Mr J MacLeod v Royal Mail Group Ltd: S/4102047/2017
JUDGMENT
their position is that he was dismissed fairly by reason of gross is resisted. EMPLOYMENT Employment Case No: S/4102047/17 OF THE EMPLOYMENT The respondentsREASONS
Tribunal is that the claimant was not unfairly Judge: TRIBUNALS Laura Doherty (SCOTLAND) accept that the claimant TRIBUNAL Solicitor Mr. A Gibson - Represented Respondents In Person Claimant by: was 6 5 4 3 For the respondents with the ACAS Code. an increase to the compensatory contributory conduct. It would also have to consider whether there should be Dayton Services Ltd (a Polkey reduction), or on the basis of the claimant's be reduced to the principles to be derived from the case of Polkey -v- A E doing so, it will have to consider whether any compensation In the event the claimant succeeds, the Tribunal will consider remedy, and in unfair in terms of Section 98(4) of the Employment Rights Act 1996 (ERA). reason for dismissal, it will have to consider whether dismissal Thereafter, dismissal. T ribunal to determine is whether the respondent’s The reason for dismissal Terry Bryson, GPO and colleague of the claimant, David Cooper, GPO a colleague of the claimant; Elizabeth McGill, GPO and a colleague; The claimant Ms Collette Walker, an Appeal’s Manager with Royal mail. Officer; Mr Ian Macgregor, Operations Manager with Royal Mail, the Dismissing procedure; (DOM) at Glasgow G13, and the Investigating Ross MacDonald who at the relevant time was a Delivery Office Manager in the event the Tribunal is satisfied there was a potentially fair gave evidence on his own behalf, and led evidence from; evidence was given by:- is in issue and therefore the first issue for the award on the basis of a failure to comply establish a fair reason for Officer in the disciplinary awarded should was fair or 12 1 1 10 9 8 Findings in Fact 7 first line manager or another manager must maintain contact. is maintained, and when the case is passed to the second line manager the where an employee is suspended from work it is important that weekly contact The Conduct Policy provides for precautionary suspension, and provides that CMA”. Procedure Standards; the "Royal Mail Group Conduct Policf management The respondents The respondents statutory responsibilities, The respondents From the information before the T ribunal it made the following findings in fact. of 1 % of his earnings. respondents his net pay was £354.80 per week. It was also agreed that he was part of the is agreed that while in employment, his gross pay was £440.85 per week, and and the period between his dismissal, and commencement dismissal earnings are agreed, as are his earnings from his new employment, The remedy which is sought in this case is compensation. The parties agreed a joint bundle of documents. claimant and CWU representative. A statement was provided from Shaun McGhee, a GPO colleague of the Agreement pension scheme, into which his employers made a contribution of staff. These include the "Royal Mail - Our Code - Business have a number of practices and procedures in place for the recognise the CWU and UNITE as a trade unions. are a large organisation for the delivery of mail. Royal Mail Group and CWU and Unite - with a responsibility, and the "National Conduct The claimant’s pre in his new job. It including 1 7 16 1 5 14 13 The Code also provides a definition of intentional delay in the following terms:- delay of mail. exhaustive The Royal Mail Code of Business reduce the penalty. case. On appeal, the Appeals Officer can revoke or confirm the decision or The Policy also provides for an appeal, which is a rehearing of the disciplinary a conduct hearing. supplies him with any relevant document, and invites the employee to attend in terms of Policy); advises the employee of the conduct notification, considers what conduct is alleged against the individual (a conduct notification The second line manager then considers it to another manager, normally the second line manager. if he feels a major penalty is the possible outcome he must at that stage pass allegation is proven, the penalty is likely to be within the level of his authority; finding finds that there is a case to answer he must decide whether, if the finding meeting should take place. The Policy provides that in the event of a potential disciplinary issue a fact can result in prosecution” for a first offence; indeed intentional Where proven, such breaches of conduct can lead to dismissal, even the employee knowingly was deliberate with an intention to delay mail. may be considered as intentional delay is whether the action taken by proven, could lead to dismissal. The test to determine whether actions "Intentional list of examples of gross misconduct delay of mail is classed as gross misconduct Standards If the manager who conducts the fact the information delay is a criminal offence and (the Code) includes which includes intentional passed to him; which, if a non- and 20 19 18 subheading - “Royal Mail Delivery - Avoiding Delay” the following is to help all employees maintain standards of conduct. It provides under a between Royal Mail Group and CWU and Unite -CMA, The respondents customer complains because mail is not delivered timeously. The respondents can be subject to fines if they fail to comply with their regulatory standards. The respondents to the employee leaving the office for delivery. the basis of factual evidence. possible during the shift will be looked at individually within the unit on of opinion between the employee if agreement cannot be reached. The employee should be encouraged to see their union representative commencement have associated with the advice given to the employee, manager believes that assistance is not required, the decision, along When an employee around associated post boxes to enable USO compliance. should be taken, including the consideration discuss any problem and advise the employee what particular action possible before setting out on delivery. authorised time allotted, they should approach their manager as soon they may experience On completion of their preparation, where an employee believes that “ Prior to commencement access can also be subject to a financial penalty In the event a are subject to regulatory regime overseen by Ofcom, and with the daily traffic volume record. are party to a National to this of their delivery. has requested difficulty in completing their delivery within the record of delivery Such differences will be addressed prior and Instances where there is a difference and the manager about what is assistance Conduct Procedure may ask to see It will be for the manager to should of collection on delivery on delivery, the purpose of which The employee be recorded it prior Agreement but the can and to 25 24 23 22 21 to deal with the increased number of parcels so that these could be removed with mail sorting over the Christmas period; the employment of parcel drivers, included the implementation means of dealing with the increased volume of mail around Christmas. The Bearsden model traffic week is exceeded, particularly around Christmas. week, and is agreed with the CWU. Deliveries are modelled on ‘model traffic’, which is a traffic forecast for each and the time back. returned all of the COLOD mail, which includes a signature and the time out, the mail from the COLOD, the GPO completes which should be collected on the duty. On returning to the delivery office with Each duty comprises at least one COLOD (collection and delivery pillar box) measure walks ( loops). based on delivery points (GEO route) which an agreed tool with the CWU, to determining Each duty comprises for his own duty, prior to delivering it. individual GPOs. route is referred to as a duty and is identified by number. It is allocated to down (putting it into bundles) and delivering the mail on a particular route. A deliver mail. In broad terms, the GPOs duties involve sorting the mail, tying it The respondents time.” problem, the employee can contact the manager before the arranged not to be possible. full completion of delivery workload within the allocated time proves The employee and manager should agree a specified time to phone if the routes on a duty, the respondents office, where the claimant worked, employed A GPO would normally be responsible for sorting the mail employ a large number a number of loops where the GPO delivers mail. If it becomes obvious that the delivery may be a of IPS (Inward Primary Sorting) which helped During some periods of the year the of Postmen/women a form to confirm he has use a mapping system a number (GPOs) These of In to 31 30 29 28 27 26 loop to allow time to deviate for delivery of parcels and SDs. their loops, before driving to the next loop. More time was built into the driver’s the driver would then and pick the walker up when they had both completed including special deliveries and parcels. loop of his duty; the driver would then deviate in the van to deliver mail than the walker’s; the driver would drop the walker off, to deliver mail on a this pairing would work. and one was the walker. The purpose of this training was to demonstrate Tortoise and Hare was training of GPOs on pairing where one was the driver, which required to be delivered before 1pm. The Premium Products Brief was training on the delivery of special deliveries claimant had attended workplace learning sessions on all of these. Delivery operational and other aspects of their job. This includes training on “Correct The respondents the time of departure. A GPO should sign out in the morning before he leaves for delivery to record his duty. COLOD box, and he receives keys for the COLOD box before departing It is the responsibility to arrive before 1pm. deliveries (SDs) are the respondent's that he can deviate in order to deliver parcels, or special deliveries. The driver’s routes are designed to be shorter than the walker’s routes, so with the use of a van. One GPO is the allocated driver, and one is the walker. The respondents employ a system of ‘pairing' whereby GPO’s work together nightshift staff to help with the mail sorting. from the duties; and bringing staff in earlier than normal. They also employed of Mail; Premium provide of the driver in this pairing to collect mail from the The hare was the driver, whose route was shorter training Products and workplace premium product, which are guaranteed Brief and Tortoise The routes were designed learning and Hare". for GPOs, so that Special how The on for 38 37 36 35 34 33 32 address). delivery, prior to the 1pm deadline (however he delivered it to the incorrect also delivered 2016. duty 22. 12. The planned way of delivering mail was to do duty 12 first, followed by he worked alongside Mr Cooper and Mr Bryson, completing the duties 22 and approximately On 1 5 December Christmas pressure of mail. being added into duty 22. The revision had been put on hold because of the of implementing time expanded or amended the duty 22. The respondents were in the process "Revisions" number of years, been assigned delivery of mail on duty number 22. Through majority of that period at the Bearsden delivery office. The claimant has for a respondents The claimant, whose date of birth is 3 April 1978, has been employed by the would be delivered first. When Duty 12 and 22 were put together the plan for delivery was that duty 12 travel). Duty 12 was planned to take 3:53:09 hours (excluding travel). Duty 22 comprised 6 loops and was planned to take 3:57:41 hours (excluding The Duties are planned to a time span which is agreed with the Trade Unions. one on a walking route, and the other on a driving route. undertake delivery of the mail together but each delivered mail separately, This was practice generally employed by GPOs in a pairing; they did not On 15 December Mr Cooper had responsibility which had been carried out, the respondents as a GPO, from 18 June 2001. 5 weeks, which was caused by a shoulder injury. part of duty 12. Mr Bryson managed a Revision as at December 2016, which resulted in a walk the traffic volume was 12% more, than on 16 December 201 6 the claimant returned to work after an absence of delivering He has been employed for the deviated parcels, and he to deliver a special have from time to On the 1 5th of 41 40 39 45 44 43 42 The claimant and his partner completed duty 22, and a small part of duty 12. they could deliver some loops of duty 12. Mr Bryson indicated to Mr Lang at some point before leaving that he believed and he would be in touch. 