Jordan v Royal Mail Group Limited [2010] NIIT 07160

THE INDUSTRIAL TRIBUNALS

CASE REF: 7160/09

CLAIMANT: Keith David Jordan

RESPONDENT: Royal Mail Group Limited

DECISION

The unanimous decision of the Tribunal is that the dismissal of the claimant was fair and the claim must fail.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mr N C Wilkinson

Mr J E Martin

Appearances:

The claimant appeared and was represented by Mr Michael Ford, Counsel instructed by John Mc Gale, Kelly and Company.

The respondent appeared and was represented by Mr David Dunlop, Counsel instructed by Napier and Sons Solicitors.

SOURCES OF EVIDENCE

Witnesses

1. The Tribunal heard from the claimant.

2. For the respondent the Tribunal heard from Ms Diane Willis, Collection and Delivery Section Manager, and Mr Jim Mc Creight, Appeals Manager.

Documents

3. The Tribunal was furnished with the hearing bundle and extraneous documents during the course of the hearing.

Submissions

4. The Tribunal received written submissions from both counsel.

Findings of Facts

5. The tribunal found the following facts proven agreed or proven on a balance of probabilities:-

6. The claimant was employed by Royal Mail Group Limited as an operational postal grade, otherwise known as a Postman.

7. In July 1998 he was employed at the delivery office in Cookstown and remained there until his dismissal on 6 July 2009.

8. The claimant’s job at the Cookstown delivery office was described as a “travelling reserve”. This post acted like a float in the delivery office in that the claimant filled in for other people doing a variety of different routes as opposed to one dedicated route.

9. For the purposes of the delivery of mail Cookstown is divided up into a number of “routes” otherwise known as “towns”. On 9 May 2009 the claimant was on a duty known as F19. F19 was a mixed run in that it consisted of drop offs to mail boxes and deliveries to a number of businesses. As such it was a run that attracted a high number of special deliveries.

10. This was a service offered by the respondents to customers who paid a premium rate to ensure next day delivery, by 1 pm. If the delivery deadline was not met the customer would be compensated by the respondents for this failure. The items for special delivery are tracked into an electronic device called a PDA, a postal digital assistant. On delivery the customer is asked to sign the digital screen,

11. On 9 May 2009 the claimant attended work at 5.35 am and commenced his round at 8.45 am. The claimant’s estimated finish time was 13.45 pm but he was due to finish at 13.50 pm, with a 5 minute balance at the end of the day. In the event the claimant finished his shift at 13.15 and the additional time included his meal relief.

12. In his own time the claimant was the President of his local bowls club and on 9 May he was scheduled to play in the Irish Junior Cup. The claimant had arranged an early lift to work, had brought his bowls clothes into work and had arranged to be collected from work and taken to the match at 13.15 pm. The claimant accepted that he had arranged to be collected from his work at a time when ordinarily his shift would not have ended but he stated that he had thought that this was doable if he did not take his meal relief during his shift.

13. On a Saturday the Cookstown delivery office was managed by operative postal grades moving into roles that attracted responsibility allowances. At the start of the claimant’s shift postman Derek Harkness was in this responsibility role, up until
8.00 am. Mrs Beth Service was the supervisor thereafter.

14. However, on his arrival into work on 9 May 2009 the claimant was disheartened to discover that he had 28 special deliveries to complete before 1pm. The claimant

received the response “Well, G Larmour (the postman who normally did the F19

route) does it”. The claimant agreed that this was the extent of the exchange between himself and Mr Harkness.

15. The claimant then split the special deliveries and placed some of them in a tray which he left in the central work station of the delivery office, the REL. He spoke briefly to Mrs Service and told her that he was leaving a quantity of special deliveries there. The claimant agreed that he did not have any further conversation with Mrs Service. The claimant put the rest of the special deliveries into the van and went off to do his run.

16. At 11.30 am the claimant returned to the delivery office. He made a telephone call to the Secretary of the bowls club to check if the bowls match was still on as it had begun to rain. The Secretary confirmed that the match was going ahead. The claimant collected the rest of the special deliveries and stated that he then concentrated on getting these delivered between 11.30 am and 13.00 pm, when he returned to the delivery office.

17. However the claimant did not complete the delivery of the special deliveries before returning to the delivery office, leaving 13 special deliveries undelivered. The claimant was collected at 13.15pm and went to his bowls match.

