Gerard Dobbin and City Bus LTD
| Jurisdiction | Northern Ireland |
| Judge | Higgins LJ |
| Judgment Date | 22 September 2008 |
| Neutral Citation | [2008] NICA 42 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 22 September 2008 |
1
Neutral Citation No.: [2008] NICA 42 Ref: HIG7258
Judgment: approved by the Court for handing down Delivered: 22/9/08
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_________
Between:
GERARD DOBBIN
Applicant/Respondent;
and
CITYBUS LIMITED
Respondent/Appellant.
_________
Before Kerr LCJ, Campbell LJ and Higgins LJ
_________
HIGGINS LJ
[1] This is an appeal by way of case stated from a decision of the Fair
Employment Tribunal (the Tribunal) that the respondent employee was
unfairly dismissed. In assessing compensation the Tribunal found that the
respondent’s approach to the disciplinary process and his conduct ‘largely
contributed to the manner in which his misconduct was viewed by the
respondent’. Accordingly his compensation was reduced by 75%, although
this reduction was not applied to the basic award. The Tribunal awarded Mr
Dobbin the sum of £38,401.
[2] The respondent commenced employment with the appellant in or
about 1976. From 1985 until 2002 he held the post of Bus Inspector. In
February 2002 he was dismissed for ‘serious and persistent harassment’ of
another employee called Best, also a Bus Inspector.
[3] In September 2001 Mr Best made a complaint to his line manager, a
Chief Inspector, of harassment by the respondent. Later in September 2001 the
respondent and Mr Best agreed to attempt informal resolution of this
complaint. This was to be carried out with the assistance of an agreed
2
facilitator who was the union representative of the Trade Union to which they
both belonged. On 22 September 2001 Peter Donnelly, the trade union
facilitator, met Mr Best. Following this meeting Mr Best decided not to seek
informal resolution of the complaint but instead to pursue a formal complaint
against the respondent under the appellant’s harassment policy.
[4] On 26 September 2001 Mr Best duly made a complaint of harassment
against Mr Dobbin. The complaint was in writing and it averred that the
harassment began on 28 August 2001. It was also alleged that Mr Best had
been the victim of slanderous behaviour. The Tribunal found the complaint
included (paragraph 15 of the case stated) –
“… a phone call made to Mr Best’s home, referred
to the respondent’s change of mind with regard to
covering Mr Best’s annual leave, the walk out by
the respondent from the course on the 13
September 2001, the complaint about Mr Best’s
performance of duties on the 20 September 2001
and the discovery on the 22 September 2001 that
the respondent had accused him of dishonesty in
July 2001 to Chief Inspector Childs.”
[5] The issue of dishonesty (sometimes referred to in the papers as
‘slanderous behaviour’) related to the purchase of a retirement gift for a
fellow employee. It was suggested that Mr Best had not purchased the gift
with the money raised by the employees but had presented a crystal bowl that
he already possessed, thereby misusing the money raised. The respondent
was accused of spreading this story amongst the workforce.
[6] The appellant investigated these complaints under its written
Harassment and Policy Procedure (the harassment policy). Heather Grant (the
designated Human Resources member) and Gerard Mullan, (a depot manager
from another location), were appointed to investigate them. Following the
investigation, a charge of serious and persistent misconduct was laid against
Mr Dobbin. It was also alleged that during the investigation the respondent
sought to put pressure on Mr Best using a trade union representative and a
bus driver to have Mr Best advised that the respondent would be highlighting
to the appellant certain misconduct by Mr Best relating to the bus driver. This
event led to the respondent being disciplined for intimidation as part of the
harassment complaint. A disciplinary hearing took place on 5 February 2002
and on 6 February 2002 he was found guilty of gross misconduct and
dismissed from his employment.
[7] The respondent appealed this decision and Mr Philip O’Neill, an Area
Manager, heard the appeal. The appeal was dismissed. In dismissing the
appeal, Mr O’Neill wrote an eight page letter on 12 March 2002 to the
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