of bullying. Thus Mr McGinn did not face a disciplinary hearing on charges in relation to bullying or harassment. Mr O’Gara also agreed that Mr Duffy did not make any admissions in relation to allegations made against him. When it was put to Mr O’Gara in cross examination that there was no objective or third party evidence in relation to the allegations of bullying by either party he became evasive and made vague comments to the effect that the totality of evidence was sufficient information to charge Mr Duffy. It is submitted Mr O’Gara did not give a reasonable explanation as to why the two parties were treated so differently. Mr Duffy also faced another charge of contributing to a breakdown of working relationships and team spirit. Mr McGinn did not have to face this charge either despite Mr Duffy’s allegations. It is submitted that by failure to bring this other charge against Mr McGinn it exemplifies the inconsistent treatment of the two men. Mr O’Gara confirmed there was no note taker at this meeting and stated nobody suggested notes should be taken.

Mr Sweeney later stated that Omagh District Council had over 300 employees and when he was asked whether the Appeals Panel had any concerns over why there was no note take of this important decision in such a serious matter he stated that this issue was not considered by the Appeals Panel. When asked could a note taker have been drafted in for the 11th he stated not all the 300 plus employees have clerical skills. This meeting was carried out in a very clandestine fashion and it is difficult to comprehend why there was not a note taker for it.

Mr Sweeney stated that there were very few facts amongst the statements. It is submitted there were no objective facts or independent evidence in relation to the allegations of bullying made by Mr McGinn. There were no witnesses to any of the bullying or harassment he alleged and so the decision to summon Mr Duffy to a disciplinary hearing on charges of bullying and harassment is unfair in that he was treated inconsistently in comparison to Mr McGinn given the two were in almost identical positions.

Mrs Stewart, Investigation Officer, gave her opinion that both parties had a case to answer as regards the allegations of bullying and harassment. Mr Sweeney stated that the Appeals Panel considered the issue of the disparity in the treatment of the two individuals. He stated the Appeals Panel thought it “very strange” that no charges of bullying were brought against Mr McGinn for his alleged treatment of Mr Duffy. He stated that whilst the Appeals Panel was a review of the whole process this element was outside of their remit. Mr Pearson, giving evidence on behalf of Mr Duffy, said that the men in the workplace did not think the two men had been treated equally.

This decision of the 11th March was clearly a crucial one in the disciplinary

process. It is submitted this meeting should have been accompanied by a contemporaneous note to show the reasoning behind the decisions to treat the men differently. It is submitted Mr O’Gara failed to give a satisfactory reason as to why Mr Duffy was charged with bullying and that having acknowledged “unacceptable” behaviour by Mr McGinn towards Mr Duffy, failed to charge the former with bullying and harassment or even the other charge of contributing to the breakdown of working relationships and trust. It is submitted the procedure was unfair due to the inconsistencies in the treatment of the two men which were not adequately explained at any stage.

Mr O’Gara’s inclusion on the Disciplinary Panel

Mr O’Gara then wrote a letter dated the 12th March outlining the charges against Mr Duffy. This letter began:

Following the recent investigation into allegations that you subjected Mr Brian McGinn to bullying and harassment I find that the allegation has been substantiated and you have a case to answer.

It was put to Mr O’Gara that having used the phrase, “I find that the allegation has been substantiated” showed he had already made his determination on the matter without hearing from Mr Duffy. He denied this. Mr Duffy indicated in his direct examination he was concerned by this letter as he felt Mr O’Gara had already made his mind up. Mr O’Gara in his direct examination stated that the Disciplinary Panel following the Hearing “felt evidence substantiated charges against Brian Duffy”. It is submitted Mr O’Gara’s use of the word “substantiated” when describing the Disciplinary Panel finding against Mr Duffy

gives us insight into what he meant when he wrote the allegation has been substantiated in the letter and that he had made his mind up at that early stage.

Mr Duffy’s solicitors wrote to Mr O’Cara outlining these concerns about his remaining on the panel when it appeared he had come to a conclusion on the matter already. Mr McSorley later informed Mr Duffy’s solicitors that the Disciplinary Panel, of which Mr O’Gara was the Chairman, made the decision that Mr Q’Gara should remain on it. A file note of the 15^th March, at page 152 of the Trial Bundle, refers to the Panel finding these concerns were “found less”. Mr O’Gara could not explain why his was the only signature on this file note. It is submitted there is no proof all three Panel members discussed this matter and came to the stated conclusion. The Appeals Panel did not discuss the objections to Mr O’Gara on this particular ground. It is submitted it should have been reviewed by the Appeals Panel given it was a serious and apparent issue during the process.

It is submitted Mr Q’Gara’s refusal to recuse himself from the Panel was a breach of natural justice as it is submitted he had predetermined the matter before hearing from Mr Duffy at the Disciplinary Hearing.

Disciplinary Hearing

Mr Duffy attended the Disciplinary Hearing on the 15th March with Mr Pearson. Mr Duffy stated that he asked the Panel to speak to Mr Davy Hall, Mr Eugene Sheridan and Mr Kieran Maguire. Mr Pearson supported this. Mr Duffy had brought a short note, written and signed by Mr Hall. Mr O’Gara subsequently spoke to Mr Hall and a Mr Trevor McKeown and took statements on the 24^th

from them. He did not speak to the other men requested. These statements were then discussed by the Panel before their decision was made. Mr O’Gara confirmed they did not reconvene the Hearing with Mr Duffy to allow him to challenge or discuss these statements. These statements were detrimental to Mr Duffy’s case. Additionally Mr Sheridan and Mr Maguire were not spoken as requested by Mr Duffy. It is submitted this is manifestly unfair and brings the Hearing into disrepute.
On page 95 of the Trial Bundle the notes assert that whilst Mr Duffy’s previous personal injury claim was volunteered by interviewees in the investigatory process they were not pursued or encouraged by those conducting the interviews. Mrs Stewart was cross examined on this issue and conceded she did ask Mr McGinn to elaborate on a comment he made in his investigatory meeting. It is submitted this comment was clearly in reference to Mr Duffy’s personal injury claim, which he had mentioned on a number of occasions before. Mrs Stewart took a note of what Mr McGinn said about this and this was before the panel along with other references to his claim. It is submitted this material was prejudicial to Mr Duffy’s Hearing and the investigation process should not have been used to illicit such facts.