18. On Monday 11 May 2009 the claimant’s manager, Mr Kevin Hughes, spoke to the claimant about the 13 undelivered special deliveries. During this discussion the claimant stated that he had found it impossible to deliver the special deliveries and if he had delivered only these he would not have been able to deliver all the other items on his run.

19. The claimant added that he spoken to Mr Harkness about the unusually high number of special deliveries. The claimant also stated that he had discounted asking for help with these deliveries as the only person around the office at 11.30am was Beverley Stewart and the claimant did not feel that Ms Stewart had sufficient training on the use of the PDA to be of assistance to him.

20. The claimant accepted that it would have been preferable to have delivered the special deliveries late and passed the premium rate deadline than have left them undelivered at all.

Fact Finding Interview 28 May 2009

21. Following this conversation Mr Hughes invited the claimant to a fact finding meeting on 28 May 2009. He was advised of his right to be accompanied but the claimant opted to attend this meeting unaccompanied. At its outset the claimant was advised that the purpose of the meeting was to establish the facts of what had occurred on 9 May 2009.

22. At this meeting the claimant explained the position he had been faced with in relation to his bowls match and the pre-arranged lift to collect him for it at 13.15 pm.

23. The claimant stated that as he knew he was on F19 and with it being a Saturday and some of the businesses closed he knew he could get a reasonably early finish.

The claimant also stated that, on realising the amount of special deliveries he

had, he had told Derek Harkness that he did not see how he was going to manage to get all his deliveries completed. When he was asked what Mr Harkness had said in response to this the claimant stated that he could not remember, or that he had maybe remarked on there being 50 special deliveries at the Final Arrival stage.

24. The claimant also added that he had only been on the F19 duty twice or three times before. The claimant added that because he was doing all the different types of runs he was finding it difficult to get things done and that his position was becoming stressful. The claimant stated that if his colleague Sean Quinn had been at work on the Saturday in question that Mr Quinn would have given out some of the claimant’s work to others.

25. On being questioned about his run the claimant described how he had raced around trying to get as much done before returning the delivery office at 13.00pm. In reply to the question as to why he had returned to the office at that time the claimant remarked that he had not taken his meal relief and had needed to meet his lift to go to the bowls. The claimant confirmed that he had not asked anyone for help to complete his round.

26. The claimant stressed that he had not tried to hide what had happened and that he had first reported the undelivered items to Mr Quinn on the following Monday, 11 May 2009.

27. After this meeting Mr Hughes wrote to Diana Willis and advised her that he believed that after his considerations of the allegations of misconduct against the claimant he was referring the matter to her as it seemed to him that there was a case to answer and that the matter may have required a decision beyond his level of authority. Mr Hughes also wrote to the claimant in the same terms.

The Conduct Interview

28. The claimant subsequently received a letter from Diana Willis who advised him that she was dealing with the charge against him of wilful delay of mail. This was the first time the claimant had been told that he had been so charged.

29. By a further letter dated the 15 June 2009 the claimant was invited to attend a formal conduct interview to investigate the charge against him of wilful delay of mail. He was advised of his right to be accompanied and on this occasion he was accompanied by Sean Quinn. The interview was conducted by Ms Willis who stated at the outset the seriousness of the charge of wilful delay of mail and that this was in relation to the 13 undelivered special deliveries.

30. At the conduct interview Ms Willis asked the claimant why he had arranged his lift to the bowls match for 13.15 pm, during his duty hours. The claimant reiterated that he had thought that he would get his round finished early as it was a Saturday and that he had not taken his meal relief during his duty and that he thus had that time in hand. However, the claimant accepted that he was aware of the Health and Safety rules in relation to taking his meal relief during his duty hours and accepted

that this would not be something he would ordinarily do that he had used meal relief time to shorten his duty that Saturday, to accommodate the bowls match.

31. The claimant also accepted Ms Willis’ contention that on ringing the Secretary of the bowls club at 11.30 am - to check that the match was still on in spite of the rain- that he was making a commitment to play at the match knowing that he may not be able to complete his duty. The claimant stated that as President of the club he had felt under pressure to attend and play the match but stated that if he had thought at the time his decision would have lead to his being disciplined he would have forsaken the match.

32. However the claimant refuted Ms Willis’ suggestion that he had left the bundle of special deliveries in the REL in the hope that someone else would deliver them for him. The claimant did accept that at 13.10 pm he had told Derek Harkness that he had not been able to make all his deliveries. The claimant went on to add that he had considered and ruled out Beverly Stewart as a possible replacement for himself and had checked whether another colleague, Gareth Atwell, was available but had noticed that Mr Atwell was on collections and was unable to help him.

