McEldowney vs Randox Farming Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 26 March 2021 |
| Docket Number | 17412/18it |
| Court | Industrial Tribunal (NI) |
| Respondent | Randox Farming Limited |
THE INDUSTRIAL TRIBUNALS
CASE REF: 17412/18IT
CLAIMANT: Nevin McEldowney
RESPONDENT: Randox Farming Limited trading as Cherryvalley Farms
JUDGMENT
The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The tribunal awards the claimant the sum of £8,585.00 as remedy for his unfair dismissal.
CONSTITUTION OF TRIBUNAL:
Employment Judge: Employment Judge Gamble
Members: Mrs C Stewart
Mr B Heaney
APPEARANCES:
The claimant was represented by Ms E McIlveen Barrister-at-Law, instructed by John J McNally Solicitors.
The respondent was represented by Mr J Algazy QC, instructed by the respondent’s in-house legal department.
Ms Suzanne Smith attended the hearing as an Intermediary during the claimant’s cross examination during the reconvened hearing on 17 and
18 November 2020.
- BACKGROUND
1.1 The claimant was employed as a Shepherd, latterly the head Shepherd for the respondent, from 5 December 2014 until his summary dismissal on 10 August 2018.
1.2 The claimant presented a claim, which included a claim of unfair dismissal and failure to pay notice pay, to the tribunal on 8 November 2018. The claim form was prepared and lodged on behalf of the claimant by his solicitor.
1.3 The other claim within the claimant’s claim form (namely unlawful discrimination on grounds of religious belief) was dismissed on 14 October 2019, following its withdrawal by the claimant, leaving only the claims of unfair dismissal and failure to pay Notice Pay to be determined by the tribunal.
1.4 The respondent, in its response, presented on 27 December 2018, denied all of the claimant’s claims. The reasons for resistance can be summarised in the following extracts from the response form: “The claimant was summarily dismissed with immediate effect due to an act of gross misconduct”, “there had been a breach of trust and confidence which left the respondent with no option but to consider the sanction of gross misconduct” and “the actions leading to his dismissal were a clear breach of the essential trust and confidence required between employee and employer.”
- FACTUAL BACKGROUND
2.1. From the evidence proffered by both parties, it is common case that on the 26 July 2018 the claimant took a freshly deceased lamb, slit its throat, hoisted it on a forklift truck, bled it, removed its entrails, skinned it, removed its head, sawed it down the middle and transported it to the cold store on the respondent’s farm. It was not disputed by the respondent that EM (a more junior employee) was present when the dead lamb was prepared and that DB (the Farm Manager) was present when the claimant placed the lamb in the cold store and did not object.
2.2 The next day, being 27 July 2018, an investigation was commenced into the claimant’s actions and the claimant was suspended from work on full pay. The investigation was carried out by Pauline Bradley, the Operations Manager of Randox Laboratories Ltd.
2.3 Following a disciplinary hearing held on 10 August 2018, the claimant was summarily dismissed with immediate effect. The disciplinary hearing was conducted by Charles McGonagle, the Environmental Manager of Randox Laboratories Ltd. The claimant was summarily dismissed at the conclusion of that hearing.
2.4 The dismissal decision was communicated to the claimant orally at the conclusion of the disciplinary hearing on 10 August 2018, confirmed in writing in a letter dated 16 August 2018, and set out in the full Disciplinary Overview and Outcome Report, which was sent to the claimant on 7 September 2018.
2.5 The claimant appealed against his dismissal, and his appeal was heard on 18 September 2018 by Susan Hammond, Global Sales Manager of Randox Laboratories Ltd. The appeal was not upheld and this decision was communicated to the claimant by letter dated 15 October 2018.
- THE CONTENTS OF THE CLAIM FORM
3.1. The claim form consists of a narrative account, setting out a brief summary of the incident which gave rise to the claimant’s dismissal (paragraphs 5 to 8), an account of the disciplinary process (paragraphs 6 to 12), the reasons for dismissal (paragraphs 13 to 18) and a conclusion (paragraphs 19 to 21).
3.2. The claim form rehearsed a history of the claimant having brought a complaint against a number of co-workers, namely SW, RE and EM in or around May 2018. The claim form records that, after the outcome to the complaint, the claimant lodged a grievance against SW, RE, and EM and that he also raised complaints about how his complaint was investigated by his employer.
3.3. Under the section entitled “Disciplinary Process” the claim form rehearses that the claimant had received statements about the incident from MR, DB and EM, that during the process the claimant had raised his belief that MR had made a malicious report because of his grievance against MR’s uncle, SW. The claimant also complained that neither EM nor DB had been disciplined for the incident.
3.4. Under the section entitled “Reasons For Dismissal”, the claim form provided some further detail about the nature of the claim, namely:
“13. The claimant maintains that the findings against him are based on assumptions rather than positive action by him. The claimant maintains the respondent has placed unreasonable reliance upon statements made by employees against whom the claimant had lodged a grievance.
14. Indeed, the allegations of theft are based on supposed intentions rather than action. The claimant did not remove the lamb from the farm premises and therefore he did not commit theft nor did the claimant have any intention of removing the lamb from the premises until he had spoken to (the owner of the business).
- The claimant has been open and honest throughout the entire investigation. The claimant never received any food safety training and was assisted in placing the lamb into the cold store by his manager
16. In all the circumstances, the claimant maintains that it is grossly disproportionate to find him guilty of gross misconduct.
17. Prior to the incident with the lamb, the claimant had a clear disciplinary record.
18. ….”
- THE CONTENTS OF THE RESPONSE FORM
4.1. At paragraph 3.4 of the response, which was presented on the 24 December 2018, it is recorded:
“1. On Friday, 27...
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