12 with him. McGhee, left the office with Mr Bryson and took the special deliveries for duty The claimant, extreme position. the claimant to try to resolve the matter, and to understand prepared to do one duty that day. Mr McGregor advised Mr Prior to speak to Mr McGregor. to take advice from his line manager. disapproval of what the claimant was suggesting. position on his return to the office. Mr Prior, another DOM at Bearsden that he would be unable to deliver an entire duty. achieve some loops of a duty, it was extremely unusual for a GPO to suggest While it was not unusual for GPOs to indicate that they would not be able to he would get to duty 12 at all. unusual type of enquiry. much mail he was going to leave in (not able to deliver). Manager (DOM) Jamie Lang, approached On the morning paired with Mr Terry Bryson, who was allocated duty 12. On Friday 16 December 2016 the claimant was allocated duty 22. He was Before the claimant left Mr Prior told him to keep his phone on, having spoken He advised him the claimant of 16th December There was no resolution of the issue. The claimant told Mr Lang that he did not think that with his trade union representative, He spoke to the claimant and voiced his He went into his office and telephoned 2016 the Bearsden was advised by Mr Laing about the the claimant, and asked him how had said that he was only Mr Prior said he was going why he took this This was not an Delivery Officer Sean 51 50 49 48 47 46 Mr Bryson was also suspended. discussion. Mr Prior wrote to the claimant on 16 December 2016 with a record of that precautionary would decision to suspend the claimant and he was advised that the next meeting service which the respondents there was a temporary end, and he advised the claimant that from what he had told him, he believed At this point, Mr Prior decided to bring the discussion with the claimant to an traffic for that day was 35,000. Mr Prior advised the claimant that the model week was 28,000 items, and the confirmed there were no deviated parcels other than special deliveries (SD’s). work, and his preparing duty 22. In the course of the discussion the claimant The claimant was asked about his activity in the morning, when he started while his partner delivered a part of duty 12, at Drymen Road. he finished at 13:45 and that he then picked up a COLOD box for the duty finished duty and what he did after the finished the duty. addresses confirm the address of the special deliveries, which he did. SDs for duty 12 before starting duty 22. The claimant was asked if he could The claimant said that he had started his first loop at 10:45 but had delivered from the office and when he and his partner started to deliver the first walk. was off the following day. He was asked to confirm the times that he departed duty on time. In the course of the discussion the claimant confirmed that he with Mr Prior, to discuss events leading to him not being able to complete his On return to the delivery office the claimant was asked to attend a discussion establish were in Drymen Road. suspended. whether loss of trust and that this could affect the quality of provided The claimant was asked what time he was to customers. to resume Mr Prior took the The claimant said duty Two of the or to be 57 56 55 54 53 52 them. sometimes that when he worked previously builds in a delay and inefficiency. Mr MacDonald asked the claimant if he understood that delivering delivered on time and that he didn’t get any instructions from Mr Laing. did. The claimant he said no, but he just wanted to get the special deliveries Mr MacDonald it was to prevent SD failures as this had happened the day before. to starting the first walk he was due to start delivering; the claimant responded Mr MacDonald asked him why he delivered the SDs for the second duty prior duty, and Mr Laing did not respond. that Mr Bryson had asked Jamie Lang what to do with SDs for the second The claimant replied that there was no clear instruction not to do so. He said delivered SDs together, when a clear instruction had been given not to do so. confirmed Mr MacDonald December 201 6 and the preparatory work which he carried out before leaving. In the course of that interview the claimant was asked about the events of 1 6 bundle. Notes of his meeting with the claimant are produced at pages 33 to 46 of the Mr MacDonald met with the claimant and Mr Bryson on 22 December claimant and Mr Bryson. previously. delivery office as the claimant but had managed him approximately the DOM for Glasgow G13/14. The matter was referred to Mr Ross MacDonald, who at the relevant time was that these had been delivered he would do them alone, but no one ever asked him how he did Mr MacDonald was appointed as the Fact Finding Officer for the asked the claimant if this was something which he normally asked the claimant who delivered the SDs, and the claimant Mr MacDonald he would do it this way sometimes The claimant responded in a pair. He was asked why he did not work in the same “Yes” and said in this way 5 years 2016. and 60 59 58 63 62 61 mail. He asked him the claimant if he could justify leaving nearly a whole duty. to the mail traffic for Bearsden, which impacted on sorting and tying down the Mr MacDonald then took the claimant through a number of figures in relation recorded deliveries. claimant responded “No” but he had an abnormal amount of door chaps and the claimant confirmed “Yes”. He was asked if that was normal, and the delivery time each totalling 7.5 hours between them to deliver one walk, and Mr MacDonald asked the claimant if he was saying it took 2 people 3.45 hours until 10.50am. works, which caused 5 minutes delay. take longer than usual. MacDonald 22, the claimant responded anything between 2.30 hours to 2.45 hours. Mr MacDonald asked on a normal day how long it would take to deliver duty time. delay the mail. responded he could not disagree with this, but he did not intentionally do it to minutes the non-driver could have delivered a loop in that time. The claimant Mr MacDonald put to the claimant that if he was away delivering SDs for 20 taking to do the loops. hours/3 hours 15 minutes based on the day before, and how long he was claimant responded he thought it was quicker and 22 duty would take over 3 delivery work whilst the driver deviated to do the special delivery items. Bryson as a runner. Mr Bryson was the passenger and he confirmed that essentially were 2 people in the van; the claimant explained that he was the driver, and The claimant was asked to explain how the SDs were delivered when there Mr MacDonald asked the claimant why the non-driver was not carrying out asked him was there any issues in delivery that caused him to He said he made a decision that he thought was right at the The claimant said “No", he got a bit stuck with road He said he did not start his delivery he used Mr The Mr 66 65 64 69 68 67 claimant or Mr Bryson to deliver SD’s for the second duty first, and was he Mr Bryson would deliver the SD’s. Mr Laing said there was no conversation said this happened around 9.30am. claimant responded u it will be more than a loop, more like a full duty'. claimant which loop he was looking for assistance to deliver that day, and the he expected both of them to be ready and to have departed. claimant tie down the mail, which was later than it should have been. mail in. Mr Lang said he noticed that around 9.30am Mr Bryson helping the took place between himself and the claimant and Mr Bryson about leaving At the outset of the interview Mr MacDonald asked Mr Lang what discussions bundle. interviews. After interviewing the claimant, Mr MacDonald other witnesses needed to be interviewed. so that the details from the fact finding interview needed to be verified and claimant, and he wrote to him confirming this and giving the reasons for doing Following this interview Mr MacDonald decided to precautionary Davidson at this meeting. The back after 5 weeks off and not been offered a phased return to work/rehab. the expected standards. offer as to why his indoor performance and asked the claimant if he had any other explanations Mr MacDonald asked him how he justified such a long delay in one delivery, judgment based on how long the loops took to do the day before. The claimant said with the time it took to get ready and to go, and he made a claimant He interviewed Mr Lang, notes of this at pages 51 to 60 of the was accompanied The claimant said not being 100% fit and just being He was asked if he authorised by his trade union and outdoor performance with him about how the claimant and carried out other fact finding which he wanted to representative He asked the suspend the was below either the Mr Lang He said Mr 15 10 25 20 72 71 70 74 73 believed they could only manage one duty, means they were taking 8 hours did not have any deviated parcels. The fact that the claimant and Mr Bryson walk should only have taken 5 hours between them at the very most, as they duty holder and they have 8 hours between them to deliver the mail. duty. He said they were 2 experienced Mr Lang was asked why it was unreasonable just time wasting. experienced postman were driving around together delivering specials it was carried this out on his own if he thought they were at risk. He said that if two for the second duty first. Mr Lang responded “/Vo” that the driver should have were just trying to avoid SD failures, and that is why they delivered the SD's Mr Lang was also asked if it was reasonable that the claimant and Mr Bryson failures the day before. claimant had never asked him, and he said there were no special delivery to do with the SDs but had received no answer. Mr Lang responded that the Mr Lang was asked why he would say that he had asked the manager what one. an instruction not to deliver SD's. Mr Lang was asked why the claimant stated he wasn’t given a clear instruction because it wastes time. He was asked why it wasn’t acceptable built in after the first duty to deviate for SD's if he needs to. before and also the revision staff had been instructed that the driver has time responded He was asked if there was any doubt that this practice is not allowed, and he common practice, and he said “/Vo”. aware they were doing so, and responded “No". He was asked was this a that he believed as he was an experienced Mr Lang responded that claimant would not have needed that Mr Bryson had been counselled Postmen on the walk, and one is the Postman and he never asked for to deliver in pairs, and he said for the pair to deliver only one for this One 30 25 20 10 79 78 77 76 deviated to do special deliveries and left Mr Bryson to deliver mail. Mr Bryson clear instruction was given not to do so, and that the claimant should have Mr Bryson was asked why special delivery items were done together when a 12. delivery point, and he said “Yes”, in order to do the special deliveries the 1pm deadline. wanted to do the SD's for duty 12 first, as he was worried about them failing deliver his first letter on duty 22 until just after 10am as the claimant He was asked when he delivered his first letter. Mr Bryson said he did not Mr Lang what to do with special deliveries, and received no reply from him. December 201 6. In the course of that interview Mr Bryson said he had asked Mr MacDonald also carried out a fact finding interview with Mr Bryson on 22 ever raised any issues about special deliveries with him. passenger carries on with the delivery work. He denied that the claimant had second duty the driver cuts off to do them before 1pm and meantime the process was that they deliver the first duty and if there are SD's for the acceptable was asked about the practice of delivering SD's, and confirmed it is not an to the claimant and Mr Bryson who were looking to leave in a full duty. of the office but on his return, he was told by Jamie Lang that he had spoken meeting are at pages 56 to 60 of the bundle. Mr Prior advised that he was out Mr MacDonald welcome back meeting that he was okay and fit to return. Laing said the claimant had not asked for any assistance, and had said at the his indoor work because of his shoulder injury, and Mr Lang said “/Vo". Mr MacDonald asked if the claimant had at any point said he struggling claimant was adamant about this. they should have managed part of the other walk (duty 12) but that the slowed down to prove a point. He said that even Mr Bryson had agreed that for one walk. practice to deliver SD's in pairs. Mr Lang said that he believed this was deliberate interviewed He was asked if he had deviated on the way to his first Mr Prior on 4 January 2017. The notes of the He said it created inefficiency: and they in duty had with the He Mr 15 10 81 80 83 82 and was ready to go and was in good shape. have cleared it. He said he believed that because he was prepped in time, he could not control and if he had been out on his own he would probably have had to leave as much on the second walk. He was tied into something He said that he believed that if they had delivered duty 12 first they would not way round but he could not control this as the claimant was the duty holder. 