It is submitted that the notes taken in relation to this Disciplinary Hearing are poor and do not indicate the Panel’s findings on specific issues. For instance on page 96 of the Bundle at point 3b the finding of the panel on the issue of “Breaching Trust and Confidence” is made in one sentence. The Panel does not even make any other notes to explain how these findings were made.

Charges:

It was difficult to uncover what alleged misconduct fell under which heading given the notes from the Hearing are so lacking in substance and the charges were drafted in such wide terms.

A) Allegations of Bullying and Harassing Mr McGinn

Mr O’Gara was cross examined on the reasonablenes of the Panel’s finding that Mr Duffy bullied Mr McGinn and Mr McGinn didn’t bully Mr Duffy. Mr O’Gara was questioned on the fact there was no objective or third party evidence to support either proposition but that Mr McGinn had admitted making abusive and threatening comments to Mr Duffy. It is submitted Mr O’Gara was evasive and did not explain the reasoning behind this satisfactorily and that the notes of the Hearing do not explain this reasoning either. It is submitted the Panel unreasonably held the belief that Mr Duffy bullied or harassed Mr McGinn given the lack of evidence in this regard.

B) Failure to Co-operate and Communicate with the driver in operating the controls of the lorry

This charge seemed to be based on a single incident where Mr McGinn and Mr Duffy were working and some of the apparatus at the back of the lorry wasn’t working. Mr McGinn’s statements give conflicting accounts of this incident. Mr Duffy maintained, under cross-examination, that he kept Mr McGinn informed of whether the apparatus was working and explained this enabled the two parties to get back in the vehicle and travel on. It is submitted there is no objective evidence to support this charge.

C) Failure to show a willingness to co-operate with the driver in carrying out the duties of Refuse Collector ie lifting bins

Not even Mr McGinn alleges Mr Duffy refused to lift a bin. There is no other objective evidence to support this charge either. There was an incident whereby Mr McGinn stated he asked Mr Duffy to lift a bin from across a road which Mr McGinn then did. Mr Duffy indicated he never refused to lift this bin but always maintained he would pick it up once they had gone to the top of the road and turned and travelled back down on the basis it would be safer not to have to cross the entirety of the road carrying a bin.
Mrs Stewart, in her evidence recalled how, accompanied by a Mr Sinamon, she had travelled along Mr Duffy’s route and concluded that he “had done nothing wrong” and had followed policy in this regard. The Panel need only have asked her, as Mr Duffy’s line manager, if there was any issue here. It is submitted the Panel could not have reasonably held the belief that this charge was proven based on the lack of evidence before it.

D) Contributing to the breakdown of working relationships and team spirit and generally creating an atmosphere which is not conducive to a good working relationship

The Panel had before it; statements of Mr McGinn, Mr McKeown, Mr Aragunde,
Mr Mimnagh, Mr Hall and notes by Irene Stewart and Briege Woods. Mr
McGinn gave a negative account of working with Mr Puffy but it must be noted
Mr Duffy was making a complaint of harassment and bullying against him. Mr

McKeown apparently was also negative in his opinion of working with Mr Duffy. However Mr Hall’s statement of the 23”’ of March, at page 162 of the Trial Bundle, shows Mr McKeown approached Mr Hall with a view to changing the routes they would drive on a particular day, with the effect Mr McKeown would work with Mr Duffy. It is submitted Mr McKeown’s comments about difficulties, working with Mr Duffy, are unreliable given he was on at least one occasion actively attempting to work with him. Further, one of the statements from Mr McKeown, taken after the Disciplinary Hearing, contained additional material which Mr O’Gara admitted Mr Duffy had not been given a chance to challenge.

Mr Aragunde and Mr Mimnagh expressed no problems working with Mr Duffy. Mr Robert Anthony, who accompanied Mr McCinn to his investigatory meeting, espoused a negative view of Mr Duffy. He never made a signed statement in this process.

Mrs Stewart and Mrs Woods stated in their evidence that they were at times intimidated by Mr Duffy and that he shouted at them. Mr Duffy indicated in his evidence he did not feel that he was being intimidating, that he never shouted at them but has a loud voice and that he apologised at one meeting if they thought he was shouting. Mr Pearson supported what Mr Duffy had said. Mrs Stewart and Mrs Woods confirmed on cross-examination that they did not make any complaints regarding Mr Duffy’s behaviour during the investigatory period.

Mr Duffy told the Tribunal how he had repeatedly asked for Mr Hall, Mr Sheridan and Mr Maguire to be interviewed. This was supported by the evidence of Mr Pearson. Only Mr Hall was interviewed, by Mr O’Gara and only in relation to a specific question. It is submitted if during the investigation stage these

members of staff had been interviewed, on how they felt working with Mr Duffy, they could have provided positive accounts

On page 96 of the Trial Bundle there is a reference to three drivers in the interview records who were said to be concerned that if taking Mr Duffy in their lorry they might be subject to, or involved in, claims that he had been exposed to risk of injury It was highlighted m cross-examination that the notes were again deficient in that these three drivers were not named. Mr O’Gara named Mr McGinn and Mr McKeown as two of them. He thought Robert Anthony may be the other. It is not clear if he remarked that he was preoccupied by these concerns and Mr O’Gara could not indicate where any such remark was made.

