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Case No. 13/113
THE EMPLOYMENT TRIBUNAL
BETWEEN:
Claimant: Respondent:
A vril Diane Cowley Isle of Man Post Office
DECISION OF THE EMPLOYMENT TRIBUNAL
HELD AT: Douglas
CHAIRPERSON: Mr Peter Scott
REPRESENTATION
On: 4 April 2014 and 13 June 2014
Members: Mrs Fiona Robinson Mr Robin Turton
The Claimant was represented by Mr Ian Taylor, a trade union representative and the Respondent was represented by Mr Oliver Helfrich, Advocate.
DECISION
The Tribunal unanimously finds:
1) The Claimant was unfairly dismissed on 27 April 2013 contrary to section 111 of
the Employment Act 2006.
2) The conduct of the Claimant prior to her dismissal was such that it is just and
equitable to reduce the basic and compensatory awards by 25%.
3) The basic award which is one week's gross pay for each complete year of service
(subject to a maximum of £480 a week) shall be £8,640 reduced by 25% to
£6,480.
4) The compensatory award shall be for one year's net salary of £23,697.02 less net
alternative earnings of £18,839.65 (£4,857.37) less 25% £3,643.03. These figures
are based on the earnings to 3 March 2014 with Adorn Domiciliary Care Limited
supplied by the Claimant, extended to cover the first full year from dismissal at the
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same rate. Thereafter the Tribunal considers that the Claimant will be able to earn
the same in the new job as she did with the Post Office.
5) The Claimant shall receive £320 reduced by 25% to £240 for loss of her statutory
right not to be unfairly dismissed and the right to a statutory notice period.
6) There was no claim for expenses in relation to the dismissal.
7) The loss of pension awarded is £18,642.48 less 25% being £13,981.86 - see
paragraphs 189-192.
8) The Claimant applied for an additional award for injury to feelings. The Tribunal
does not consider this to be a case where such an award is justified.
9) The total sum payable shall therefore be £24,344.89.
REASONS FOR DECISION Background
1. The application to this Tribunal was made by the Claimant on 1 May 2013 and is a
claim for unfair dismissal.
2. The response is dated 31 May 2013 and rejects the claim in full.
3. The case was delayed by the Claimant's ill health until late 2013 and the present
hearing was fixed as soon as all the witnesses and Advocates were available.
4. The Claimant started working for the Respondent on 13 February 1995.
5. On 24 December 2012 the Claimant attended the airport to deliver bank pouches
to an aircraft as part of her normal duties. The circumstances of what happened
there on that evening are disputed, but form the basis of the Respondent's decision
to summarily dismiss the Claimant in April 2013.
Respondent's Case
Colin Leendert Harold Cain
Mr Cain was not called to give evidence and his statement was read to the
Tribunal.
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John George Higginbotham
6. Mr Higginbotham is the Late Processing Manager for the Isle of Man Post Office.
7. During 2012 he actively encouraged the Claimant to have a trial at acting
Manager's role on the late shift. The Claimant originally did agree to this, but
later decided not to proceed.
8. Dawn Kewley who is the Assistant Manager on the late shift and Mr
Higginbotham both encouraged the Claimant to move over to the late shift when
an opportunity arose, because they had a positive working relationship with her
and felt she would be an asset to the shift.
9. At various times the late shift needed extra staff on overtime to deal with
unforeseen problems or unexpected mail volumes and the Claimant was the first
person they would contact if the need arose.
I O.Mr Higginbotham was on duty on 24 December 2012 and controlling the outward
mail despatch. At about 5.25 pm he asked the Claimant to transport the bank
pouch items to the airport, which was part of her normal duties. The Claimant
asked why she was being asked to do this, but Mr Higginbotham merely said it
was her normal job and it needed to be done.
1 1. At 5.50 pm the Claimant rang Mr Higginbotham to tell him the aircraft was not at
the holding area. He said he would check with the aircraft company and call her
back. Two minutes later he had called the Claimant back and confirmed the
aircraft would land in five minutes. The Claimant asked Mr Higginbotham
whether she needed to wait for it and he confirmed that she did as it was one of
their best customers.
12.The Claimant returned to the office at about 6.30 pm, which was about twenty
minutes later than usual. As she handed in the vehicle keys, Mr Higginbotham
said to her: "see you're not that late, what was all that fuss about?" The Claimant
replied that it was unfair as she was still working and her colleagues had gone
home. At no time did the Claimant tell Mr Higginbotham that she had
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encountered any problem at the airport regarding loading or that she had injured
herself.
13.0n 28 December 2012, the first day back at work for the late shift Mr
Higginbotham was informed that the Claimant was off sick and he needed to cover
her duties. The green sick form SC2 was filled in as a result of a telephone call
from the Claimant, but no reason was given for the absence. The Claimant was
off for the rest of that week.