2016. Mr Bryson was asked if he had any explanation for the events of 16 December he did not have any say in this, and he did deliver a bit of the second duty. partner. Mr Bryson was asked how he justified leaving a whole duty. He said confirm this. He was what delayed him, and he said he was waiting for his said no and that he was "champing at the bif to get out and Danny Prior could Mr Bryson was asked if there was a deliberate delay in their departure and he manage more. have time to touch duty 1 2. Mr Bryson said that he told Mr Prior that he could holder and he made the decisions to do walk 22, and said that we would not would have eaten into duty 22 as well. was excessive and he thought they should have done duty 1 2 first and then to him it took about 7.5 hours to deliver one walk. Mr Bryson agreed that that Mr Bryson was asked about the time it took to deliver the duty, and it was put taking into account the Christmas volume. responded "Yes”. When it that way. Danny Prior, but he said that the claimant was the driver and he wanted to do deliver special deliveries in this way, and he had been told this before by In the course of the interview Mr Bryson confirmed he had been told not to they had parcels to deliver. failing. said that the claimant's He responded that the believed the duties were delivered the wrong asked if he understood He said the previous day they had failed the 1pm deadline because He thought on this occasion it was the right thing to do decision to do it this way would prevent the SD's this build in delays and inefficiency, He said the claimant was the duty he 15 10 25 20 85 84 87 86 terms of the Code) were in the following terms:- letter of 17 January 2017, pages 61 and 62. The charges, or notification The charges were drafted on the same terms, and sent to the claimant the charges which he intimated both to Mr MacLeod, and Mr Bryson. Mr Macgregor considered the papers which he had, and thereafter formulated forwarded the papers to Mr Macgregor. impose matter should be referred for both employees After he concluded and the prep plan details. traffic volume of mail was 12% higher on the 15 th than the 16 th of December; had been delivered at 10:17am; the traffic summary report, which showed the two items for special delivery on 16 December 2016, which showed an SD and Mr Bryson had not signed in and signed out; the SD scanning details for signing out sheets for 16 December 2016 which demonstrated Mr McDonald also carried out some further investigations. “1.[2]more serious disciplinary contravention Friday 16 December 2016, which demonstrates for your 2nd duty, with the aim of delivering less mail outdoor on outdoor tasks, specifically by delivering Special Delivery items delivery on duty 12 by being deliberately unproductive It is believed contravention Friday 16 December 2016, which demonstrated indoor tasks, with the aim of delivering less mail outdoor on delivery on duty 12 by being deliberately unproductive It is believed that you intentionally his investigations, of our code of business standards. of our code of business standards. that you intentionally sanctions Mr MacDonald for his consideration, to manager with authority attempted attempted He considered behaviours to delay mail behaviours to delay mail that the on your on your and he in a the (in to in in 93 92 91 90 89 88 the office they would have no time to do any of duty 1 2. He said there were said it takes a lot of time to tie down duty 22. He thought by the time they left claimant responded that duty 22 was going to take in excess of 3 hours. He say that he had indicated In the course of the interview Mr McGregor asked the claimant if was it fair to 61 to 83. The notes of the claimant's McGregor's of around an hour and a half from the appointed time of the meeting, and Mr The claimant met with Mr McGregor on 20 January 2017. There was a delay he was advised his suspension was continued. advised he could be accompanied The claimant was asked to attend a meeting on 20 January 2017, and was to and including dismissal. regarded as gross misconduct The claimant was advised that if substantiated, Royal Mail Code of Business Standards. details, discussion notes of 16 December 2016, the traffic survey reports, prep plan In his letter to the claimant signing out sheets, the special delivery scanning details, and the 3. actually meeting with the claimant. contravention of our code of business standards” December with the aim of delivering COLOD box, which had already been passed earlier in the day, outdoor delivery on duty 12 by being deliberately unproductive It is believed that you intentionally tasks he would be leaving the whole of duty 1 2. The meeting with Mr McGregor are produced at pages 2016, Mr Macgregor specifically which could lead to formal conduct action up by a trade union representative. by agreeing less mail outdoor on Friday 16 demonstrates provided copies of any notifications attempted the collection behaviours to delay mail Meantime his would be on your initial of a in 97 96 95 94 would not have got to that duty until after 1pm and they would all have failed. was not something he normally did, it was just there were 9 specials and he practice. The claimant said he had never been told it was wrong. Mr McGregor asked if he accepted that delivering in this way was a wrong want this happening. that Danny Prior had said that it could lead to conduct action and he did not had failed to the previous day. This had also happened the previous year and first; when asked why, said Mr Bryson and David Cooper had said that an SD duty first, and said "No”. He said he thought it was important to get them done The claimant was asked was it normal practice to deliver SD's for the second 12 first, and he confirmed it was him, and that his partner had agreed to it. The claimant was asked who made the decision to deliver the SD's for duty duty, won’t be done. loops they would need to leave; the claimant told him duty 12, or the second and agreed to do duty 22. The claimant said that Mr Lang asked if there were Mr McGregor asked him was he saying that he and his partner had discussed van and to go with the plan to start the duty. and he said he didn’t believe so. They only agreed to put the duties in the said he did not think so. He was asked if he discussed this with his partner delivered 3 or 4 more loops and asked him to comment on that. The claimant the van. Mr McGregor put to him that Mr Bryson reckoned that he could have said he did not recollect discussing that but he did recall putting both duties in he would be able to deliver more, and asked if that was correct. a lot better and 1 2. Mr McGregor put to him that his partner Mr Bryson thought duty 12. He said it was his decision to concentrate on duty 22 as he knew it The claimant was asked who made the decision to not deliver the duties of loops of duty 22. 3 people on the same duties the day before, and David Cooper had done 3 He said it 15 10 100 99 Station Road. clear. dropped Mr Bryson off that he realised that he had boxes back on duty 12 to from COLOD boxes, it was his partner who did this and it was only when he asked him to comment on this. The claimant said he was not used to collecting inefficiencies when Mr McGregor then put to the claimant that by not collecting the COLOD boxes out of the way first. stressed out as time was ticking by and he decided there and then to get them comment. reduce the amount of delivery time he had to do outdoors, and asked him for delivering the SD's together the claimant deliberately Mr McGregor taking more time to tie down, plus over 3 hours to do duty 22. before he felt that he could not do duty 12. He was well aware that he was had most of the duty to tie down, and calculating that that he had to leave so much mail. The claimant said it was because he In the course of the interview Mr McGregor asked the claimant why he stated done quickly. responded he could not explain, he just thought it was important to get them them done as quickly as possible. thought the delivery of SD's was efficient and the claimant said "Yes” to get specials done as quickly as possible. there was a bundle to give Mr Bryson. He thought it was important to get the soon as possible. moment’ decision. The claimant he did not drop Mr Bryson and let him get started with mail delivery on foot. it was the driver’s place to break off to deliver the SDs, and he asked him why Mr McGregor put to him that as a driver, he had time booked into the duty and He confirmed there were 2 boxes, one in Drymen Road, and one in delivering The claimant said it was a spur of the moment decision; he was to reduce the amount of delivery time he had outdoors, and said he did not have a clear plan and it was a “spur of the He was asked if he had ever collected boxes, and confirmed put to the claimant in the course the SD's He said he had no idea of the lay out the van and where He said he thought it was important to get them done as to 50 Station Mr McGregor asked the claimant if he He was asked to explain this and road, he deliberately of the interview what happened built inefficiencies built in that by the day to 104 103 102 with Mr McGregor. managers, which he had omitted to send the claimant prior to his interview fact finding interviews which had taken place with Mr MacDonald notes to confirm their accuracy. After this interview Mr McGregor sent the claimant a copy of the interview comes to work with a good attitude, and work well with others and works hard. and then on another day not bother. He was not that type of person and he of wilful delay. He said he would not on one day not work as hard as he could and had worked to high standards and that he understood standards to the claimant. Mr McGregor then put various points in the respondent’s accepted that he had extensive knowledge of the Bearsden area. and delivered regularly in that area, albeit on a variety of duties. The claimant confirmed with the claimant that he worked in the Bearsden Office for 15 years usually collect the boxes in Station Road and Drymen Road. earlier in the day. He was asked why he did not clear the boxes when he was in Station Road did the box. and it was decided that Mr Bryson would deliver mail for Drymen Road as he knew that he had to go back to collect them. He said that he finished at 1 5.45 back to collect the COLOD boxes later in the day. The claimant said that he asked the claimant why he delivered the SD's to Station Road and then went said that 50 Station Road is a few 1 00 yards from the box. was asked if this was near the COLOD box at 20 Station Road. The claimant ran up and he turned the van and went to Ledcarmach to deliver specials. had delivered the SD's to 50 Station Road. The claimant said that Mr Bryson given, and he was given keys as he left. Mr McGregor asked the claimant who box keys. he had collected them in October. He said there was one spare key in the pouch which you were The claimant said it didn’t register with him as he didn’t The claimant said that he had worked for 1 5 years He also sent the claimant the notes of the He was asked who collected the COLOD the repercussions code of business Mr McGregor Mr McGregor and the two He 15 10 25 20 1 06 1 05 108 107 1 09 approached him to review this assessment, and Mr Prior answered “No”. had the claimant was built into the loop to enable him to do this. that it was the driver’s responsibility for delivering SDs, and they all confirmed that GPOs in Bearsden were aware confirmed that as far as they were aware GPOs were aware of the process correct procedure was not to do them in pairs in the van. All the managers Bearsden were aware of the process for delivering SDs and if staff knew the Mr McGregor also asked the delivery managers if they were aware if staff at employee to manage. statements contained comments which suggested the claimant was a difficult not reflect how they considered statements to the effect that the claimant’s description of how he worked did was a true reflection of how he worked. at the Bearsden office asking if they accepted that the claimant's Lang, Mr Arnott and Mr Falconer, who had all been managers of the claimant investigations, Having interviewed suspension. Mr McGregor wrote to the claimant on 2 February continuing his precautionary he could correct the mistake for not collecting from the COLOD boxes earlier. without delay. Both Mr Bryson and he worked past their time that morning so another manager, clamant making additional comments. The claimant received these, and wrote to Mr McGregor on 1 February 2017, Mr McGregor also asked Mr Prior if at any time prior to departing for the mail had been followed and he interviewed changed and he had performed the loops at a reasonable the claimant, Mr McGregor decided to carry out further his view of being able to deliver duty 12 or throughout This included a comment to the effect that the the claimant worked, and the majority of the Mr MacDonald, to collect the special deliveries as time The majority of the manager gave the morning Mr Logan, Mr Prior, Mr by Jamie Lang and statement pace 115 114 113 112 111 110 Mr McGregor forwarded the claimant copies of the manager’s statements. of mail from a COLOD box, 145A, and found that he had in October 2016. Mr McGregor also checked if the claimant had previously signed for collection none (page 