It is: submitted there is conflicting evidence in relation to this charge and that the Disciplinary Panel was unclear what weight they attached to which statements and note entries. Further Mr McGinn never faced this charge despite Mr Duffy’s accusations of bullying and harassment by the former. This further displays the inconsistent treatment of the two men and the inherent unfairness in the procedure.

Sanction

During cross-examination Mr O’Gara’s attention was drawn to the fact that in the Disciplinary Procedure Policy of the Respondent there was nothing to indicate how to treat cumulative offences. Also, his attention was drawn to the fact the bullying charges did not in any way resemble any of the gross misconduct offences listed. It was noted that the list was prefaced as not being exhaustive. It was put to Mr O’Gara that abusive and oppressive conduct

towards a fellow employee was covered by the Major Offences category which would result in a lesser sentence of a final warning.

Further the second and third charges, B and C above, are based on specific incidents which, even if proven, it is submitted are not serious enough to warrant instant dismissal. In any event there was no objective evidence to support charges of misconduct.

The fourth charge, D above, is drafted very vaguely and is also of a wholly dissimilar nature to any of the Instant Dismissal Offences.

It is submitted this policy is deficient in that there is no guidance on how to judge cumulative offences and that there was a lack of clarity in where the charge of gross misconduct was found.
Mr O’Gara confirmed that spent warnings were not taken into consideration until the decision on whether there was any mitigation that could reduce the sanction of instant dismissal.

Appeals Hearing

Mr Sweeney was the note taker on the Appeals Panel. He indicated this appeal was a review of the whole process. He also agreed on cross-examination that the Appeals Panel were making judgments on the specific incidents in dispute. He further stated that they were independently assessing whether Mr Duffy was guilty of the alleged charges. He also gave evidence that if they found he wasn’t they could overrule the decision of the Disciplinary Hearing. It is submitted the

Appeals Panel should have then questioned Mr Duffy on the specific incidents
alleged if there were going to potentially make fresh findings on the matter. Mr
Sweeney confirmed that they did not ask any questions and put nothing to Mr
Duffy. Mr Duffy states that he once again asked for Mr Hall, Mr Sheridan and Mr
Maguire to be interviewed.

Mr Sweeney stated they requested route maps, Risk Assessments and photographs in relation to the incident where Mr McGinn crossed a road to lift a bin as a result of Mr Duffy not doing so. These were requested after the Hearing.. Mr Duffy had consistently stated the lorry would return back down that road on the other side and he would have lifted the bin then. None of these additional documents, that the Disciplinary Panel didn’t have, were put to Mr Duffy at the Appeals Hearing. Mr Duffy stated a Risk Assessment is something done at a specific location. Mr Sweeney stated Risk Assessments could not be done at every location. Mr Sweeney conceded that only Mr McGinn and Mr Duffy were present at this incident. It is disappointing the Panel did not reconvene the hearing once this information was gathered to allow comment by Mr Duffy or even to confirm the photographs were of the correct location. It is submitted it is unfair these documents were used in a finding on a specific factual issue and Mr Duffy had no opportunity to view or challenge them.

The Appeals Panel had had a discussion with Irene Stewart about the stickering policy if double the amount of bins allowed were left outside a house. The Panel took from this conversation that there was a deliberate refusal by Mr Duffy to lift these bins. Mrs Stewart had stated in her evidence that in fact Mr Duffy had done nothing wrong in this regard and had followed policy. When it was put to Mr Sweeney that the Appeals Panel had made an error in this aspect he couldn’t

state definitely if that was the case as he was not present for Mrs Stewart’s evidence. It is submitted this is a blatant error by the Panel which had a huge bearing on one of the charges made out against Mr Duffy. Given the Appeals Panel had the power to overrule the Disciplinary Panel, it was reasonable to expect more care to be taken.

Mr Sweeney stated that there were very little facts amongst the statements. It is submitted there was no reasonable belief held that Mr Duffy was guilty of gross misconduct.

Mr Sweeney then indicated that once a decision had been made the issue of mitigation was considered. Mr Sweeney gave evidence that the Appeals Panel considered Mr Duffy’s disciplinary history with the Respondent and stated there were three disciplinary matters in the past against Mr Duffy. Mr Sweeney could only remember two. Mr Duffy gave evidence that he is only aware of two formal disciplinary findings against him. During Mr Duffy’s cross examination the Respondent produced copies of warning letters Mr Duffy had received in his time at Omagh District Council. These were objected to on the basis they were requested in the Notice for Discovery and not disclosed. They were also requested before the Appeals Hearing but Mrs Rafferty, who was on the Appeals Panel, stated it was not relevant to the Appeal. As it was subsequently revealed, it certainly was relevant to the Appeal as they considered it in whether to mitigate any sanction against Mr Duffy. It is submitted this is another example of the unfairness which seeped through the whole procedure. Mr Duffy denied having received one of the letters which was in relation to an incident with a Derek Kerr in 2006. He had explained what this was about in his evidence.

Points raised in cross examination of the Claimant

-- Much was made of Mr Duffy’s priorities in his allegations against Mr McGinn but he maintained these were the bullying and harassment he received from Mr McGinn.

- Mr Duffy explained the reason he had not reported Mr McGinn for bullying previously was that he was on a final warning and in case it was somehow turned on himself (NB: it was never suggested by the Respondent that Mr McGinn had made a complaint before the 2” February)

-It was persistently put to Mr Duffy that he was challenging his line manager (Irene Stewart) over the decision to remove him and not Mr McGinn from their usual lorry run. Mr Duffy responded, consistently, that the only reason he kept asking about this was that his queries were never answered.

- - Mr Duffy was questioned on whether he had an aggressive personality given that his CF had stated so in his application for Disability Living Allowance. Mr Duffy felt he did not have an aggressive personality. It should be noted that his GP wrote this after he had explained the reason for his dismissal from work, this was not before the Disciplinary Panel and that being aggressive or not is not indicative of being guilty of one of the charges alleged.

