A Clarke v Katmex Ltd: 2501386/2020
JUDGMENT
[1]The Claimant’s claim of unfair dismissal is not well-founded and is dismissed.[2]The Claimant’s claim of wrongful dismissal is not well founded and is dismissed.REASONS
[1]On 5 March 2022, Mr Andrew Clarke was summarily dismissed for gross misconduct by his employer Katmex Limited following an accident in the workplace in which he suffered injury.[2]Katmex is in the business of metal fabrication. Mr Clarke worked for Katmex as a welder. On 13 January 2020, he was carrying out welding operations on a large frame, which was intended ultimately to become part of an excavator. The frame was suspended from a device known as a manipulator, the purpose of which is to enable the frame to be moved into a variety of positions so that it may be worked on conveniently, when it fell off and struck Mr Clarke. Katmex carried out an investigation into the causes of the accident. That investigation concluded that the accident occurred due to unsafe practices on the part of Mr Clarke. Following a disciplinary process, Katmex decided that this was gross misconduct and summarily dismissed Mr Clarke.[3]By this claim Mr Clarke seeks compensation for unfair and wrongful dismissal. Representation[4]The Claimant was represented by Morgan Brien of counsel. The Respondent was represented by David Greene also of counsel. At the outset I must express my indebtedness to both representatives for the assistance they have given me in reaching this decision. While the legal issues are relatively familiar and straight forward, I make no secret of the fact that aspects of this case have troubled me. I have been enormously assisted by counsel, each of whom bore my interruptions and questions with good grace and humour and always provided helpful submissions in response to my enquiries. The parties’ respective cases[5]The Claimant’s case is that his dismissal was procedurally and substantively unfair, that he was dismissed simply because he was involved in an accident and because there was an accident it must have been his fault in the sense of being caused by misconduct. Mr Brien argues that the matter was pre-determined and prejudged, specifically by Katmex’s disciplinary officer Mr Byrom and managing director Mr Mitchell. He suggests that the dismissal was procedurally unfair because Mr Clarke was never told what allegations of misconduct he faced and because he was not able to participate effectively or meaningfully in any investigation. He says the decision was substantively unfair because there is no evidence on which Katmex could conclude Mr Clarke had done anything wrong.[6]For its part, Katmex’s case is that this was a paradigmatic fair dismissal. Mr Greene argues there was a careful and detailed investigation of the accident which included a practical reconstruction and also examination of the CCTV; that witness statements were taken; and that all of the evidence was methodically and critically analysed. The considered conclusion was that the accident resulted from three aspects of misconduct on the part of Mr Clarke: incorrect clamping, climbing on or around the part and placing himself in a position of danger. Further, suggests Katmex, Mr Clarke’s own evidence shows that he understood from the accident report what was alleged against him.[7]If I am against Katmex on the fairness of the dismissal, Katmex asks me to make a Polkey deduction and a finding of contributory fault, in each case of 100 per cent.Relevant law
[8]The parties are agreed as to the relevant law. It is trite that, to dismiss fairly for misconduct, Katmex need only have a genuine and reasonable belief that Mr Clarke was guilty of the misconduct (British Home Stores Ltd v Burchell [1980] ICR 303, EAT). I must be satisfied that—(1) Katmex believed Mr Clarke to have been guilty of the misconduct;(2) Katmex had in mind reasonable grounds to sustain that belief; and(3) those reasonable grounds were the result of a reasonable investigation.[9]The burden of proof in respect of the first is on Katmex; in respect of the second and third, the burden is neutral.[10]It might be thought that a finding of a fair summary dismissal will automatically justify rejection of the claim of wrongful dismissal on the same facts. But this is not necessarily the case. The statutory right not to be unfairly dismissed is laid down by section 98 of the Employment Rights Act 1996. However, that is a different test to that for a contractual claim of wrongful dismissal. In a wrongful dismissal case, the test to be applied is laid down by common law and requires the Tribunal itself to determine whether Katmex has established that Mr Clarke acted in repudiatory breach of contract so as to entitle Katmex summarily to dismiss him. The Tribunal’s obligation to determine this question is not one that is simply “parasitic on the employer’s findings”. The Tribunal has to evaluate the evidence for itself and reach its own conclusions as to what took place.The evidence