144). and he received an email from a delivery partner, confirming that there were Mr McGregor checked if there were any SD failures on 17 December for duty 12 as 3:53:09 and 22 as 3:57:41 , both excluding travel. of the bundle). enquiries. He had information as to the extent of duty 12 and 22 (pages 143 In addition to interviewing unnecessary discussion, debate and delay. unacceptable expected Mr Prior said leaving a whole duty was unacceptable. that the claimant had the sole task of preparing his own delivery and tie down. was to dispatch before 9.30am, which was the normal despatch time. He said provided with assistance on 16 December 2016; he replied duty 12 and 22 Mr Prior was also asked was there a plan in place for duty 12 or 22 to be that it was part of the duty to empty the box each day. the view that he was 100% sure that the claimant knew where the box was, were signatures to prove that he had signed out the daily. Mr Prior expressed He said the claimant had covered the role on several occasions duty holder on duty 22 and was also a driver, covering a walking delivery duty. if so how. was aware the COLOD box was there, and if he knew when to collect it and so on several occasions. COLOD box at Station Road before, and Mr Prior confirmed that he had done Mr McGregor also asked Mr Prior whether the claimant had collected that the pairing Mr Prior responded to the effect that the claimant was a regular that they could not deliver a whole duty and this caused Each duty had six loops; the estimated the duty time in total He was asked if he considered that the claimant these managers, would have required Mr McGregor undertook some He said he would have help but it was and there other the 15 10 117 116 120 119 118 which he attached significant weight in reaching his conclusions. claimant could be a difficult employee to manage, but this was not a factor to the employee’s In reaching this conclusion, why he took this decision (page 103 to 113). 2017 confirming his decision and providing his reasons at some length as to appropriate He decided that notification 2 and 3 should be upheld, and he concluded the notification one being upheld. there was any deliberate which involved others in addition to the claimant, and he did not conclude that preparing the mail, there were a number of factors which contributed to this not to uphold notification Mr McGregor thereafter considered the evidence which he had and decided delivering in this way, he would not have done so. over the van or drop boxes. Had he made aware of the importance Tortoise and Hare was used to show the benefits of using lightweight trolleys he could not recall this being highlighted as of high importance. He stated the relation to training videos and correct delivery procedures in relation to SDs, issues throughout his 15 years with the respondents. never been counselled McGregor with the letter of 22 February 2017 making the point that he had MacLeod, and confirmed that he had. The claimant forwarded these to Mr performance Mr McGhee was asked if he had ever attended a meeting in which issues of worker and a good employee. gave statements to the effect that in their experience the claimant was a good representative, representative, In response sanction was dismissal. or attitude had been raised by a manager in relation to Mr to these Callum Mackay, David Cooper, Adam Torrance), all of whom approached statements. or managed in relation to performance the 1 , on the basis that although there was delay in act on the part of the claimant Mr McGregor had regard to the manager’s and a number of colleagues (Shaun McGhee CWU He concluded on balance it was likely that the claimant, He wrote to the claimant on 3 March with the assistance He also stated that in which justified of a CWU or attitude of not 25 10 30 20 124 123 122 121 the COLOD boxes. He took into account that the claimant had collected the boxes were on that route, and of his obligation as a driver to collect mail from his with experience of duty 22, would have been aware of where the COLOD Mr McGregor concluded that a GPO of the claimant's act on his part. in which he did, and he drew the inference that his doing so was a deliberate would have known the practice possible. was the driver who was expected to deviate with SDs as close stated that he could not explain; and that the claimant had accepted was asked why he though delivering SD’s in the way he did was efficient, he conclusion, Mr McGregor attached weight to the fact that when the claimant should be achieved, with the driver deviating to deliver SD’s. In reaching his and he was satisfied that it was well known within the business of the claimant's given a direction as to how to deal with them. He did not consider that a GPO the SD’s, that it was a spur of the moment decision, or that he had not been delay. Mr McGregor did not accept the claimant's inefficient approach of delivering SD’s with a partner in the van which built in Mr McGregor inferred that it was the claimant's some of the duty would have to be removed, but not the whole duty, and he Mr McGregor accepted that the duty and volume of mail was such that that delivered, as Mr Bryson had estimated that 3 or 4 loops could be delivered. was only the claimant who stated none of the mail for duty 12 should be conduct warning. In reaching this conclusion, Mr McGregor concluded that it to this, and that he placed his partner, Mr Bryson at risk of receiving a similar Mr McGregor concluded that the claimant was the decision maker in relation 2016. he did not intend to deliver one of the duties of his pairing on 16 December Mr McGregor concluded that the claimant had acted unreasonably Mr McGregor concluded that the claimant as an experienced experience that the claimant required a direction as to how to deliver SD’s was not to carry out deliveries in the manner intention to do as little work as possible. had deliberately explanation experience, in relation to adopted tolpm as in stating and with how this that it GPO an 15 10 25 20 128 127 126 conduct notification for delivering SDs as a pair. hearing was conducted by Mr McGregor. Mr Bryson had received a previous Mr Bryson received the same notifications as the claimant, and his disciplinary the appropriate sanction was dismissal. customer complaints, potential service, Mr McGregor not be delivered. avoid having to work, and to prove his point to the manager that duty 12 could part of the claimant, and were built in to * pad out’ the duty 22 which would notifications Weighing was unacceptable, hours 57 minutes (duty 22) took two postmen a total of 6 hours and 40 minutes Mr McGregor had the responsibility and where COLOD boxes were, and on the basis that he was aware that he deliberate act, based on the claimant' experience, his knowledge of the route to collect the COLOD boxes on his way round with special deliveries was a more delay and inefficiencies. boxes which he passed on his way around the special deliveries, building in Mr McGregor concluded that the claimant failed to collect mail from COLOD, in light of these factors. the claimant’s explanation as to why he had not collected the COLOD boxes keys for the COLOD box before leaving the delivery office. He did not accept but was satisfied that given the severity of the offence, and the consequences all these Mr McGregor 2 and 3 amounted to deliberate delays in delivering mail on the took into account the claimant's concluded that the fact that one delivery, designed to take 3 and unrealistic. of collecting them. financial penalties, for the He concluded respondents and regulatory infringements, that the conduct identified that that the claimant's clean service and length of included potential failure in 135 134 133 132 131 130 after consulting with his trade union, the claimant lodged an appeal. The claimant was advised of his right to appeal the decision to dismiss, and in his circumstances. appropriate sanction, but that 2 years suspended dismissal was appropriate previous conduct notification who was the decision maker on the day, and while Mr Bryson had received a Looking at these elements Mr McGregor concluded that it was the claimant that the claimant was the driver, and therefore in control of driving the van. deliver the SDs in the manner in which they were done. He took into account Mr McGregor also took into account that it was the claimant's thought he could manage more. own evidence in the fact finding interview) said that he told Mr Prior that he claimant who said he did not intend to do duty 12, but that Mr Bryson (on his claimant as duty holder made the decision to do duty 22 first, and it was the have been delivered. He also took into account Mr Bryson’s position that the Bryson had indicated to Mr Lang, that he thought 3 loops of duty 12 could In reaching this conclusion, he attached significant weight to the fact that Mr duty 12, prior to leaving the delivery office. same intransigent approach as the claimant had about the ability to deliver Mr Bryson. McGregor took into account firstly that notification 3 was not upheld against respondents a two year suspended Mr McGregor decided not to dismiss Mr Bryson, but to impose a sanction of responsibility uphold Ultimately the third notification Secondly, he concluded that Mr Bryson had not displayed can impose short of dismissal. for collecting mail from COLOD boxes. dismissal, upheld the second notification in relation to SDs that dismissal against which is the most serious sanction Mr Bryson In reaching this conclusion, as Mr Bryson only. was not the decision He did not had no the Mr the to 20 15 1 37 136 140 139 138 1 41 correct procedure, and placed him in an unfair position. issue. stated that he did not refuse to enter discussions or was invited to resolve the prep, the claimant believed there would be little time if any for duty 12. He deliver 22 with a third person doing a loop and part of another. this was deducted from the previous days’ time span which was 3 hours to to alerting management Secondly, the claimant submitted he followed the correct procedure in relation being dismissed, while Mr Bryson was given a lesser sanction, was unfair. the alleged conduct, whereas he had not and the claimant submitted that his make his own decisions. but that Mr Bryson was employed on the same operational grade, and could Firstly, he said that it was alleged that he was the decision maker on that day, In the submission the claimant made a number of points. submission, and provided it to Ms Walker at the appeal hearing. produced representative, The claimant had at the point when he took the decision to dismiss him. with all the documents accompanied a meeting Ms Walker wrote to the claimant on 1 3 March 201 7 (1 59) inviting him to attend re-hearing of the disciplinary case. based in Northern Ireland. In terms of the respondent’s The papers were passed to Ms Collette Walker, who is an Appeals Manager He submitted at page 167 to 169 of the bundle. on 21 March by a trade union representative. attended and presented that this showed that managers which Ms Walker had, and which Mr McGregor had on the day what was achievable that day. He said the interviewed Mr Bryson had already been warned about some of 2017 and he was advised a written submission accompanied The claimant was supplied to Ms Walker which is code, the appeal is a failed to follow the by a trade of his right to be After doing read this union 15 10 25 20 144 143 142 147 146 145 would leave SD’s after getting no response from Jamie Lang about what to he did not pad out his duty and he submitted it would not make sense that he no deliberate intention and did not plan delay. opinions and interpretations, The claimant also submitted missed. supported He submitted he also forgotten lightweight trolleys and drop bags for the COLOD boxes. because of lack of direction from managers, he had forgotten to sign out, and The claimant submitted it was a stressful time for him to be in the office McGhee delivering less mail than him. there was no investigation of his comments relating to Alan Ponton and Shaun no contact was made with him. He submitted it was unfair investigation, The claimant complained he was treated unfairly during his suspension 12 with Terry. his mistake by collecting them later in the day while also delivering part of duty usually were as part of the driver’s delivery loops. He submitted he corrected doing duty 12 in the normal way, then they would have been collected as they Fifthly, the COLOD boxes being missed was a mistake, and had he been was treated inconsistently to work overtime, and he could not because of childcare. and the claimant submitted that he thought this was because they were willing disciplinary action, despite completing only one duty on 16 December Fourthly, other members of staff (Alan Ponton and Shaun McGhee) faced no unacceptable. warranted a serious offence and it had never been communicated Thirdly, the claimant had not been aware that delivery of SDs in this manner that it only occurred this showed that there were not on his mind to do, and which was unreasonable and not on evidence. that Mr McGregor's to him after the COLOD The claimant submitted that He reiterated that he had and unfair.