-Mr Duffy was asked why he brought pre-prepared statements to the investigatory meeting. He gave evidence that this was because every time he asked questions they were never answered so he wanted Mrs Stewart and Mrs Woods to have time to read and respond to them. He answered questions put to him in the meeting and participated fully.

Conclusions

It is submitted on behalf of the Claimant that the Respondent has not satisfied the legal test of fairness as defined by Article 130(4) 1996 Order. There was clear inconsistency in the treatment of Mr McGinn•and the Claimant. Furthermore it is submitted that the Respondent’s efforts do not satisfy that the second and third limbs of the Burchell test. Finally, the Respondent failed to give reasonable weight to the submissions made by the Claimant and his representatives at all hearings. The specific issues which the Respondent refused to reasonably consider and/or reasonably investigate can be outlined as follows:

- Failure to deal with the Claimant’s complaints against Mr McGinn profitably or seriously in breach of the Respondent’s Harassment Policy

- Failure to interview individuals Mr Duffy consistently and repeatedly asked the Respondent to

- Failure to allow Mr Duffy to be accompanied by a work colleague when an additional statement was being made to an investigatory meeting contrary to the Respondent’s own policy or to inform him it was an additional statement at all

- Failure to pinpoint who made the decisions on who had a case to answer in respect of the allegations by Mr McCinn and Mr Duffy

- Failure to explain satisfactorily why Mr McGinn and Mr Duffy were treated so inconsistently despite being in such a similar position

- Failing to take notes of the meeting in which the decision to apply which charges to which person

- Refusal to remove Mr O’Gara from the Disciplinary Panel despite

concerns raised over his view of the allegations pre hearing

- Lack of clarity in notes of the Disciplinary Panel to explain how the conclusions of the Panel were reached

- The void of objective evidence in relation to swaths of disputed incident and in which findings of fact were in ade against the Claimant

- — Lack of clarity at how the charge of gross misconduct was made up

-— Basic errors in the interpretation of the Appeals Panel and it’s lack of consideration of important issues which affected its decision.

On account of the arguments as outlined above, it is the Claimant’s respectful submission that this dismissal was unfair and that the decision to dismiss was not within the band of reasonable responses open to the employer.

Quantum

As per the Claimant’s ETI form, he is seeking reinstatement. If the Tribunal finds the Claimant’s complaint of unfair dismissal well-founded but considers reinstatement or reengagement is not practicable then the quantum for compensation is outlined in the Claimant’s Schedule of Loss. The Claimant has been unable to work since his dismissal due to mental health problems. He has been in receipt of Employment Support Allowance since.

Benedict Wall
1st February 2011

IN THE MATTER OF AN APPLICATION BEFORE AN INDUSTRIAL TRIBUNAL

Between:

BRIAN DUFFY

Claimant:

-and-

OMAGH DISTRICT COUNCIL

Respondent:

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

1. At all times material to these proceedings the Claimant was employed as a Bin Collector with Omagh District Council (the Respondent). He usually worked in a two person team of lorry driver and lifter (he was the lifter) and the tribunal was told of the nature of the co-operation necessary to permit the operation to work efficiently. He was dismissed from his employment on 24 March 2010 by reason of gross misconduct. The Claimant presented a complaint to the tribunal on 22 June 2010commenced proceedings claiming that he had been unfairly dismissed.

2. The Respondent delivered its Response on 28 July 2010 contesting the Claimant’s complaint in its entirety.

3. It is not proposed to rehearse the evidence in this case but rather to highlight certain facts and the relevant principles of law. On 2 February 2010 the Claimant had been out on a bin collection run. The driver of the lorry was Brian McGinn. The lorry arrived back at the Respondent’s depot and both Mr McGinn and the Claimant spoke to Irene Stewart (Refuse and Fleet Manager) to complain about the other. Ms Stewart advised them that she could not deal with their, complaints at the same time as they were speaking over one another so the Claimant agreed that she should speak to Mr McGinn first.

4. When Ms Stewart had finished speaking with Mr McGinn she spoke with the Claimant. She spoke to Mr McGinn and the Claimant on a number of occasions on that day. Ms Stewart’s notes for discussions with Brian McGinn on 2 February 2010 appear at Pages 109-111 of the Bundle. Her notes of her

discussion with the Claimant on 2 February 2010 appear at Pages 112-115 of the Bundle. At this stage both Mr McGinn and the Claimant made complaints in relation to each other but no formal complaints were made.

5. Given, the circumstances the Respondent decided it would be better if the two men did not continue to work on the same bin lorry until the matter could be addressed. Accordingly, the Claimant was informed on 2 February that he was not to return to the lorry that day and instead Mr McGinn would complete the run. He was also advised that Mr McGinn would come off the lorry the following day and that the Claimant would work on it.

6. On the afternoon of 2 February 2010 Ms Stewart telephoned the Claimant to
inform him that following discussions with the Chief Client Services Officer and the Depot Manager and in light of the fact that both the Claimant and Mr McGinn wanted to remain on the lorry, both would go out on the lorry the following day (Wednesday 3 February 2010). Both men did go out on the lorry together the following day. Mr McGinn then took annual leave from Thursday, 4 February until Monday, 15 February 2010. Ms Stewart spoke to the Claimant on 3 February 2010. At that stage the thrust of the Claimant’s complaint against Mr McGinn was not that of bullying but rather that Mr McGinn was not complying with the Council’s procedures in respect of his duties. (See File Note at page 116 of the Bundle) During the course of his leave Mr McGinn contacted Ms Stewart on a number of occasions. On 5 February 2010 Mr McGinn telephoned Ms Stewart “in an aggravated and annoyed state” asking whether he had to work with the Claimant on his return. He told Ms Stewart that he had to ask the Claimant to get out and direct him if he was reversing, referred to the Claimant “sitting there not speaking” and told her he did not have to work in those conditions. He also advised Ms Stewart that he was not sleeping properly and referred to his doctor. (See File Note at page 122 of the Bundle) On 9 February 2010 Mr McGinn confirmed that he wished the complaint to be raised formally. See page 206 of the Bundle). When he returned from annual leave on 15 February 2010 the formal investigation into his complaint against the Claimant commenced. The tribunal has been referred to Ms Stewart’s notes at pages 122— 124 of the Bundle.