[11]I heard evidence over three days from Mr Clarke himself, from Katmex’s Mr Huxley who carried out the investigation, from its Mr Byrom who carried out the disciplinary hearing, from its Mr Cranston who provides Katmex’s HR function and from its managing director Mr Mitchell.[12]I also considered an extensive bundle of documents which included the accident investigation report produced by Mr Huxley and contemporaneous correspondence between the parties.[13]I listened to recordings and read transcripts of the entirety of the disciplinary hearing and the subsequent appeal.[14]Finally, I viewed extensive CCTV of the accident itself and a period of time about 90 minutes prior to the accident.[15]I am concerned about the extent to which I can rely on Mr Clarke’s witness statement evidence. It is apparent that that witness statement in no sense is a statement in Mr Clarke’s own words. He did not write it or dictate it. It was the production of his lawyers and my impression was that the contents were what they thought should be in the witness statement more than they were his evidence. I say this for several reasons. First, Mr Clarke told me as much: the witness statement was prepared by a paralegal and he signed what was given to him; he told me that he is not one for words and typing. Second, having met and heard from Mr Clarke at length, there is no way the contents of the witness statement in any way resemble what I would expect Mr Clarke to say and what he did say in his oral evidence. Third, Mr Clarke repeatedly contradicted the contents of his first witness statement in his oral evidence:(1) whereas paragraph 6 recounts how he received the letter inviting him to the disciplinary hearing together with its enclosures—particularly the accident investigation report and CCTV footage—in his oral evidence Mr Clarke denied having received those things and did not backtrack until confronted with the witness statement;(2) whereas in paragraph 22 he states that Mr Byrom clearly believed he saw Mr Clarke standing on the part in the CCTV, in his oral evidence he resiled from that concession;(3) whereas in paragraph 33 Mr Clarke states that everything prior to a certain letter had been sent by email but that letter was sent by post—the inference being that Katmex was doing something underhand—in oral evidence he said he had received everything by post and email;(4) whereas in paragraphs 34 and 35 Mr Clarke comments in detail on the contents of the short statement from Mr Crosby, twice in oral evidence he denied he had ever seen that document.[16]These might be more or less significant matters but they do nothing to reduce the unease I feel about Mr Clarke’s written and oral evidence.[17]There is a further problem with Mr Clarke’s written evidence. His schedule of loss suggests that he has been unemployed since dismissal. That may have been true when the schedule was produced in August 2020 but it was not true at the date of this hearing, notwithstanding the schedule calculates a claim for future loss of earnings on a no job basis. Mr Clarke did nothing to correct the impression given by his claim that he has not worked since being dismissed. That is a matter which any honest and conscientious Claimant would have been anxious to clarify at the outset and certainly before giving evidence. It is a matter which at the latest ought to have been raised in supplemental questions before Mr Clarke was cross-examined. That it was revealed that Mr Clarke has been extensively employed since his dismissal from the employ of Katmex came out by accident and no thanks to him.[18]Nor did I find Mr Clarke to be an entirely straight forward witness. I have referred to the moments above in respect of which his oral evidence did not match his witness statement evidence. There were other aspects of his evidence which caused me to question the reliability of what he said. For instance, his suggestion that dates for a disciplinary hearing were being sent to him, in his words, “deliberately to prevent me organising a union rep” struck me as betraying an inability to view the situation objectively just as much as his suggestion that nobody at Katmex could conduct a disciplinary hearing without being biased or his criticism of the occupational health nurse that she would say anything because she was in the pay of Katmex. In his words. “anyone working for Katmex would be incapable of listening to my case fairly”. Such an approach reveals an imbalance going beyond ordinary partiality.