14.0n 31 December 2012 Mr Higginbotham was given a second SC2 for the
Claimant with no reason given for her absence.
15.0n 2 January 2013 the Claimant contacted Kevin Thompson, one of the Post
Persons Higher Grade team members. Mr Thompson told Dawn Kewley and Mr
Higginbotham that the Claimant was off work and she had told him not to forget
to tell them it was an accident at work.
16.Mr Higginbotham confirmed that a Doctor's note had been sent in and he was
informed that it said the Claimant had an injured shoulder.
17.Mr Higginbotham asked Dawn Kewley to see whether she could interview the
Claimant and find out what had occurred.
18.0n 25 March 2013 Dawn Kewley handed Mr Higginbotham her report on the
Claimant's accident. It stated that Mr Higginbotham was involved, as his name
was given by the Claimant as her reason for not reporting her accident to a
Manager at the time of the accident.
19.Mr Higginbotham therefore passed the report and the findings on to Malcolm
MacPherson, the Managing Director of Mail. Mr Higginbotham agreed with
Dawn Kewley's findings, but as he was implicated in the report there would have
been a conflict of interest.
20.After Mr MacPherson received the reports he told Mr Higginbotham that the
Claimant was accusing him of bullying.
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21. On cross-examination Mr Higginbotham confirmed that Ms Cowley had finished
about 20 minutes later than usual on 24 December 2012. He said that on
Christmas Eve staff are asked to start earlier than usual to hopefully finish earlier.
22.After the Claimant had left for the airport the sorting office work was complete
and the staff had gone home just after 6 pm. Mr Higginbotham had to stay on in
case he needed to cover for the Claimant.
23.Mr Higginbotham said he was fair and if there was a delay at New Year he would
have had someone else cover for the Claimant.
24.Mr Higginbotham confirmed that he was the only person left in the office when
the Claimant arrived back at about 6.30 pm.
25.All staff are trained on manual handling.
26.0n re-examination Mr Higginbotham confirmed that at about 5.25 pm the
Claimant would have weighed the pouches and put them into the van.
27.At about 5.35 pm she would have left the sorting office and arrived at the airport
about 5.50 pm.
Dawn Elizabeth Joan Kewley
28.Ms Kewley was employed at the time as the Assistant Processing Manager. She
was responsible for back to work interviews and investigations into accidents at
work involving her team.
29.0n investigating the Claimant's accident at work she found that the facts did not
hold up and Ms Kewley became concerned about the Claimant's health.
30.The Claimant had phoned in to the PHG locker at the Post Office to report herself
as 'off sick' due to an accident at work, nine days after that alleged accident and it
was on her third phone call to the PHG locker that claimant specifically said
"make sure you tell them it was an accident at work".
31.At the investigation meeting the Claimant said she did not want to tell the person
she spoke to why she was off sick. However, there was no reason why she could
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not have said it was due to an accident at work in her first phone call. Ms Kewley
found it suspicious that the Claimant had said nothing relating to this.
32.0n 15 February 2013 Mr MacPherson, the Managing Director of Mail, asked Ms
Kewley to contact the Claimant and see how she was and whether she was fit
enough to come to the sorting office to complete an accident report. Ms Kewley
wrote to her the same day, but did not receive a reply. Ms Kewley therefore
telephoned the Claimant, but received no answer.
33.0n 25 February 2013 the Claimant attended the sorting office without an
appointment. Ms Kewley, who had just come on shift, arranged to a meeting with
the Claimant in an HR meeting room and asked a member of HR to sit in.
34.Ms Kewley first asked the Claimant to fill in the injured person report, during
which time Ms Kewley read over some questions she had prepared. On compiling
the manager's investigation report Ms Kewley thought that the Claimant's injury
might not have come to light until later as is the case with pulled muscles, but the
Claimant specifically stated on the accident report that she felt a tear in her right
shoulder as it happened.
35.Ms Kewley asked the Claimant why she did not report the injury to Mr
Higginbotham on her return from the airport. The Claimant said that Mr
Higginbotham was busy telling her off and she did not think the injury was as bad
as it turned out to be. Ms Kewley asked the Claimant if she knew the procedure
for reporting accidents at work, but the Claimant said she did not.
36.Ms Kewley filled in a manual record of absence on an attendance record card as
well as a computer record for pay and leave reconciliation. In doing so she
noticed that the Claimant had 11 previous leave forms including 3 accidents, so
Ms Kewley felt sure that the Claimant would know about accident reporting.