7. At the meeting on 3 February 2010 with Ms Stewart the Claimant stated that he would write up on his statement and bring it in.

8. It was felt by Irene Stewart and by Briege Woods of the Human Resources Department that throughout the initial stages of the investigation the 2

Claimant’s primary concern was not the fact that he had some complaint against Mr McGinn but rather his annoyance at having been taken off the collection run. There are various references to this throughout the investigation and in the course of the investigatory meeting held on Wednesday 17 February 2010 the notes of which appear at Pages 127-132 of the Bundle. It is submitted that it is also the case that Mr Duffy’s concerns about Mr McGinn related primarily to alleged breaches of policy/procedure by Mr McGinn for example collecting bins which he should not have been collecting. Evidence has also been given that the Claimant was quite confrontational at that meeting to the extent of making Ms Woods very uncomfortable.

9. On 9 February 2010 Ms Stewart and Ms Woods from HR met with Mr McGinn. There is a note of that meeting at pages 207 — 209 of the Bundle which has been signed by Mr McGinn. In the course of that meeting Mr McGinn outlined a number of concerns about the Claimant including the remark that “he (Mr McGinn) would suffer from August”, his throwing bags of salt from the cab and refusing to assist when others were helping with the adverse road conditions, the failure to tell Mr McGinn (as driver) about problems with the rake and the “tension and unease” which he experienced. He also told Ms Stewart and Ms Duffy about feeling intimidated, that Trevor McKeown felt it too, and that the Claimant “just goes up to people and shouts at them”.

10. Irene Stewart and Briege Woods arranged to meet the Claimant on 12 February 2010. During the course of that meeting the Claimant expressed his concern about being taken off the lorry and shouted at Ms Stewart that she had no right to do this. (Briege Woods File Note at page 125) The Respondent’s policy in respect of the investigation of complaints of bullying and harassment requires that consideration be given to separating the parties involved. This separation was not a punishment nor should it be taken as prejudging the outcome in any way. This was the purpose of the separation in this case. The Claimant suffered no detriment in terms of his duties which remained the same albeit he was assigned to a different lorry nor did he suffer any detriment in respect of his pay or other terms and conditions of employment. In those circumstances the Respondent accordingly denies that the Claimant was treated less favourably than Mr McGinn in this regard. It is submitted that this was a proportionate and eminently reasonable approach.

11. When Ms Stewart spoke to Mr McGinn on 12 March 2010 she observed that his “hands were shaking ... and he was again very upset and agitated”. (File Note at page 123)

12. On 15 February 2010 Ms Stewart wrote to the Claimant inviting him to attend a meeting on Wednesday, 17 February 2010. She enclosed a copy of Mr McGinn’s statement and advised him of his right to be accompanied. (Bundle page 126)

13. There is a note of the Investigatory Meeting held on 17 February 2010 at pages 127 — 132 of the Bundle. The Claimant was accompanied by Mr Pearson. The Claimant came to that meeting with two pre-prepared documents, a typed statement (Bundle pages 216—218) and a hand-written statement (Bundle pages 212 — 214). In the hand-written statement the Claimant rehearses his preoccupation with being taken off the lorry and it is not until the end of that statement that he mentions his complaint about Mr McGinn. In the typed statement the Claimant at point 24 states that the reason he believes Mr McGinn is bringing these allegations against the Claimant at this stage is because “I have not got a finally (sic) warning hanging over my head now”. It is submitted that this makes no sense in that if Mr McGinn was motivated by bad faith and determined to get the Claimant in trouble the time to act was when the Claimant was subject to a final warning and not when it had expired. At the meeting on 17 February 2010 MS Stewart and Ms Woods felt that the Claimant was more concerned about being taken off the lorry than any alleged bullying by Mr McGinn. This is clear from the note of the meeting where the Claimant is described as becoming “edgy and annoyed” and raising his voice and shouting. When asked to be specific about allegations of insults and bullying from Mr McGinn he concentrated primarily on alleged breaches of procedure by Mr McGinn. While the Claimant provided a different reason for remaining in the lorry cab while the road was being gritted it is clear that he conceded that he remained in the lorry while others laboured to grit the road. In respect of the bins on the Dromore to Irvinestown Road it is clear that he did not lift the bin in question and that Mr McGinn, as driver, dismounted to do so. In the course of that meeting, Mr Pearson, who accompanied the Claimant, told those conducting the meeting “very few people speak to him anyway”.

14. It was not until 17 February during the Investigatory Meeting with the Claimant that he indicated that he wanted his complaint to be treated as a formal complaint. In the course of that meeting the Claimant enquired whether Trevor McKeown had been interviewed. Mr McKeown (a relief

driver) was interviewed on 18 February 2010. There is a copy of his statement at pages 220 — 221 of the Bundle. In the course of his statement Mr McKeown stated, inter alia, that if there was anything wrong with the bins or lorry the Claimant would not speak to the driver about it, that his relationship with the Claimant was “always on a knife edge”, that he felt the Claimant “bullies him”. Ms Stewart and Ms Woods also met Dermot Mimnagh and Ricardo Aragunde.

15. On 26 February 2010 Ms Stewart had a discussion with the Claimant. Ms Stewart’s file note appears at page 117 of the Bundle. The Claimant challenged the statement paragraph by paragraph. This process went on for approximately two hours. Briege Woods subsequently attended the discussion in the circumstances she described to the tribunal. See Briege Woods note at page 179 of the Bundle. Mr Duffy’s additional statement appears at pages 224—226 of the Bundle.