33. During the course of the conduct interview Ms Willis asked the claimant what he had thought would have happened to the undelivered items. The claimant replied that he did not know but that he had had to go on to the bowls match.

34. The claimant also accepted that he had not advised any of his managers or supervisors that he might need help to complete his round either during the preceding week or on the Saturday in question. Neither did the claimant seek any help from any of his manager, supervisors or colleagues on the Saturday itself. The claimant blamed this lapse on his own inexperience and that of Derek Harkness.

35. Ms Willis investigated what Mr Jordan had told her at his conduct interview and spoke to Mr Harkness. Mr Harkness confirmed that at no stage on the Saturday did the claimant indicate to him that he would not get all his parcels delivered.

36. Following the conduct interview Ms Willis wrote to the claimant on 6 July 2009 and advised him that he would be summarily dismissed and that his last day of service would be 6 July 2009. Ms Willis’ letter offered the claimant the right to appeal her decision. The letter enclosed Ms Willis’ deliberations and conclusions and the tribunal noted that Ms Willis had reached this conclusion on a number of bases.

37. The first of these was that Ms Willis rejected the claimant’s assertions that he was inexperienced at doing this F19 route and that he was inexperienced in using PDA. Ms Willis noted that the claimant had 10 years experience working in this particular unit and had extensive knowledge of the majority of town deliveries in Cookstown and of the road traffic situation on a Saturday.

38. Further, Ms Willis gave no credit to the claimant’s assertion of his inexperience in relation to the use of the PDA as she noted that the claimant had appropriate training on the use of PDAs and that the claimant had failed to bring this inexperience to the attention of either his supervisors or colleagues on the Saturday morning.

39. Ms Willis concluded that the claimant had relied on his experience on this duty to base his expectation that he would have his round completed early and on the basis of this had arranged his lift for 13.15 pm.

40. Ms Willis also rejected the claimant’s suggestion that he had too much workload on the day in question on the basis that if this had been the case it was the claimant’s responsibility to alert a Manager, Supervisor or colleague to this as soon as possible and Ms Willis noted that the claimant had failed to do this.

41. Ms Willis concluded that the claimant had left the remaining special deliveries in the REL in the hope that someone else would deliver the items and also to give him an excuse to return to the delivery office and make what the claimant viewed as an important telephone call to the Secretary of the bowls club.

42. Ms Willis also concluded that in making his remark to Derek Harkness at the end of his duty the claimant sought to discharge the responsibility for the delivery of the special delivery packages to Mr Harkness. Ms Willis noted that by this stage of the morning Mr Harkness was not in the supervisor role he had been earlier in the morning and the claimant would have been aware that he could not discharge his responsibility to Mr Harkness in this way.

43. Ms Willis did accept that while there was no manager in attendance at the delivery office that Saturday morning she rejected the claimant’s contention that he had no one to report his difficulties to. Ms Willis concluded that the claimant would have been familiar with the workings of the delivery office on a Saturday and would have been aware of who was in the supervisor’s role and when.

44. Ms Willis concluded that the claimant had demonstrated to her his awareness of what he ought to have done in the circumstances he found himself in that morning and noted that the claimant had simply disregarded it on the basis that he was in too much of a hurry. Ms Willis concluded that this disregard had been compounded by the fact the claimant had left work 30 minutes before the end of his duty, rejecting the claimant’s contention that he was entitled to do so because he had not taken his meal relief.

45. Ms Willis went on to conclude that the claimant had allowed his commitment to attend the bowls match to take precedence over his duty. Ms Willis took into account the fact that the claimant had arranged a lift to take him to the bowls match 30 minutes before his due to finish time. Ms Willis also noted that the claimant would have known about the bowls match in advance and had not availed of other options available to him for example arranging leave, swapping his day off or asking for help instead choosing to rely on what the claimant predicted would be an early finish.

46. In light of all of this Ms Willis concluded that the claimant had shown complete disregard for his duties and that he had taken a deliberate decision not to deliver the special deliveries entrusted to him in favour of leaving work early to attend a bowls match. Ms Willis thereby concluded that the charge of wilful delay of mail had been made out.