[19]It is also fair to observe that in listening to the disciplinary hearing and appeal hearing, I observed Mr Clarke to be aggressive and argumentative, to take a barrack-room lawyer tone and approach. I do not set too much store by this because I can well understand that some people respond to stressful situations such as a disciplinary hearing with an aggressive and confrontational approach, leading to escalation of the problem rather than solution. It also strikes me that the approach of Mr Mitchell to the appeal hearing was so astonishingly poor that Mr Clarke hardly can be faulted for showing his frustration.[20]One thing I do not set any store by is Mr Clarke’s coy attempt at the appeal hearing to negotiate a monetary settlement. At first it seemed to me there was much force in Katmex’s criticism that the appeal was a sham and an abuse of the Tribunal’s process created by Mr Clarke for the purpose of strong arming money out of Katmex. I do not think that is right however. The appeal took place an unusually long time after the dismissal. In the meantime these proceedings had been issued and not unnaturally or improperly there had obviously been settlement negotiations; and moreover, everyone had moved on; Mr Clarke had another job by then. I will say more about Mr Mitchell’s approach to the appeal later, but to put it at its best, he had almost no understanding of why Mr Clarke had been dismissed nor what the point of an appeal was, presumably because he had not been adequately briefed by Mr Cranston. I am not surprised the course of the appeal went the way it did.[21]For these reasons, I am highly cautious about relying on Mr Clarke’s evidence where it is not agreed or the subject of corroboration. Had Mr Clarke been permitted by his lawyers to give his evidence in his own words, it may have been more compelling, no matter if inelegantly expressed; as it stands, it is weak and unpersuasive.[22]Mr Huxley and Mr Byrom struck me as honest and thoughtful witnesses who were doing their best to assist me. Mr Byrom in particular seems to me to have been determined to do a proper and full job of the disciplinary hearing and I have no doubt grappled with the consequences of his decision for all concerned.[23]I am inclined to accept the evidence of Mr Cranston and Mr Mitchell although not without hesitation and some caution. My problem with those two witnesses is not so much their evidence or the way they gave it as Mr Mitchell’s poor understanding of the purposes the appeal which he heard. Mr Mitchell is the owner and director of Katmex. A certain intelligent sophistication may be expected of him but it was found wanting. Having listened to and read the transcript of the appeal and having also listened to Mr Mitchell give evidence and having myself asked questions of him, it was clear to me that he did really understand what he was doing at the appeal. He seemed to think that the only point of the appeal was to receive new evidence that had not been available at the earlier disciplinary hearing. He expressly disavowed any notion that the purpose of the appeal was to check that the original decision was the right decision or, at least, was not a wrong decision. I attribute that in significant part to Mr Cranston who provided Katmex’s HR function and who might be expected to have briefed Mr Mitchell on what was going on.[24]The inadequacy of his brief was obvious from almost the very first question Mr Mitchell was asked in cross examination. When asked what did he understand the reason for dismissal to be, his answer was simply “on grounds of breach of health and safety”, an answer so vague as to demand the follow up it received, namely “did you know what the specific breach was?” a question which was met with an even vaguer answer: “As I went through the notes I got a better understanding. The investigation, the disciplinary procedure carried out by Andrew Byrom, and the correspondence.”Findings of fact
[25]Mr Clarke is a very experienced welder.[26]He was employed by Katmex as a welder from 24 August 2015. His duties included welding large frames which would become part of an excavator. The frames were at least as large as a car bonnet and weighed over half a metric tonne. In the course of his employment he welded at least 40 of these frames. In order to assist him, there was a large tool called a manipulator, the purpose of which was to hold the frame in space and to enable it to be manoeuvred into a multitude of different positions so as to facilitate access for welding. When mounted in the manipulator and raised into a vertical position, the frame might be as much as three metres high.[27]While they are being manufactured, the frames are fitted with temporary stiffener bars. These are simply tack welded in to place. They are not part of the structure of the frame. Their purpose is to prevent distortion of the frame when it is moved or when it is subject to the intense heat that arises from welding.