16. On 2 March 2010 Ms Stewart wrote to Mr McGinn inviting him to attend a meeting on 5 March 2010. (Page 134) She also spoke to the Claimant on 3 and 4 March 2010. The note ofthe meeting with Mr McGinn and Mr Robert Anthony is at pages 135 —141 of the Bundle. In the course of that meeting Mr Anthony said that the Claimant “was a verbal bully”.

17. When Ms Stewart had completed her investigations she passed the paperwork to the Disciplinary Authority. The documents at pages 120 — 121 were not provided.

18. On 10 March 2010 Solicitors acting on behalf wrote to Ms Stewart (pages 144 - 146) raising a number of issues. Mr O’Gara, Chief Client Services Officer, replied by letter dated 12 March 2010. (page 149)

19. The Disciplinary Authority then met to consider the position. Mr O’Gara wrote to Mr McGinn by letter dated 11 March 2010 (page 143) advising him that the Claimant’s complaints against him had not been substantiated but that the other matters referred to could potentially amount to misconduct and Mr McGinn was invited to a disciplinary meeting on 15 March 2010. Mr O’Gara wrote to the Claimant by letter dated 12 March 2010 setting out the position that there was a case to answer and advising that the charges set out therein “potentially” amount to gross misconduct in which a potential outcome may be termination of employment. (pages 147—148) A number of documents were attached. The Claimant was invited to attend a disciplinary meeting on 15 March 2010. It is submitted that this was a conclusion the

Disciplinary Authority was entitled to come to given the information before it, including the Claimant’s own statements let alone the statements of others. It is clear that there was to be a hearing and that the Claimant was free to put forward his case.

20. It is submitted that all of the complaints made were formally and thoroughly investigated. The outcome of the investigations were as follows:

(a) The Claimant’s allegation of bullying and harassment against Mr McGinn was found not to be substantiated.

(b) Mr McGinn’s complaint of bullying and harassment against the Claimant was found to have substance and that the Claimant had a case to answer in this regard.

(c) During the course of the investigation by the Respondent there was evidence to suggest that the Claimant was in breach of the Council’s trust and confidence in his ability to carry out his job by

(i) Failure to cooperate and communicate with the driver in operating the controls of the lorry;

(ii) Failure to show a willingness to cooperate with the driver in carrying out the duties of a refuse collector, that is, lifting bins etc.;

(iii) Contributing to the breakdown of working relationship and team spirit and generally creating an atmosphere which is not conducive to a good working relationship.

21. The Claimant was invited to attend a disciplinary meeting on 15 March 2010. Prior to that meeting the Respondent received from the Claimant’s Solicitors a letter dated 10 March 2010 in which the Claimant raised a formal grievance against the Respondent. The Respondent replied by letter dated 12 March 2010 indicating that in accordance with the Employment (Northern Ireland) Order 2003 and the Employment (Northern Ireland) Order (Dispute Resolution) Regulations (Northern Ireland) 2004 the matters raised by the Claimant in his grievance could be raised by him and would be addressed at the disciplinary meeting arranged for 15 March 2010. (See above) The Claimant’s solicitors wrote again by fax and hand delivery on 15 March 2010 (the date on which the disciplinary meeting had initially been arranged) and requested that the disciplinary meeting be postponed in order to permit the Claimant time to take legal advice and prepare for the meeting. (Letter at

page 150 — 151) Mr O’Gara described the circumstances in which the letter was handed to him before the disciplinary hearing was due to commence. There is also a file note for 15 March 2010 at page 152 of the Bundle. In addition, the Claimant’s Solicitors requested that the Claimant be allowed to have a legal representative present at the disciplinary meeting. The Respondent agreed to the Claimant’s request that the disciplinary meeting be postponed. The Respondent also replied to the Claimant’s Solicitors by letter dated 18 March 2010 (pages 155 — 156) responding to the matters raised by them in their letter of 15 March 2010. It declined the request that the Claimant be allowed legal representation at the disciplinary meeting on the grounds that the circumstances of the case referred to were not applicable to the Claimant’s case. It was also contrary to the disciplinary process which the Trade Union and Respondent had worked to for some 20 years. The Respondent also pointed out in its reply that the Claimant was given the right to be accompanied at the meeting in accordance with Article 12 of the Employment Relations (Northern Ireland) Order 2006. This right was also in accordance with the provisions of other legislation. The disciplinary meeting was rearranged for 23 March 2010. The Claimant was also advised of this by letter dated 16 March 2010. (page 153)

22. On 22 March 2010 the Claimant’s Solicitors wrote again to Mr O’Gara.
(pages 157— 158) to which Mr O’Gara replied by letter dated 23 March 2010.
(page 159). Mrs Rafferty also wrote to the Claimant’s Solicitors in respect of a
mater they had raised. )pages 160—161)

23. The Claimant attended the meeting On 23 March 2010 and was accompanied by a work colleague. The members of the disciplinary panel were Kevin O’Gara (Chief Client Services Officer), Sean Kelly (District Chief Building Control Surveyor), and Barney Heywood (Group Chief Environmental Health Officer). They had the relevant paperwork arising from the investigation procedure. There is a note of the disciplinary proceedings and a note of the panel deliberations at pages 90—96 of the Bundle. This document together with the evidence of Mr O’Gara sets out the reasoning of the disciplinary panel. At the disciplinary meeting the Claimant was given an opportunity to put forward further detail all his complaints/grievances including his allegation that he had been bullied and harassed by Mr McGinn. He was also given the opportunity to respond to the disciplinary charges. During the course of the meeting the Claimant stated that “Trevor McKeown was lying when he said he was being bullied and suggested [Omagh District Council] talk to Davy Hall to get the opposing opinion”. Following the meeting the disciplinary panel considered the matter fully. In addition, the panel

considered additional statements taken from two witnesses on 24 March 2010 by Mr O’Gara to clarify a particular matter raised by the Claimant. (Statements at pages 288 and 289) See also the panel file note at page 163 of the Bundle. Mr Hall confirmed the statement handed in by the Claimant (page 291) was his and Trevor McKeown, in effect, simply confirmed what he had already said.