[12]that the claimant's partner, Mr Terry Bryson had commented Mr Bryson expectations decision made and communicated of opinion Mr Prior responded:- stated Mr Shaun McGhee that he welcome back (174) which of between decision was made and that he believed how I would like to add at much myself and Mr with Mr Daniel delivery, to to 166 165 164 168 167 S/41 02047/1 7 Pag© 33 seriousness Ms Walker put to Mr Prior that the claimant alleged he was unaware of the his concerns. Prior's unacceptable consulting the last of the frame. asked why, he said it was too busy. The claimant said that he would not be getting anywhere near duty 12. When the claimant and his partner Mr Bryson and asked them what the matter was. not be able to deliver any of duty 12. Mr Prior said he had then approached Lang had spoken to him and told him that the claimant had said that he would Mr Prior responded that when he returned to the officer at 9.45am Mr Jamie 16 December 2016 and he was asked for his comments on this. afforded the opportunity of discussing his concerns regarding the delivery on Ms Walker put to Mr Prior that the claimant fact finding meeting was conducted when Mr MacLeod returned. copy be produced. Ms Walker asked was there a record kept of that conversation claimant and Mr. Bryson. McGhee the TU office rep. was involved in discussions representative Ms Walker with loops 1 , 2 and 3 of duty 1 2. to traffic levels that day he would be expecting duty 22 to be completed along progress. in contact with them when they were out on the delivery to monitor time. They were told to follow the delivery process and a manager would be position was that the claimant had plenty of opportunities He said that before leaving the office he told the claimant that due with his line manager of adopting the practice of doubling up on delivery of SDs. asked if there was a difference and he wanted to seek guidance and advice on the matter. Mr involved Mr Prior responded there was an initial discussion and a Mr Prior said he told the claimant that he would be in the discussion. (Mr McGregor) At this point the claimant was still tying had alleged that he was not Mr Prior responded of opinion as he believed was the union and could a to discuss this was him, the that Mr their She 20 15 30 25 171 170 1 72 S/41 02047/17 Page 34 pairing. confirmed boxes in previous weeks leading up to his absence on 10 October 2016. and out on that day and he provided copies of the claimant signing for COLOD for the COLOD boxes but he failed to do so and he had also failed to sign in boxes on 16 December 2016. Mr Prior confirmed that he should have signed Ms Walker asked whether the claimant had signed for the keys for the COLOD workload that was assigned to them had to be moved elsewhere. affected parts of time of both Mr McGhee and being involved in discussions between Mr MacLeod and Mr Bryson this pressure. them other than their own duty, and this was a short term fix due to Christmas comparison. and asked for his comment Pontin and Shaun McGhee completing one delivery duty on 16 December, Ms Walker put it to Mr Prior that the claimant had drawn a comparison to Alan collecting the COLOD boxes in Station Road. 15 calls in total. He said that Mr Bryson had done this while the claimant was confirmed that part of a loop was delivered by Mr Bryson, which amounted to Ms Walker asked how much of duty 12 had been delivered, involved had been Mr Bryson. delivering SDs and not following the correct procedure. One of the individuals were suspended for failing mail, and they had been driving around together board. Mr Prior said that furthermore Premium claimant training activities and briefs of how park and loop delivery works. He said the Mr Prior responded practice. asked him how he could be sure that he was aware of the seriousness of this Products had signing training records to show he had been through the claimant had experience He also said the due to Mr McGhee being the union representative He said that Mr McGhee and Mr Ponton had work assigned to brief, Correct Delivery of Mail, and the Revision Story that the claimant had been taken through numerous on this. in August 2016 two members of staff in collecting COLOD boxes for the Mr Prior responded and Mr Ponton, meaning there was no and Mr Prior the the He 1 75 1 74 173 180 1 79 178 177 176 she also took into account the supportive statements generally supportive of the claimant's In doing so, she took into account the managers statements which were not the decision to dismiss. Ms Walker then considered the information before her, and decided to uphold pointed to the fact that he had not collected the COLOD boxes for some time. supported the position that this was not at the forefront of his mind, and he that he had forgotten lightweight trolley and collection bags for COLOD boxes The claimant wrote again to Ms Walker, reiterating his position that the fact investigation. failure on the manager’s complete his duties and he submitted that due to lack of communication procedure, The claimant also submitted alleged conversation He also asked Ms Walker to consider why Mr Prior had not mentioned McGhee, would confirm this if required. not a group/four way discussion. In relation to the involvement duty 12. Mr Bryson said to Mr Prior that ‘we would struggle' we to make an impact on page 188 of the bundle. The claimant responded at length and his reply to Ms Walker is produced at above, and asked for his comments on these. 2016, and copies of his signature on the work time learning briefs noted Daniel Prior, a copy of the welcome back meeting notes of 14 December On 24 April 2017 Ms Walker sent the claimant a copy of the statement from in the event an employee in his fact finding interview with Ross MacDonald. He stated that among other things that he believed part, he appeared of Shaun McGhee, the claimant said there was He said that the union representative view of how he performed at work, and is concerned to be trying to mislead had failed to follow the from his colleagues. about his ability and this the Mr to 30 25 182 181 184 183 by Mr McGregor confirmed that members of the delivery team in Bearsden SDs. Ms Walker also took into account that all of the managers interviewed which the claimant had attended, explained the correct delivery process for claimant had received and she considered the Tortoise and the Hare training She took into account her enquiries been communicated of SD’s in pairs was a serious breach of procedure and that this had never In relation to the claimant's about the delivery of mail. the situation where there is a difference between management Ms Walker concluded that the respondents wasted' by the claimant arguing with management that Mr McGregor statement, in the context of what had taken place. She took into account that considered the delivery, but not to the extent of one full delivery. accept that the claimant and his partner would require help with completing team at Bearsden discussion to compromise. Ms Walker took into account that the management he would not be able to complete duty 12, and would not enter into any the evidence of Mr Prior. She was satisfied the claimant was adamant that evidence about contacting his line manager, and the claimant. Ms Walker had regard to the evidence managers supported the notifications of conduct for the claimant. business standards, and she concluded on balance that the evidence to be different, given the managers role is to ensure the employees his work colleagues, and between the claimant and his managers were likely this element, she concluded that the relationship between the claimant While ultimately Ms Walker did not attach a significant amount of weight to Ms Walker did not consider it necessary to interview Mr McGhee she had no reason not to accept what Mr Prior had said in his had gone through the traffic figures and identified were familiar with the routes, and they were willing to to him, Ms Walker concluded that this was not correct. position that he had not been aware that deliveries in relation to the training given by Mr Prior, including had followed their procedures about delivery. She preferred and a GPO which the work to as she of the ‘t/me and for his 30 25 1 88 187 186 supplied with copies of the fact finding interviews of Mr Prior and Mr Lang prior Ms Walker also considered the claimant's delivery duty and this amounted to a deliberate intention to delay the mail. the COLOD box and returning later to collect it in an attempt to pad out his She concluded that the claimant had used an inefficient practice in passing of making effective efficient decisions to avoid unnecessary that this meant that he was fully aware of the procedures and the importance position. She took into account the claimant's In relation to the COLOD relation to this, and concluded there was no relevant comparison to be made. delivery on 1 6 December 2016. Ms Walker accepted Mr Prior's evidence in in comparison with Mr Ponton and Mr McGhee who had only completed one Ms Walker also considered the claimant' s position that he was treated unfairly of his evidence at the appeal. Ms Walker formed the opinion that the claimant was not credible in this aspect any communication delivery (delivering was being honest when he claimed that he did not know this method of correct procedure for delivering SDs, and she did not accept that the claimant Ms Walker concluded that the delivery team at Bearsden were aware of the delay in delivery of mail. unproductive delivery method used for special delivery, but because it was said that by using a the claimant was not subjected deliver them built in delay and inefficiency. said in the fact finding interview that he understood position was that he had received no instruction on the special deliveries, he items. had been briefed on and were well aware of the correct procedure Ms Walker also took into account that notwithstanding method Page 37 in carrying out his delivery duties which resulted in intentional from managers which outlined that it was unacceptable. in pairs) was incorrect, and that he had never received was inefficient, boxes, Ms Walker to disciplinary representation the claimant Ms Walker took into account that experience and she concluded action on the basis of the considered the method he used to that he had not been was intentionally the claimant's the claimant’s delay to mail. for SD 25 20[15]IG 193 192 191 190 189 income from that employment is £292.24. Agency (Student Loans) in an administrative employment after a period of 8 weeks and is now employed by a Government Following had found established. than dismissal was not appropriate given the seriousness of the conduct she decision of dismissal stand. She considered that imposing any sanctions less record against this, and concluded that the appeal should be rejected and the dismissal, even for a first offence. the Code provided that where proven, such breaches of conduct can lead to customer complaints and financial penalties. She also took into account that potential implications for the respondents Mrs Walker took onto account this test had been met and that the claimant had intentionally was knowingly deliberate with the intent to delay mail", She concluded considered as intentional delay is whether the action taken by the employee in doing so, had intentionally delayed delivery of mail. order to slow down completion of delivery of mail on 16 December 2016, and Walker concluded that the claimant, had deliberately leaving the delivery office, and the manner in which he delivered the mail, Ms From the attitude which Ms Walker found the claimant displaying taken by Mr McGregor. an opportunity claimant was supplied with copies of the interview notes and had been given this was a procedural error, but she was satisfied it was a minor one, and the to the meeting with Mr Macgregor on 25 January 201 7. Ms Walker concluded Ms Walker balanced She considered the termination to comment on them, prior to the decision to dismiss the test in the Code, which is “ whether actions of his employment the seriousness length of service and clean conduct in terms of regulatory infringements, capacity. The claimant's of that charge, been unproductive delayed mail. obtained and the can be prior to weekly being new that in 15 10 25 20 195 Respondents Submissions 194 197 196 any advice given to the claimant by Mr Prior. happened. not have told her anything already had two accounts (the claimant and Mr Prior), and Mr McGhee could what he was saying about the conversation of defence. submitted that there was no need for the respondents to investigate every line In relation to the failure to investigate further with Mr McGhee, Mr Gibson dismiss. comment MacDonald the statements Any