[28]In 2016 Mr Clarke was party to a toolbox talk about the use of manipulators. This identified several risks. Operators were advised to stay clear during movement of the manipulator.[29]In about 2018 there was an incident involving one of these frames. Mr Clarke had started the job of welding it up but when his shift finished his work was taken over by a Mr Crosby. The frame slipped off the manipulator and ended up on the floor. It transpired that the frame had been clamped to the manipulator by its stiffener bars. Mr Crosby was asked to reclamp the frame to the manipulator using the body of the part; Mr Huxley then took photographs which were incorporated in a clamping technique document.[30]That clamping technique document was produced following the 2018 incident. It showed that two of the three clamps should be attached to the frame itself and not to the stiffener bar. Although it is not clear whether there is a written record of this new instruction being given to Mr Clarke, I am satisfied that it was. It seems that Katmex had a system of toolbox talks and the instruction was produced for just such a talk. It also seems likely to me that the incident would have generated some interaction between Mr Clarke and his supervisor and between Mr Clarke and his colleagues.[31]In early-2019 there was another toolbox talk about general safety to which Mr Clarke was party. This made clear that employees should never stand, walk or move under a suspended load. That is exactly what the frame is when hung from the manipulator. The point is quite an obvious one and would be apparent to any experienced welder.[32]Mr Clarke was involved in an incident of serious misconduct in spring 2019. Within the workplace he showed threatening behaviour towards another employee and immediately outside the workplace there were fisticuffs. Following a disciplinary meeting on 7 May 2019, Mr Clarke was given a final written warning. The warning stated, “further misconduct of any kind within the time scale above [which was one year] is likely to result on further disciplinary action under the Disciplinary Procedure, which could lead to dismissal”.[33]On the evening of 13 January 2020, Mr Clarke was engaged in welding a frame on a manipulator. He clamped the frame to the manipulator using only its temporary stiffener bars. The welding operation is a long process taking over an hour. Immediately before the accident, Mr Clarke was sitting close to the manipulator and frame and operating the manipulator. The manipulator was in the vertical position. Mr Clarke rotated the manipulator through 90 degrees. He then adjusted the height of the manipulator. As he did so, the frame fell from the manipulator and struck him, causing him serious injury.[34]Almost immediately afterwards, Paul Huxley carried out an investigation report. That investigation was carried out in a structured and methodical manner. Mr Huxley considered CCTV of the accident itself and Mr Clarke’s work in the hour or so before the accident. He asked for and obtained a statement from Mr Clarke and from others who were on the shop floor at the time.[35]He identified relevant safety briefs including the toolbox talks I have referred to above.[36]Mr Huxley even carried out a reconstruction.[37]Mr Huxley’s conclusion was that the accident was caused by three failures on the part of Mr Clarke:(1) poor clamping technique: clamping the part to the manipulator using the stiffener bars rather than the part itself.,(2) climbing or bearing weight on the frame while it was attached to the manipulator, thus weakening or stressing any clamp, and(3) Mr Clarke positioning himself under the load while operating the manipulator.[38]These are the clearly stated conclusions of his accident report.[39]Mr Clarke was invited to attend a disciplinary meeting. The letter inviting him alleged that he had committed a serious breach of health and safety on 13 January 2020. The letter did not state what the breach was but it included and referred to the accident investigation report.[40]The disciplinary meeting eventually took place on 2 March 2020. Mr Clarke was accompanied by his trade union representative. The meeting was conducted by Katmex’s Andrew Byrom. The meeting took about three hours. Much of this was taken up with a discussion about whether or not Mr Clarke could be seen in the CCTV to be climbing on the frame while working on it. At the end of the meeting, Mr Byrom informed Mr Clarke that he would be dismissed. That decision was communicated by letter of 5 March 2020. The letter states, “the reason for your summary dismissal is due to your breach of health and safety, in that you were deemed to be working in an unsafe manner prior to your accident”. No particulars were given beyond that.