24. It was the disciplinary panel’s decision not to uphold the Claimant’s allegation that Mr McGinn had bullied and harassed him. It also decided not to uphold his formal grievance as set out in the Solicitor’s letter of 10 March 2010. The panel, however, did uphold Mr McGinn’s complaint that the Claimant had bullied and harassed him. It also upheld other charges as set out in the letter of termination dated 24 March 2010. (pages 164 — 165) The panel was of the view that the Claimant’s conduct amounted to gross misconduct. The disciplinary panel also considered the question of mitigation and after considering the Claimant’s length of service, previous disciplinary record and any mitigating circumstances the panel came to the conclusion that in the circumstances it had no alternative but to terminate his employment. He was offered the right to appeal. He did so through his Solicitors by letter dated 26 March 2010. (page 167) The Chief Executive, Mr McSorley, wrote to the Claimant (enclosing attachments) by letter dated 29 March 2010. (page 168)

25. The Claimant’s Solicitors sought further information by letter dated 29 March
2010 (page 169 -170) and the Mr McSorley replied to this by letter dated 31
March 2010 (pages 171 — 173) with attachments. The appeal hearing had
been arranged for Monday, 1 April 2010 but was postponed at the Claimant’s
Solicitors request to 12 April 2010. (pages 181 and 185) On the evening of
Thursday 8 April further correspondence was received from the Claimant’s
Solicitors responding to the Respondent’s earlier reply of 30 March 2010.
(pages 192 — 193) Mrs Rafferty responded by letter dated 9 April 2010. (page
198)

26. The appeal took place on Monday, 12 April 2010. The members of the appeal panel were Danny McSorley (Chief Executive), Rosemary Rafferty (Head of Human Resources/Training), and Frank Sweeney (Head of Arts and Tourism).

27. The Claimant attended accompanied by the same work colleague. He was given full opportunity to put forward his case in its entirety. Following the meeting the appeal panel considered all the evidence in the matter. The

notes of the Appeal Panel and its deliberations appear at pages 101 —108 of the Bundle. The tribunal heard the evidence of Mr McSorley and Mr Sweeney who sat on this panel. The decision of the Appeal Panel was to uphold the decision of the Disciplinary Panel to terminate the Claimant’s contract of employment. The letter setting out the outcome of the appeal is at pages 202 — 203 of the Bundle. The tribunal also heard from Mr Sweeney that the panel considered mitigation, including whether charges might be mitigated by a lack of training but concluded there was no mitigation on this ground.

28. The Respondent denies that the Claimant’s dismissal was connected to or related in any way to personal injury litigation which he had brought against the Council. It is respectfully submitted that there is no evidence of this. Equally, it had been a long time since the Claimant had been a trade union representative and there is no evidence to substantiate his alleged concerns about Mr O’Gara. There is no reasonable basis for the contention that the Claimant was treated less favourably then Mr McGinn who was also subjected to the disciplinary process. There was no entitlement to legal representation in the circumstances. The Claimant’s dismissal was for the reasons set out in the letter of dismissal. The Respondent considered the Claimant’s disciplinary record for the purposes of mitigation only. It contends that in considering his previous service the record showed three previous warnings: a written warning issued in March 2006 (under harassment policy); a final warning issued in November 2006 (for failing to carry out a reasonable instruction re lifting bins) and a final written warning (assault on a fellow employee) issued in June 2007. While the Claimant contests the Respondent’s contention that he had three disciplinary findings he appears to accept the other two. The Respondent denies the Claimant’s allegations in their entirety. It contends that the dismissal of the Claimant was fair and reasonable in the circumstances. It denies that Mr McGinn was treated more favourably in any respect. The Claimant’s complaint against Mr McGinn and his grievance against the Respondent were all properly and thoroughly dealt with. The Respondent contends that it acted fairly in all the circumstances.

29. The list of potentially fair reasons for dismissal is set out in the Employment Rights (Northern Ireland) Order 1996. There is a certain degree of overlap between the potentially fair categories and, therefore it may well be the case that the reason for dismissal may fall into more than one category.

30. Save where it is an automatically unfair or an automatically fair dismissal, a dismissal will be fair if the employer proves that the reason or, if more than

one, the principal reason for dismissal falls within one of the statutory potentially fair reasons for dismissal and the tribunal concludes that it was fair and reasonable in all the circumstances to treat that reason as sufficient to justify dismissing the employee.

31. The relevant time for determining the reason for dismissal is the date of the dismissal itself.

32. The statutory test of fairness which applies in all cases of unfair dismissal, save for retirement dismissals, automatically unfair and automatically fair dismissal, is set out in the legislation. This provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reasons 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.

33. At one time the burden of proof in unfair dismissal cases at this stage was on the employer. This test was subsequently amended primarily by removing the requirement that the employer shall satisfy the tribunal as to the reasonableness of the employer’s action thus rendering the burden of proof “neutral”. The test as to whether the employer acted reasonably is an objective one. The tribunal has to decide whether, in all the circumstances, the employer’s decision to dismiss fell within the range of reasonable responses that a reasonable employer in the same circumstances might have adopted: Iceland Frozen Foods Limited -v-Jones [1993] ICR 17. This range of reasonable responses test applies not just to the decision to dismiss, but also to the procedure by which the decision to dismiss is reached: Sainsbury’s Supermarkets Limited -v- Hitt [2003] IRLR 23.

34. It is potentially fair to dismiss an employee for misconduct. This may be either a single act of serious misconduct or a series of acts that are less serious. Breaches of discipline may cover a large range of matters. In most cases of misconduct the starting point for determining whether a dismissal is fair in the circumstances are the guidelines set out in British Home Stores

Limited -v- Burchell [19781 IRIS 379 (EAT): “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 (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”.