procedural failure by Mr McGregor in failing to provide the claimant with to the steps taken by Mr MacDonald, Mr McGregor and Ms Walker on appeal. the respondents reason for dismissal, Mr Gibson submitted whether the dismissal had been unfair under Section 98(4) of ERA. whether the reason for a dismissal Tribunal to the relevant law, and the test which is applied in considering For the respondents in him, with a value of £1,220. date of termination of his employment, further shares would have been vested shares. Had he remained in employment for a period of 3 months beyond the While in his employment Submissions of the statements Mr McGhee could therefore not have assisted Ms Walker as to was remedied The claimant was saying was that Mr McGhee could back up of the fact findings conducted had conducted a reasonable investigation, and had a genuine belief in that reason. Mr Gibson made extensive submissions, with the respondents and the claimant in addition to what the claimant had told her prior to Mr McGregor had been established, had identified not taking place. Ms Walker was given an opportunity the claimant was allocated with the managers making his decision a potentially and he referred and thereafter He submitted and took the by Mr fair to to 203 202 201 200 199 198 succeeded In relation to remedy, Mr Gibson submitted Gibson also referred to Ms Walker’s evidence in this regard. decided on appropriate McGregor number of matters Mr Gibson submitted that the dismissal was procedurally fair and pointed to a Health Authority (Court of Appeal unreported 23 October 1994). -v- Coral Casinos Ltd [1981] IRLR 352, and Paul -v- East Surrey District cases differed. In this regard Mr Gibson referred to the case of Hadijioannou at the claimant's There was no inconsistency The respondents were entitled to reach the conclusions which they did. the COLOD boxes which he passed when completing the special deliveries. The same reasoning applied to the claimant's deliberately given his stated position on leaving the office. reasonable acting contrary to a policy and practice on which he had been trained; it was delay and inefficiency. claimant accepted that delivering specials in the way in which he did built in length of time which it took to deliver duty 22 on 16th December 2016. The unheard of and extreme. and Mr McGregor to the effect that leaving one whole duty undelivered and Mr Gibson asked the Tribunal to accept the evidence of Mr MacDonald reasonable grounds. Mr Gibson submitted the respondent’s investigation. by an employee, It is not incumbent upon the respondents to investigate every line advanced took into account there should be 100% contribution for the decision case against that of Mr Bryson and analysed how the two and the respondents in support of his position, including They were entitled to take evidence from the managers, He had been trained how to deliver SDs and he was action, and had not upheld notification The Christmas volume of mail could not explain the of treatment, and Mr McGregor looked carefully the points put forward maker to conclude belief in the misconduct was based on had carried out a thorough and full that in the event the claimant decision not to collect mail from for conduct, and the same that he had done by the claimant the fact that Mr one. and was Mr so 208 207 206 205 204 Claimants signing sheet in October were no interview notes provided to him from Terry Bryson, or the COLOD which he had prior to his conduct meeting. submitted that Mr McGregor had not provided him with all the documentation The claimant on a weekly basis throughout his suspension. The claimant also submitted that Mr MacDonald did not keep him up to date and communicate refusal. He submitted that Mr Lang and Mr Prior failed to handle the situation not get duty 12 done. what he would be able to deliver, and the claimant said he believed he would intent. The claimant submitted that Mr MacDonald failed to establish a declaration of in practical terms and the duty 22 was a major issue. Bryson, and explained how the Revised duties at Bearsden had not worked The claimant referred to the evidence given by Ms McGill, Mr Cooper and Mr day before to complete both duties. honest assessment based on the fact that it took three people on overtime the assessment of a true workload on that day could have been an accurate and day back at work, and he failed to properly consider whether the claimant's firstly Mr MacDonald believed that 16 December 201 6 was the claimant's Tribunal has to apply. He submitted that the investigation was flawed, in that The claimant also took the T ribunal to the relevant law and the test which the 6 months. taken for mitigation, but Mr Gibson submitted the loss should be restricted to Dayton Services Ltd. In relation to quantification reduction should apply applying the principles derived from Polkey -v- A E Submissions As part of the practice at the depot Mr Lang had asked the claimant then turned to the disciplinary expectations clearly. The claimant submitted this was not a point blank 2016. The COLOD He referred to the fact that there hearing and evidence. signing of the claim no issue was sheet of October first He 213 21 1 210 209 that Ms Walker did not interview a key witness, Mr McGhee, and in hindsight thorough investigation and a fair process at the appeal stage. He submitted In relation sheets in October. duty 12 and 22 since the revision period and he had only signed the COLOD Mr Cooper confirmed the claimant had not been collecting COLOD boxes on wilful delay or gross misconduct. never suggested that a failure to follow the Tortoise and Hare would result in work time learning sheets from 2013 were not helpful in this regard. submitted Mr McGregor had not produced evidence of clear practice, and the position with Mr Ponton and Mr McGhee, and had failed to prove intent. The claimant submitted Mr McGregor had failed to properly investigate turn led to ambiguity in expectation. management claimant submitted this was an important fact and he believed it showed that had provided witness testimony to the same effect in document held. Mr Bryson gave evidence that this had not happened, and Mr McGhee interviewed his union representative believed a 1 5 minute meeting happened with management to conduct a thorough investigation In relation to the investigation put him at a disadvantage in his conduct meeting was kept waiting for almost 2 hours prior to the disciplinary meeting and this The claimant supplied. conduct meeting due to COLOD signing sheet dated October 2016 not being 8 weeks before, and he had not been able to put this forward during his supported the fact that the last time the claimant had collected the boxes was to the appeal the claimant Mr McGhee and could not verify a record of this meeting being failed to communicate submitted that Mr McGregor could not recall why the claimant which was in line with CWU/RM conduct, he had not the claimant submitted that Mr McGregor failed a clear decision and direction, which in and his evidence was that although he submitted he was not afforded the claimant and form. The It was He the a 218 217 216 21 5 214 considerable experience as a postman. and the revision The claimant also referred to the difficulties caused by the Christmas it with the claimant on the day. even though he had previously been counselled for this, and he had not raised given a lesser charge than a partner. him, and Mr Bryson. The claimant referred to what he said was a disparity in treatment position to prove" on that day. memory, and the claimant did not have intent to delay the mail, and had “no was no dishonesty claimant's Managers had failed on the day to handle the situation properly before the the day before. delivered on busy days without additional support and that this had happened that it was well known that the duties 12 and 22 were not capable of being The claimant dealt with the reasons for the decision to dismiss. part of the appeal process. submitted that she failed to investigate view, and thus she was not impartial when she conducted to the testimony of the managers. The claimant also submitted that it was unfair for Ms Walker to have regard their purposes in portraying the events of 16 December 2016. were produced to portray him as a particular kind of person, effectively to suit McGregor, and not before it, as claimed. The claimant submitted that these Management statements were produced after the disciplinary process with Mr as to why managers admitted this was unfair. departure, which delay and had a knock on effect on time. There in Bearsden, in the claimant's In addition on a previous occasion, a driver had been had not followed any disciplinary She did not follow up or conduct any investigation which he submitted She said in evidence it helped her form her Mr Bryson was given a lesser charge recording the evidence which came to her as of time which was from had to set aside his process the appeal. He submitted with him. volume He 222 221 Note on evidence 220 219 about how the disciplinary issues of credibility in relation to the evidence given by any of these witnesses Other than one issue, which is dealt with below, there were no significant dealt with the appeal. interview and took the decision to dismiss the claimant, and Ms Walker, who the fact finding For the respondents, where their evidence it was relevant, it was credible and reliable. attempted to mislead the Tribunal on any material point, and that in the main of Mr Bryson, did not form the impression The Tribunal heard a number of witnesses in this case and with the exception chance and he had no other evidence supplied in support of his defence. remains respondents volume and he was not given traffic figures or given the opportunity to discuss the him. after his conduct meeting were in order to help inflated charges stick against The claimant submitted the managers’ statement asked for by Mr McGregor missed the COLOD box was simply that he forgot to collect it. out of the van delivering specials to separate addresses. he and Mr Bryson were driving around together in the van as they were both most important to deliver. Duty 1 2 was closer to the office, and he denied that simply seeking assistance when he prioritised respondents GPOs was disposing delay of mail. He submitted that was introduced to deal with situations where The claimant referred to the terms of the Code in relation to the intentional The claimant submitted that most he was guilty of was poor judgment unsubstantiated, in relation have accused him of being dogmatic in his approach, but this were fully aware of this at the time of his dismissal. the Tribunal heard from Mr MacDonald, who carried out to his workload. of mail by hiding it, and this was not what he did; the and they procedurally procedure Mr McGregor, was conducted. The that any of them deliberately who conducted claimant SD items, as they were the failed to give him a fair However there were submitted The reason why he the conduct that the He was 228 227 226 225 224 sought to investigate the position advanced by the claimant at the disciplinary production of these statements. The Tribunal stick. relation to the events of 16 December 2016, and to make inflated charges him as the kind of person who the respondents which were adverse to the claimant, were been produced arises from the claimant's There was one issue of credibility in relation to the decision makers which not turn upon this. delivering SDs in pairs occasion delay. Ultimately, however, a great deal could finding hearing, the evidence he gave to the Tribunal, and the position he adopted at the fact credibility and there were inconsistencies The Tribunal formed the impression that Mr Bryson’s evidence at times lacked Mr MacDonald. their perception of operational matters differed to that of Mr McGregor, relation to the evidence of Ms McGill, or Mr Cooper albeit on some matters The Tribunal did not form the impression that any material credibility issues in could attach little weight to it. and as his evidence has not been subject to cross examination was produced from Mr McGhee, but he was unable to attend as a witness, who was paired along with the claimant on 16 December 2016. A statement learning; Mr Cooper, a GPO of very considerable McGill, The claimant gave evidence on his own behalf, and led evidence from Ms their decision to dismiss the claimant, and these are also dealt with below. McGregor, which went to operational matters, and formed the background some issues of fact, arising from the evidence a GPO and work place coach, who was involved however, which impacted was not satisfied this was the motivation submission to the effect that managers statements It accepted Mr McGregor's on his credibility. which were unexplained, experience; and Mr Bryson of Mr MacDonald were trying to portray For example evidence that he in order to show in work place the Tribunal whether between and Mr for the and in to 230 229 generally for the