[41]Almost immediately, Mr Clarke lodged an appeal. His appeal was on three grounds. First, that dismissal was too severe. Second that he did not believe his actions constituted a breach of health and safety rules. And third that he followed the procedures that were in place at the time.[42]The appeal was lodged just as all normal ways of working were cast out of the window by the reaction to the outbreak of Covid-19. Within seven days of the appeal being lodged, Katmex offered a remote hearing. Ironically—given this hearing has been conducted remotely—Mr Clarke was not satisfied with that and insisted on an attended hearing. I do not see why an attended hearing could not have taken place immediately but, be that as it may, the parties were content to wait. Certainly it was not Mr Clarke who chased things up. On 22 September, it was Katmex that wrote to Mr Clarke inviting him to give a date and time which would be convenient.[43]There was much coming and going and eventually on 18 May 2021 the appeal hearing took place. Mr Mitchell, Katmex’s managing director, conducted the hearing, which was attended by Mr Clarke and his union representative. The appeal hearing did not go smoothly, largely, it seems to me, because Mr Mitchell did not know what the purpose of the appeal hearing was nor how to conduct it. He seemed to think it was confined to the reception of new evidence and he adopted a legalistic approach to Mr Clarke’s three stated grounds, which were plain enough. Mr Clarke for his part repeatedly asked what he had been sacked for without receiving any kind of satisfactory answer. In the end, the appeal was dismissed but not before Mr Clarke had stated that he did not want his job back, did not want the findings against him overturned but did seek a monetary settlement.Discussion
[44]I do not doubt that Katmex had a genuine belief that Mr Clarke was guilty of misconduct. That is, placing himself too close to the manipulator while operating it, using a poor clamping technique when affixing the frame to the manipulator and also climbing or leaning on the part while welding.[45]My reasons are as follows. First, that is the evidence of their witnesses and I accept that evidence, particularly Mr Byrom’s. He was very clear: he regarded Mr Clarke’s position under the manipulator as unsafe and the principal wrong, with climbing on the part and poor clamping as subsidiary but contributory factors. Second, that is consistent with the contemporaneous documents, in particular the accident investigation report. Third, although he has formally resiled from any concession, Mr Clarke appeared in his written evidence to accept that Mr Byrom—who was the decision maker—genuinely believed him guilty of misconduct, particularly in relation to climbing on the part.[46]It has to be noted that Katmex’s contemporaneous articulation of its belief was somewhat inadequate. Nowhere did Katmex translate the accident investigation report—which had been produced primarily with a view to Katmex’s obligations to report to the Health and Safety authorities—into particulars of misconduct. And it is clear from the transcript and recording of the appeal hearing that if Mr Mitchell had any idea of what breaches of health and safety rules Mr Clarke had committed, he was incapable of expressing it. This does not mean that Katmex’s and particularly Mr Byrom’s belief was not genuine, however. The fact that I am unimpressed by Mr Cranston’s “administration of the correspondence”—to use his words—or letter writing—to use plain English—does not deflect me from my conclusion. Moreover, while the appeal was unsatisfactory in some ways, the fact is that it took place over a year after the dismissal, by which time everyone, not least Mr Clarke, had moved on.[47]Nor does Mr Clarke postulate any other reason for his dismissal. There is no evidence at all that something else was afoot. He expressly accepted in cross examination that Mr Byrom was a stranger to him with no axe to grind. It has not been suggested that Mr Clarke was being made a scapegoat in order to deflect criticism of Katmex’s health and safety standards by the authorities; nor has it been suggested that the dismissal was a reaction to Mr Clarke’s stated intention to pursue a personal injury claim.[48]Finally, it seems to me there is nothing inherently unlikely in the genuineness of Katmex’s belief that Mr Clarke was guilty of the misconduct.