35. Accordingly, in most cases of misconduct, the issues to be determined by the Tribunal will be:

· Whether the employer, at the point of dismissing the employee, genuinely believed that the employee was guilty of the misconduct in question;

· Whether the employer had reasonable grounds on which to sustain his belief;

· Whether the employer had carried out as much investigation as was reasonable in the circumstances; and

· Whether dismissal was a fair sanction to impose.

36. As far as reasonable investigation is concerned it is important to carry out reasonable investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing — the system employed in the present case.

37. As far as the conduct of the disciplinary meeting is concerned the employer should set out the complaint against the employee and the evidence gathered; the employee 5hould be permitted to set out his or her case and answer any allegations that have been made; the employee should be given a reasonable opportunity to ask questions, present evidence and call witnesses; and the employee should be given an opportunity to raise points about any information provided by the witnesses.

38. It is not in dispute that the Claimant has been dismissed by the Respondent. Accordingly, the relevant statutory provisions governing the determination

of the fairness of the dismissal are to be found in Article 130 of the Employment Rights (Northern Ireland) Order 1996.’

39. If the employer successfully establishes the reason for the dismissal the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal. The manner in which the tribunal should approach that task has been considered by the Northern Ireland Court of Appeal in Dobbin v Citybus Ltd [2008] NICA 42 where Higgins U stated:

“[48]... The equivalent provision in England and Wales to
Article 130 is Section 98 of the Employment Rights Act
1996 which followed equivalent provisions contained in
Section 57 of the Employment Protection (Consolidation)
Act 1978.

[49] The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [198011CR 303 and Iceland Frozen

¹ “130.—(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 principal reason) for the dismissal, and
(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—

(b) relates to the conduct of the employee,

(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.”

Foods Ltd v Jones 11983] ICR 17 — and explained and refined principally in the judgments of Mummery U in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at (2000] 1CR 1283 (two appeals heard together) and J Sainsbury v Hitt [200311CR 111.

[50] In Iceland Frozen Foods Browne-Wilkinson I offered the following guidance

‘Since the present state of the law can only
be found by going through a number of different authorities, i may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 5 7(3) of the [Employment Protection Consolidation) Act 1978] is as follows:

(1) the starting point should always be the words of section 5 7(3)
themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the

decision to dismiss the employee fell within the band of reasonable esponses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’

(51] To that may be added the remarks of Arnold J in
British Homes Stores where in the context of a misconduct
case he stated –

‘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 (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 his mind reasonable rounds 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. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shored that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality
of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities,

or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now
said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable
doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance
of probabilities will in any surmisable circumstance be a reasonable conclusion’.”

40. It is submitted that the Respondent has established the misconduct of the Claimant and that the Respondent had reasonable grounds to sustain the belief in the particular misconduct. It is further submitted that the Respondent carried out such investigation as was reasonable in the circumstances and that the misconduct in question was a sufficient reason for dismissing the employee. There is no hard and fast rule as to the level of inquiry that an employer must follow to satisfy the Burchell test.

41. The Respondent contends that the process adopted at the investigatory stage, at the disciplinary hearing and on appeal was fair and afforded the Claimant the opportunity to put forward his case and answer the charges against him. It is further submitted that both the disciplinary panel and the appeal panel were entitled to arrive at the conclusions reached by them and to conclude that dismissal was the appropriate sanction in the circumstances.

42. In the event that the tribunal should conclude that the dismissal was unfair the Respondent invites the tribunal to consider remedy, in the first instance reinstatement (as required by the Order).

43. The Claimant has sought re-instatement. Among the questions which the tribunal must consider is (a) the Claimant’s wishes, (b) the issue as to whether it is practicable for the employer to comply with such an order and

(c) whether the Claimant caused or contributed to some extent to the dismissal. A broad commonsense approach should be taken to the question of practicability. Where relations have broken down between the employee and his employer and his work colleagues (as in this case) it is submitted that reinstatement is unlikely to be practicable. Where there has been a breakdown in trust and confidence (as in this case) neither reinstatement nor reengagement may be practicable. Further where there are ill-health issues (as in this case) neither reinstatement nor reengagement may be practicable. “Practicable” is not to be equated with “possible” in these circumstances and it is the duty of the tribunal to consider the industrial relations realities of the situation. It is submitted, having regard to the nature of the charges, the evidence of Mr Sweeney and the reference by the Claimant’s own doctor (page 264 of the Bundle) that neither reinstatement nor reengagement may be practicable or appropriate in the circumstances.

44. The principle of a compensatory award is set out in the Order — the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. In the present case and subject to the general principles governing loss the tribunal should take into account:

(a) whether given the medical condition he is fit for work and would be able to work for the Respondent in any event. The reason for his application for DLA is broad based. (page 261 of the Bundle) It is conceded by his Solicitor that he is unable to seek alternative work. He has not sought alternative work by way of mitigation.

(b) If it is held that the Claimant has been dismissed for a substantively fair reason but is held to have failed to follow a fair procedure the compensatory award may be reduced potentially to nil so long as it can be shown that a fair procedure would have resulted in a

dismissal in any event. Should a Polkey reduction be made in this case?

(c) Contributory fault: Where there is evidence that an employee has “caused or contributed” to his or her dismissal the tribunal shall reduce the compensatory award by such proportion as it considers just and equitable having regard to that finding. It is submitted that any award of compensation in this should be reduced to nil by reason of the Claimant’s conduct.

45. The Respondent reserves the right to expand on its written representation in the course of the oral hearing on submissions.

G. Grainger
Counsel for the Respondent
2nd February 2010

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Duffy v Omagh District Council [2010] NIIT 01631_10IT (21 February 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/01631_10IT.html Cite as: [2010] NIIT 1631_10IT, [2010] NIIT 01631_10IT

Industrial Tribunals Northern Ireland Decisions