driver to deviate with the SDs while the walker delivered mail. depart from this), the flavour of their evidence supported that the practice was standard way envisaged by the training (and on occasions it made sense to claimant’s The Tribunal also heard evidence about the delivery of SDs. Again while the left in a whole duty. When pressed on the point in cross examination that, (which was consistent they cannot manage a number of loops and generally mangers are ok with issues, or any mail that has to be left in. He explained that often people say declined, and said mangers asked at the tie down stage, if there are any occur. unusual (albeit they may not have accepted it was unheard of) for this to inconsistent with that given by the managers, and was to the effect that it was than their managers point. While the claimant's it did not seem to the Tribunal that there was a great deal of dispute on this a full duty of mail could not be delivered, or not to deliver a full duty. Ultimately Mr McGregor and Mr MacDonald, it was “unheard of’ for postmen to state that One of the relevant issues of fact in this case was whether as suggested by she did. statements in reaching her decision, and the Tribunal was satisfied that it what to take them into account and weight them against the claimant’s colleague’s appeal on account of the manager’s statements. She was reasonably entitled Similarly it did not conclude that Ms Walker was biased in her approach to the inference adverse to his credibility on the basis that he did so. unreasonable that he had intentionally support of the claimant's hearing, as to what sort of worker he was. This position was advanced Mr Copper was asked in evidence witnesses suggested for Mr McGregor to investigate on this point, the flavour of their evidence delayed delivery of the mail. position that it could not be reasonably concluded witnesses gave evidence and this was less robust with the evidence that they were not always delivered in the this, and the Tribunal drew no in chief about how mail was of respondent’s he accepted he had never It was therefore witnesses). was not not in 238 237 236 235 234 233 Decision 232 adopted about delivery of duty 12 prior to leaving the delivery office, and of his conduct, based on what they believed to be the intransigent effect that the reason the respondents The Tribunal accepted the evidence of Mr McGregor and Ms Walker to the employer or beliefs held by him which cause him to dismiss the employee. heavy one. The reason for dismissal can be a set of facts known to the The onus on the respondents have established the reason for dismissal. The first matter which the T ribunal has to consider is whether the respondents to gross misconduct, their position that the claimant's related reason, as set out in notification 2 and 3 of the conduct charge. It is It is the respondent’s Section 98(2)(b) if it relates to the conduct of the employee. employee holding the position which the employee held. Section 98, or some other substantial reason which justifies dismissal of the dismissal, In terms of Section 98(1) of ERA, it is for the employer to show the reason for employee has a right not to be unfairly dismissed by his employer. Section 94 of the Employment and its effect on particular duties in the Bearsden post office. therefore it is unnecessary the information The Tribunal in determining the issues in this case is however concerned with difficulties occasioned by the revision at Bearsden, and in particular, duty 22. The Tribunal and that it is a potentially also which was before the disciplinary justifying summary dismissal. heard position that the claimant was dismissed to make detailed findings in relation to the Revision evidence to establish the reason for dismissal is not a conduct (intentional delay of mail) amounted Rights Act 1996 (ERA) dismissed the claimant was because fair reason, within subsection from officers at the time, and A reason fall within provides witnesses for a conduct position he that an (2) of the 241 240 239 of the dismissal under Section 98(4) of ERA. Section 98(4) states:- Having reached that conclusion, the T ribunal went on to consider the fairness onus of proving the reason for dismissal. The T ribunal was therefore satisfied that the respondents had discharged the evidence at all to support this. his dismissal was related to his inability to do overtime, but there was no reason. dismissed carried out in good faith) supported the conclusion inconsiderable respondents reasonableness the investigations The Tribunal was supported in its conclusion, having regard to the extent of claimant. the respondents December 201 6. The Tribunal was satisfied that it was these elements which this that the claimant thereafter the manner in which he delivered the mail, and they concluded from % 1 ) It was suggested by the claimant in submission that the reason for for the misconduct belief are matters which are dealt with below, the fact that a not(a) employer) - fair or unfair (having (1), the determination Where the employer has fulfilled the requirements of subsection investigation of this had in mind, when they took the decision to dismiss the which were carried out prior to dismissal. dismissing the employee; unreasonably undertaking) size and administrative depends on whether in the circumstances had intentionally was carried out (and the Tribunal was satisfied alleged against him, and not for any other in treating the of the question whether the dismissal is regard employer and delayed to the reason resources the it as a sufficient reason reasonableness delivering acted that the claimant was of the employer’s reasonably shown (including the mail on 16th While the by the of the for or 243 242 Frozen Foods Ltd v Jones What was said in that case was:- The T ribunal also took into account the guidance given in the case of Iceland case. investigation formed which to sustain that belief, and thirdly, the employer at this stage, when he it must be shown that the employer had in his mind reasonable grounds upon the employer the fact of the belief; that the employer did believe it. Secondly, at that time. This involves three elements. suspicion amounting to a belief in the guilt of the employee of that misconduct on the grounds T ribunal has to decide, whether the employer who discharged the employee misconduct, the employer What was said in that case is that where an employee is dismissed because the well-known case of British Home Stores Ltd v Burchell This is a conduct dismissal, and the Tribunal considered the test laid down in “(1) (3) (2) that belief into the matter as was reasonable in determining was the right course to adopt for that of the employer; Industrial Tribunal must not substitute its decision as to what In Judging the reasonableness dismissal to be fair; they (the members reasonableness In applying this section an Industrial Tribunal must consider the themselves; The starting point should always be the words of Section 57(3)(b) suspects of the misconduct on those grounds substantial merits of the case" shall be determined or believes whether the dismissal is unfair an Employment of the employer's of the Industrial in question, that he has committed must in accordance with equity and the Firstly, it must be established by of the employer’s conduct an have carried conduct, not simply whether in the circumstances entertained Tribunal) consider out as much a reasonable an act of of the the 249 248 247 246 245 which gave him the opportunity to put forward his position. appeal, and includes the interviews carried out from the commencement Mr MacDonald carried out, but incorporates all the investigations The investigation set out above in the findings in fact. The steps taken by the respondents to investigate the claimant's as much investigation as was reasonable in the circumstances. respondents formed the decision to dismiss the claimant they had carried out Burchell The Tribunal noted above, the Tribunal was satisfied on that point. The first part of the Burchell test deals with the reason for dismissal, reasonableness dismissal it must apply an objective test, and furthermore that in considering The Tribunal reminded itself, that in considering the reasonableness (5) (4) test, and began by considering is fair; if a dismissal falls out with the band it is unfair” have adopted. reasonable the decision to dismiss the employee fell within the band of determine whether in the particular circumstances The function of the Industrial Tribunal, as an industrial jury, is to reasonable take another; employer responses In many (although not all) cases there is a band of reasonable therefore considered under Section 98(4) the burden of proof is neutral. is not confined simply to the fact finding investigation might responses to the If the dismissal falls within the band a dismissal reasonably employee’s the second and third elements and correspondence of the disciplinary process, up until the which a reasonable whether at the point when the take one view, conduct within with the claimant employer another of each case which were conduct are which and as which of the of the might quite one 253 252 251 250 dismiss. objectively went to the reasonableness failure in terms of the respondent’s a weekly basis throughout the suspension period. This on the face of it is a The claimant also criticised Mr MacDonald for failing to keep him advised on fact finding interview. work. This was not however, put before Mr MacDonald and Mr Bryson at the Tribunal, which explained how the revised routes did not changes made by the Revision, and the evidence of Mr McGill, Mr Cooper The claimant submitted the investigation unfair. by the appeal stage, this of itself objectively notes did not extract all the evidence which was ultimately taken into account While it would be correct to say that Mr MacDonald’s and deciding whether the matter should be referred on further consideration. his involvement was confined to interviewing the claimant and the managers, facts, however Mr MacDonald was not the decision maker on dismissal, and The claimant also criticised Mr MacDonald for failing to establish the correct duties on the 1 6th of December. Cooper had delivered parcels on the 1 5th , and there were no parcels in the more mail on the 15th December than the 16 th . It was not in dispute that Mr day, and Mr MacDonald investigated the traffic volumes, which showed 12% referred to making a judgment based on how long the loops took the previous turned on was 16 December 2016, however Mr MacDonald did incorrectly believe that the claimant's submission. criticising what he said were Mr MacDonald's failures, as noted above in his The claimant made a number of criticisms of the investigation. this error in terms of the investigative that Mr MacDonald it did not appear that procedure, of the investigation, failed to give consideration was not capable of but it was not one which process. fact finding interview first day back at work in the course of the anything material and decision to The claimant He began by rendering to 259 258 257 256 255 and the absence of the October sheet did not prevent him from advancing this effect that he had not collected mail from the COLOD boxes for some time, not prevented however, this did not render the investigation COLOD box in October with a copy of the sheet which he had signed confirming he had collected a The claimant also criticising the investigation for comment. interview of another employee to the claimant, but to extract the relevant parts was not unreasonable was put to the claimant for comment at the Conduct Hearing. Objectively effect that he considered account that the relevant parts of Mr Bryson’s statement, which were to the assessing provided with a copy of the fact finding interview The claimant also criticised the investigation claimant as part of the appeal bundle. confirming The claimant is capable of remedying earlier failures in the disciplinary procedure. appeal. The conduct of the appeal forms part of the disciplinary process, and disciplinary case, and the claimant had these statements in advance of the Further, it was not in dispute that the appeal amounted to a re-hearing of the the decision to dismiss was taken. therefore albeit this was a failure in the first instance it was remedied before to dismiss, and gave the claimant an opportunity these notes, but he did provide them to the claimant prior to taking his decision Mr Lang and Mr Prior, at his conduct interview. Mr McGregor did fail to provide he failed to provide the claimant with the interview notes from the managers The claimant criticised the investigation carried out by Mr McGregor, the reasonableness SD figures from advancing the defence (which he did in fact did) to the also submitted for the respondents not to disclose the whole conduct (page 144). 