[49]I also am of the view that Katmex had in mind reasonable grounds to sustain its belief. First, it seems to me that the three wrongs identified are each misconduct properly so-called. All three of them in my view ought to have been obvious to an experienced welder such as Mr Clarke without needing to spelled out to him. Standing where a halftonne part might fall should it slip off the manipulator that is holding it up, while operating that manipulator, self-evidently is unsafe. It had been the subject of guidance and there were markings on the floor, albeit they were worn. The whole point of the manipulator control being on a long wire was so that the manipulator might be moved from a distance.[50]I am reinforced in this view by Mr Clarke’s claims from the outset that the accident occurred after he had approached the manipulator to commence welding. Obviously welding has to be done in close proximity. In my view, Mr Clarke gave that explanation because he well-knew that he should not otherwise have been so close to the manipulator. It is not an explanation that I accept. It is clear from the CCTV that Mr Clarke was sat near the manipulator operating it when the accident occurred: he was not approaching it from a safe distance about to commence welding. His explanation was an exculpatory but false explanation.[51]Likewise, it is apparent from Mr Crosby’s short statement, from Mr Huxley’s evidence and from general knowledge that affixing a half tonne part to the manipulator by temporary stiffener bars which were merely tack welded into place is unsafe. This would have been apparent to an experienced welder such as Mr Clarke. If this was Mr Clarke’s practice, it is regrettable that he was not picked up on it before the accident happened and it may be that Katmex’s health and safety standards are not so robust as it would have me believe.[52]Mr Clarke gave evidence that he extended the tack welding on the stiffener bars in order to strengthen their attachment to the part. I do not accept that evidence. No such strengthening was found by Mr Huxley in his investigation report, which notes that the lower stiffener bar was held in place by only two 40mm tacks on each; and had it been Mr Clarke’s practice no doubt it would have caused consternation when the stiffener bars came to be removed. In itself, however, this claim connotes a recognition on Mr Clarke’s part that without more the stiffener bars are not apt to support the job, an acknowledgment that Mr Clarke was doing it wrong, as it were. The accident happened because the tack weld on the lower stiffener bar gave way.[53]Finally, climbing on the job obviously is unsafe. I can conclude that much from the fact that a great part of the disciplinary meeting was taken up with Mr Clarke refuting that he had climbed on the job.[54]So if these three things were misconduct, did Katmex have grounds for concluding they had occurred? The short answer is: yes. The CCTV clearly shows Mr Clarke in dangerously close proximity to the manipulator immediately before the frame fell. The CCTV does not at all support his claim that he was walking towards the manipulator and just about to commencing welding operations when the accident occurred. He was not. When the accident occurred, he was sitting near the manipulator and operating it; he was not moving towards the manipulator at all.[55]I myself cannot be sure whether the CCTV shows Mr Clarke climbing on the job or leaning on the job in the hours before the accident, but nor can I say that it certainly does not. Mr Huxley and Mr Byrom had the advantage of complete familiarity with what they were looking at. It was certainly open to them to conclude that the CCTV showed Mr Clarke climbing or leaning his weight upon the frame while welding.[56]As for poor clamping technique, Katmex had only to compare the aftermath of the accident—in which the lower stiffener bar remained clamped to the manipulator, severed from the frame to which it had been tack welded—with its instructions as to proper clamping technique. Those instructions had not been followed. Mr Crosby’s statement was not available at the time of the disciplinary meeting but it tends further to suggest that Katmex’s conclusion was reasonably arrived at.[57]So what of the investigation. Was it a reasonable investigation? Paragraph 5 of the ACAS Code of Practice on Disciplinary and Grievance Procedures gives authoritative guidance on investigations: It is important to carry out necessary 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.[58]To criticise Mr Huxley’s investigation is to adopt a counsel of perfection. There are things which he could have done better. In particular, he could have re-enacted the CCTV so that the precise position of Mr Clarke relative to the manipulator could have been measured. That is a very slender criticism. More significant to my mind is his open-ended request to Mr Clarke simply to produce a statement for the investigation without giving him any real guidance as to what it should be about and, in particular, without asking him to talk through the CCTV. Again, this is a relatively small criticism. The CCTV to an extent speaks for itself; and Mr Clarke clearly did not want to be bothered by his employer after the accident; and it may be said that an investigator should not lead witnesses.