47. In reaching her decision as to the appropriate penalty for the claimant Ms Willis took into account the claimant’s length of service - almost 10 years - his experience and work performance and also his attendance and conduct records. Ms Willis concluded that the claimant’s length of service mitigated against his assertions that his actions on the day in question were due to his inexperience. Further Ms Willis noted that the claimant had a recent reprimand on his conduct record, awarded to

the claimant for having disregarded the delivery procedure instruction. In light of the fact that the Royal Mail conduct code indicated that wilful delay was classed as gross misconduct, Ms Willis concluded that the claimant’s record and length of service with Royal Mail were insufficient to mitigate this particular act of gross misconduct. Ms Willis indicated that she was satisfied that the claimant had known exactly what he ought to have done in the event that he could not deliver the mail but had deliberately chosen to ignore this on the day in question.

The Appeal

48. The claimant’s appeal against his summary dismissal was heard by Mr Jim Mc Creight, Appeals Manager, on 22 July 2009. The claimant attended and was accompanied by Mr Norrie Watson of the Communication Workers Union.
Mr McCreight opened the interview by confirming that the claimant understood that the purpose of the interview which was to give the claimant an opportunity to say anything he felt might help his appeal. Mr McCreight then proceeded to go through the documentation in the case and, having conducted a résumé of the documentation, Mr McCreight invited the claimant to provide the grounds for his appeal against the decision to dismiss him.

49. Mr Watson submitted that the first ground of appeal was that it was most unusual that the claimant had not been placed on paid suspension. Mr Watson also submitted that the claimant’s action had been wrongly categorised as gross misconduct and ought to have been categorised instead as major misconduct of ‘unexcused delay’ rather than ‘wilful delay’. Mr Watson drew attention to the fact that the claimant himself had reported the matter, that he had mentioned paying the outstanding compensation and pleaded for a lesser penalty.

50. Mr Watson also drew attention to the fact that there had been a significant gap in time between Mr Hughes’ diary entry recording the details of the incident on 11 May 2009 until the first fact-finding interview on 28 May 2009. Mr McCreight indicated that he had also noticed this delay and was happy to investigate it.

51. The appeal hearing canvassed the submissions the claimant had made at his conduct interview including the unusually high number of special deliveries and the claimant went into some detail as to how he had sought to ensure these were all delivered in his duty. In response to Mr McCreight’s suggestion that the claimant had never intended to deliver the special delivery items and that he had left some of them behind in the REL in the hope that it would have been delivered by someone else, the claimant stated that he thought that a printout from the PDA would show that he had every intention of delivering the items he had left behind as well as the others. Mr McCreight agreed to look into this and to share the outcome.

52. The claimant went on to re-state his position that he had thought Derek Harkness was in charge and that in speaking to him he believed he had reported his difficulties.

53. However, during the appeal the claimant stated that he had rung the bowls secretary in the hope that the rain would have called the match off and that he could have finished his duty. The claimant went on to accept that, in hindsight, there were many things that he could have done that day and agreed that he had elected to make the bowls game his priority rather than his duty.

54. The claimant went on to add that he had a lot of personal problems and requested that he got one more chance.

55. In the event Mr McCreight rejected the claimant’s appeal and in his Findings and Conclusion Mr McCreight set out the reasons for his decision. In relation to the points raised during the claimant’s conduct in appeal interviews Mr McCreight dealt with these as follows:-

Delay in relation to the first fact-finding interview

56. Mr McCreight investigated this and was advised by Mr Hughes that he had been off on leave from 15 May to 26 May and that the interview was carried out by him on 28 May as soon as possible after his leave. Mr McCreight accepted that this had been the case.

57. Mr McCreight indicated that precautionary suspension did not automatically apply so that the decision not to suspend the claimant had not fallen foul of the conduct code.

58. Mr McCreight also investigated a query from Mr Watson as to why the addresses of the undelivered special delivery items had not been photocopied and Mr McCreight was satisfied with Mr Hughes’ explanation that he had believed that it was his priority on 11 May to get the undelivered items delivered and that not recording the failed addresses was an oversight.

Printout from the PDA

59. Mr McCreight indicated that he had checked this but records were no longer available. Mr McCreight disregarded this point as having any relevance as the key issue in the claimant’s case was in relation to the items he failed to deliver not what items had been delivered.