2016 months that some of the loops of duty 12 could be done, that he was not given a copy of the email of the investigation, This was, however, prior to his dismissal. unfair, in that the claimant was because he was not provided on the basis that he was not to comment on them, and the Tribunal takes into from Terry Bryson. provided Objectively, to the in that In it 265 264 263 262 261 260 claimant). (albeit Mr McGhee deliver any of duty 12, with the claimant stating it could not be delivered. was that there was a disagreement discussions Mr Prior however did not suggest that Mr McGhee was present throughout his be able to confirm this if required’. on Mr Prior's further statement “the union representative, Mr Prior , Mr Bryson and Mr McGhee place, and he stated in his comments It was the claimant's had told her. position further with Mr McGhee as she had no reason to doubt what Mr Prior the approach which she did, that it was unnecessary for her to investigate the The Tribunal considered whether it was reasonable for Ms Walker to adopt what had been said by the claimant in his appeal. questions which Ms Walker asked Mr Prior were reasonable, in the context of legitimate not giving Mr Prior another chance, as suggested by the claimant, but was a basis of what was said by the claimant in his appeal submission. reasonably In terms of the investigation appeal. contact Mr McGhee, The claimant also criticised Mr McGregor's signed the COLOD sheet in October. the claimant commented position. prior In addition Mr Prior in his statement at the appeal stage, on which inquiry of him in light of the points raised by the claimant. in contacting Mr Prior in order to make further enquiries, on the There with the claimant; the most significant element of his evidence to Mr Prior's had already produced was nothing to suggest position that no 4 way discussion the same criticism was levelled at Ms Walker at the at some length, indicated that the claimant expanded which was carried out, Ms Walker . with the claimant as to whether he could a statement on behalf of the claimant statement being produced took place with him, Shaun McGhee will in that he failed to could not have This was to the acted The had 268 267 266 S/41 02047/1 1 Page 54 the statements produced by the claimant from his work colleagues, Mr McGregor, and Ms Walker took into account these statements conduct which was alleged against him. The Tribunal were satisfied that both good employee response to the claimant’s submission at the Conduct hearing that he was a unreasonable different investigation against an objective earlier. up or conducting any investigation into why managers had not disciplined him The claimant also criticised Ms Walker at the appeal stage, for not following their own duty, which was a short term fix due to the Christmas pressure. basis that Mr McGhee and Mr Ponton had work assigned to them other than entitled to accept Mr Prior's evidence that there was no comparison, pairing of GPOs the previous day and she did this. She was reasonably raised about the amount of duty which had been delivered It was reasonable for Ms Walker to investigate the point which the claimant unreasonable remained change after he discussed had done this supported the conclusion that the claimant’s position did not advice from his line manger about what to do about this. The fact that Mr Prior indicated that duty 12 could not be delivered, and that Mr Prior had sought claimant’s From the information carried out. employer, what the respondents failing that renders an investigation not to follow every line of defence offered by a claimant, and it is not every produced a further statement from him. It is not unreasonable for an employer Again, the investigation adamant in his position, and in these circumstances and not whether a better or fuller investigation statement, for the respondents to obtain statements from the managers in for Ms Walker to adopt the approach which she did. and therefore would be unlikely to engage in the type of could have been carried out. Objectively, standard of reasonableness, she was entitled to conclude that the claimant Mrs Walker had from the statements, did, judged against the standard of a reasonable it with his managers, which the respondents carried out is judged unfair. The Tribunal is concerned but as Mr Prior said he not whether could have been by a different including it was not a fuller or it was not alongside in order on the had with the 273 272 271 270 269 intransigent attitude about this, and secondly, that he had thereafter employed indicated that he would not be able to deliver duty 12, and had adopted an Mr McGregor The two principal factual conclusions which underpinned inference which they did, that he intentionally delayed the delivery of mail. particular way, but also whether they were reasonably a certain stance in relation to delivery of duty 12, or delivered whether they were reasonably entitled to conclude that the claimant had taken The reasonableness upon which to do so. which the claimant was dismissed, the respondents had reasonable grounds considered whether at the point they formed their belief in the misconduct for The Tribunal then went on to consider the third leg of the Burchell test and these had been remedied at appeal. of the position he advanced. Where there had been any procedural made into the events of the 16 th December, including been given an opportunity to state his case and reasonable enquiry had been The claimant had been given notice of what was alleged against him, had carried out as much investigation The T ribunal was satisfied that applying an objective test the respondents had was not an element to which she attached significant weight. that the manager’s statements were an element in her decision making, but it as submitted by the claimant. The Tribunal accepted Ms Walker’s evidence the managers’ statements in forming her view rendered the appeal impartial, Furthermore the Tribunal did not accept that Ms Walker’s taking into account there had been no previous disciplinary procedures against the claimant. an exercise did not reasonably require them to investigate further as to why to reach a conclusion as to the reliability of the claimant's and Ms Walker of the respondents took, were in summary, as was reasonable belief in this case rests not just on in the circumstances. entitled to draw the enquiry on the basis the decision which that the claimant statement. mail in a errors, Such 279 278 277 276 275 274 significant weight to the fact that it was extremely unusual to refuse to do a position In reaching managers. in an intransigent delivered on 16 December along with duty 22. Walker to conclude that the claimant had indicated that duty 12 could not be In light of this evidence, it was not unreasonable delivered. the appeal stage, that the claimant had said that duty 12 would not be It was the evidence of Mr Lang, and also Mr Prior on further investigation (duty) won’t be done. would need to leave in, and he had said it would be duty 12, or the second The claimant went on to say that Mr Lang had asked him how many loops he this was the case, and denied discussing it with Mr Bryson. of duty 12 could have been delivered, the claimant said that he didn't think When it was put to him that his partner, Mr Bryson reckoned that 3 or 4 loops a lot better than duty 12. duties, leaving duty 12. He responded it was his decision as he knew duty 22 confirmed this. The claimant was asked who decided to deliver one of the 12, The claimant's effect that the claimant indicated that he would not have time to do any of duty Dismissing At the point the decision to dismiss was taken, and upheld at appeal, the collection of mail from a COLOD box. inefficient ways of delivering the mail, in connection with both SDs, and the The decision makers however also concluded that the claimant had behaved and the approach and Appeal Officers had the evidence of two managers the conclusion manner, and had refused to take on board advice from his own evidence at the conduct hearing with Mr McGregor as to the unreasonableness he adopted, the decision for Mr McGregor makers of the claimant's attached and Ms to the at 285 284 283 282 281 position adopted by the claimant. that Mr Prior had then consulted his line manager about what to do about the said that he would not be able to deliver duty 12 because it was too busy; and to deliver duty 12; that Mr Prior had thereafter approached the claimant, who with Mr Lang, who told him the claimant was saying that he would not be able (confirmed by Mr Lang) to the effect that on his return to the office he spoke She was also reasonably entitled to have regard to the statement of Mr Prior, where he confirmed that he said he would not get duty 12 done. regard to the claimant's In reaching these conclusions to leaving. complete any of duty 1 2, and that he did not compromise on this position prior regarding could not be delivered; evidence to allow Ms Walker to conclude that the claimant said that duty 12 Notwithstanding that that did not happen. recorded, and traffic figures being discussed and it was accepted in this case reach, in that this procedure provides for advice given to the employee being It did not appear to the Tribunal that this was a conclusion she was entitled to referred to above. followed their recommended Ms Walker went further than that, and concluded significant weight to it. and they were reasonably whole duty. The Tribunal was satisfied that as a matter of fact this was correct, delivery that morning, and that he indicated that he would not this however, that he had an opportunity statement in his fact finding and conduct hearing, procedure “prior to commencement entitled to take this into account, and attach Ms Walker was reasonably on an objective view, there was sufficient to discuss his concerns entitled to have of deliver had ’ , 289 288 287 286 292 291 290 to why he adopted this approach on that particular morning. inefficiency and delay, and that he could not provide a cogent explanation accepted The respondents deliveries, while the walker delivered mail. recognised the claimant's delivered SD’s in a manner in which he had been trained not to. Appeal Officers were reasonably The Tribunal went on to consider whether the respondents claimant about delivery of duty 12. was reasonably procedure) were not essential elements in the conclusions she reached, and ultimately these (and whether there had been adherence to the recommended duty 12, and whether Mr McGhee leaving as to his expectation that the pair would complete 1 , 2 and 3 loops of only to whether the claimant was given direction by Mr Prior just prior to The inconsistency remained adamant on departure that it could not be delivered. had been a discussion These were elements which reasonably supported the conclusion that there accepted that assistance would be required with duty 22 and 12. Ms Walker was also entitled to have regard to the fact that the managers the claimant refusing to change his view. there had been debate about non delivery of Duty 12 with the claimant, with The fact that Mr Prior took this step reasonably supported the conclusion that The Tribunal was satisfied on the general flavour of the evidence, including that he knew that delivering by GPOs that the driver deviated from the loop to deliver special witnesses, that while there could be exceptions, entitled to reach, regarding were also entitled to take into account that the claimant in the evidence between the claimant and Mr Prior related about delivery of duty 12 with the claimant, entitled to conclude that the claimant had was part of the discussion. SD’s in this way ( in pairs) built in the position Dismissing adopted it was well However by the but he and as 297 296 295 294 293 at the end of his duty returned to collect the mail from them. that he had driven past COLOD boxes when delivering the SDs and had then not collected mail from the COLOD boxes in a manner which was efficient, in The respondents deliberate act on his part. the normal practice, and was an inefficient way of delivering mail and was a delivered the SDs on duty 12 first, as a pair with Mr Bryson, was contrary to not unreasonable While it was open to the respondents he decided to be accompanied by Mr Bryson on the delivery of SD‘s duties of 22 and 12 the previous day, as this did not reasonably explain why SDs before 1pm, and that he had in his mind the extent of the delivery the position advanced by the claimant that he was concerned about delivering In light of these factors it was not unreasonable this method of delivery. recognised the managers They were also reasonably entitled to attach weight to the statements been told not to do them in this way. manner of delivering SDs, notwithstanding not the recognised method of delivering SDs, and that it was not an efficient claimant's The productive. deliver the SDs in that way and he accepted he could have been more took the decision, and he accepted in hindsight, that it was the wrong call to The claimant said at the conduct hearing that he could not explain why he