[59]There are other aspects of the investigation which are commendable. The scene was well documented in photographs. Appropriate health and safety instructions were identified. All relevant witnesses were asked to give statements (although the poor quality of such statements reveals that that is a somewhat pointless exercise). The carrying out of a reenactment provided substantial insight into what actually happened. The investigation was thoughtful and considered and carried out against a reasonable matrix of check-factors. The outcome of the investigation is well-reasoned and clearly stated.[60]Nor did Mr Brien for Mr Clarke really impeach the investigation other than to criticise the absence of an investigation meeting. But such a meeting is not always required and nor is it obvious that here it would have added much.[61]Mr Clarke’s criticisms of the process focus chiefly on Katmex’s failure to particularise the allegations against Mr Clarke. The ACAS Code of Practice provides at paragraph 9: If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.[62]The requirement is that “on a fair and common sense reading of the relevant documentation, the employee could be expected to know what charges he or she has to address”.[63]The letter inviting Mr Clarke to the disciplinary meeting on 22 January 2020 meets this requirement, by cross-referring to the investigation report. That report contains a concise summary of the allegations, after the necessary evidence and analysis.[64]There is no evidence that Mr Clarke was mislead. His focus in the disciplinary meeting was on the allegation of climbing and on a legalistic critique of the absence of some written procedure setting out that which I have found ought to have been obvious to him and was in fact obvious to him. At no time did he ask for time to consider anything which had only just become apparent to him. And I am satisfied that Mr Byrom approached his task with great care and responsibility.[65]I do not find that the Katmex’s failure separately to list the substance of charges against Mr Clarke renders its investigation substantively or procedurally unreasonable. It is correct that the letters summoning Mr Clarke do not even come close to the level of particularity required. To say that Mr Clarke is alleged to have committed a serious breach of health and safety is to say nothing meaningful at all without going on to say what the breach consists of. But the letter included and referred to the accident investigation report and that document could not be clearer in its conclusions. It was abundantly clear from the accident investigation report what was alleged against Mr Clarke. And it is equally clear from the transcript and recording of the disciplinary meeting that he understood what was alleged.[66]The appeal was less than satisfactory for the reasons I have alluded to but it was also over a year after the dismissal by which time Mr Clarke had long since moved on to other work. The delay was not attributable to fault on the part of either party. Mr Clarke made clear that he did not want his job back and did not even want the finding against him overturned. What he wanted—entirely legitimately if misguidedly—was a cash settlement. I do not find that the deficiencies in the appeal render Katmex’s process substantively or procedurally unreasonable.[67]Finally, the sanction of dismissal plainly was open to Katmex. Health and safety is of the utmost importance and employees in the all fields but especially those engaged in heavy industrial processes can expect safety-related misconduct to result in the most severe sanction including summary dismissal. That is also what Katmex’s employee handbook states. But even if that were not so, I agree with Mr Greene that having received a final written warning for misconduct but seven months previously, Mr Clarke could expect any subsequent misconduct of any nature whatsoever to result in his dismissal.[68]It follows that I am satisfied that Mr Clarke’s dismissal was fair: substantively and procedurally. Wrongful dismissal[69]Whether or not Mr Clarke’s dismissal was wrong is a slightly different matter but I will deal with it relatively briefly. I am satisfied for the same reasons as Katmex was entitled to be satisfied that Mr Clarke was guilty of the alleged misconduct and that dismissal was the appropriate sanction. It is my finding that there was no contractual repudiation by Katmex.Disposal
[70]The claim is dismissed as not well-founded. ...................................................... EMPLOYMENT JUDGE RODGER Judgment signed by