60. Mr McCreight also took account of the claimant’s additional written statement and the supporting letter from his colleague Sean Quinn. Mr McCreight concluded that the claimant’s additional statement revealed nothing new but noted that Mr Quinn supported the claimant’s view that Mr Harkness, acting as supervisor, had failed to issue the special delivery items properly. Mr McCreight took this as an attempt by the claimant to lay the blame on others and rejected the contention.

61. Mr McCreight concluded that it was his reasonable belief that the claimant had left some of the special delivery items behind in the office in the hope that someone else would deliver them. Mr McCreight also concluded that he had a reasonable belief that the claimant had chosen to fulfil his commitment to play bowls ahead of his commitment to Royal Mail and its customers. In finding the claimant’s actions inexcusable Mr McCreight concurred with the conclusions reached by Ms Willis and upheld the decision to dismiss.

Submissions

62. The Tribunal heard and received submissions from the representatives. In particular the Tribunal considered Mr Forde’s submission that the claimant’s action ought to have been categorised as the major misconduct of ‘unexcused delay’ rather than the gross misconduct charge of ‘wilful delay’.

THE LAW

63. The Tribunal considered the relevant legislative provisions and case law.

Legislative Provisions

64. The Employment Rights (Northern Ireland) Order 1996 provides at Article 126 Paragraph (1), that an employee has the right not to be unfairly dismissed by his employers. Article 130 of this Order goes on to state that:

“(1) In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or if more than one, the principle reason) for 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 or an employee holding the position which the employee held.

(2) A reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee for

performing work of the kind which he was employed to do,

(b) relates to the conduct of the employee,

(d) is it that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision”.

Paragraph (4) goes on to state that where the employer has fulfilled the requirements in Paragraph (1), 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”.

Both representatives referred the Tribunal to Harvey Division DI, Unfair Dismissal and to extracts there from.

65. The Tribunal also took into account the cases of British Home Stores Limited-v

Burchell 1978 IRLR 379, Iceland Frozen Foods V Jones 1983 IRLR, Dobbin-v-Citybus Limited (2008) NICA 42, NICA and the guidance set out in the Court of Appeal in Rogan-v-South Eastern Health and Social Case Trust (2009) NICA, and noted that it is a tribunal’s role to decide whether respondents demonstrate a reasonable suspicion amounting to a belief in the guilt of the claimant, whether respondents had a reasonable basis for this belief and, at the stage of forming this belief on these grounds, had conducted as much investigation as was reasonable in all the circumstances of the case.

66. If, having found that a respondents’ reason for dismissing the claimant is one of the six statutory reasons, then the Tribunal’s role is to decide whether or not the dismissal of the claimant for that reason was fair.

67. In this regard and in this case the Tribunal was mindful of this guidance and was also careful to avoid substituting its own decision in relation to the course adopted by the respondent and determined only whether in the circumstances the decision to dismiss taken by the respondent fell within a band of reasonable responses which a reasonable employer might have adopted.

THE TRIBUNAL’S CONCLUSIONS

68. The Tribunal concluded that the respondents had conducted a reasonable investigation into the claimant’s conduct at the time of his dismissal and had therefore a reasonable belief that the claimant had been guilty of the gross misconduct with which he was charged. The Tribunal further noted that in this case this reasonable belief was supported, on at least two occasions, by the claimant’s own admission to the effect that he had chosen to meet his commitment to his bowls match and had put this commitment ahead of his duty.

69. The Tribunal noted that the respondents’ investigation had given the claimant several opportunities to state his case and had, on each point raised by the claimant, conducted enquiries to establish the validity of the claimant’s assertions.

70. The Tribunal rejected the claimant’s submission that he ought not to have been charged with gross misconduct for wilful delay of the mail but rather with major misconduct for unexcusable delay. The Tribunal was wary of revising the respondents’ decision in this respect in light of its decision that the respondents had

formed a reasonable belief that the claimant had been guilty of the misconduct with which he was charged. The Tribunal concluded that to succeed on this basis the claimant would have to have demonstrated that the respondents’ had an insufficient basis for that reasonable belief and this was not the case here.

71. Accordingly the Tribunal concluded that the dismissal of the claimant was fair and the claim must fail.

Chairman:

Date and place of hearing: 24-25 June 2010, 1 July 2010, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Jordan v Royal Mail Group Limited [2010] NIIT 07160_09IT (29 September 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/07160_09IT.html Cite as: [2010] NIIT 7160_9IT, [2010] NIIT 07160_09IT

Industrial Tribunals Northern Ireland Decisions