37. The Claimant told Ms Kewley that the pilot had not opened the bottom half of the
plane door, which made things difficult for her to load pouches onto the plane.
The Claimant said that the pilot was Unhelpful. Although she could not
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investigate this at the time, at a later date she obtained a report from the pilot who
said that it was not possible to load the plane without both doors being open.
38.The Claimant also blamed the weight of the pouches (which she had been trained
to deal with), but had lifted the pouches at Douglas sorting office and placed them
in the van to transport them to the airport. She therefore knew the weight of the
items she had to hand to the pilot. Also as this was the Claimant's usual work she
would know the weights involved as the pouches were of similar weight each
night. The Claimant said that she had a sore neck for a couple of weeks before
this, but she never mentioned it to anyone or asked for help, which was out of
character.
39.All of these facts made Ms Kewley concerned that the Claimant's report regarding
the events of24 December 2012 was not true and she therefore referred the matter
to Mr Higginbotham with a recommendation that disciplinary action be
considered.
40.Ms Kewley had started work for the Isle of Man Post Office on the same day as
the Claimant; they had trained together. Ms Kewley then moved in to
management training and then to the late shift. The Claimant worked on the early
shift and appeared to enjoy it. Ms Kewley frequently phoned the Claimant and
asked her to work overtime on the late shift. This the Claimant did frequently and
Ms Kewley found her to be a very good worker. Her line manager, John
Higginbotham, approached the Claimant to come and train as an acting manager.
41. The Claimant came to see Ms Kewley and asked her to go through the late shift
job role. For some unknown reason the Claimant did not take on the role as acting
training Manager, but did agree to transfer to the late shift.
42.In December 2012 Ms Kewley saw the Claimant go into the early shift Manager's
office with Col in Cain, the Delivery Manager and Paul Henry, the Assistant
Delivery Manager. Ms Kewley believed that the Claimant wanted to go back to
the early shift and Paul Henry confirmed this was the case.
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43.After her investigation Ms Kewley felt that the Claimant may have had some
serious health problems, but doubted that the accident on 24 December 2012 had
taken place.
44.Following the report being filed the Claimant then made a complaint about Ms
Kewley bullying her. Ms Kewley was called into Mr MacPherson's office and
asked if she was bullying the Claimant. Ms Kewley categorically denied this and
explained that when she spoke to the Claimant in early December she was
operating a stamp cancel machine and her voice would have been raised due to the
background noise. She had told the Claimant that the Claimant had not filed a
collection form that she would have received for the flower pick up, which was the
only reference to the delivery point and payment slip. Ms Kewley was not aware
that the Claimant had taken exception to this until she was standing with Mr
Higginbotham when she asked the Claimant if she wanted to work overtime that
evemng. The Claimant replied that she did not wish to be shouted at and walked
by.
45.Ms Kewley asked Mr Higginbotham if he had been shouting at the Claimant. He
said no. The next day Ms Kewley asked the Claimant who had been shouting at
her and she said that it was Ms Kewley. Ms Kewley apologised if the Claimant
thought that she had been shouting at her and asked whether the Claimant would
like her to apologise in writing, but she replied that she did not and it was fine.
However, the Claimant was very cool towards Ms Kewley for the rest of
December.
46.0n cross-examination Ms Kewley confirmed that she had been a Manager since
2004.
47.Ms Kewley said that she asked HR to attend the meeting with the Claimant in
February 2013 as she thought having someone else there would avoid altercations.
Bev Dixon came from HR, but was not required to be there.
48.Ms Kewley did wonder why the Claimant had not said she had an accident at work
on 24 December 2012 straightaway that day. Ms Kewley did not think the failure
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to report the accident was a disciplinary offence, because early on the injury may
not have been obvious to her. However a "tear" was mentioned at the accident
report meeting, which would infer the injury should have been immediately
obvious. The accident report was completed on 25 February 2013.
49.Ms Kewley confirmed the 9 days delay in reporting the accident included 3 bank
holidays.
50.Ms Kewley confirmed that the staff manual sets out the conduct code; it is a hard
copy and everyone receives a copy. Ms Kewley could not say whether the
Claimant had read it.
51. When Ms Kewley found out about the accident she confirmed it was two months
before the accident form was completed. She was told to deal with it as an
accident by Mr MacPherson.
52.Documents 1-9 were written after Ms Kewley's investigation. Looking at the note
on page 25 Ms Kewley confirmed they were just personal notes. The meeting took
20-30 minutes.
53.Ms Kewley felt that the meeting had been fair. She had drafted questions and Mr
MacPherson had asked her to check with the pilot and gather details.
54.Ms Kewley believed the Claimant was lying about the accident. Ms Kewley did
not share her notes with the Claimant and in fact never spoke with her again.
55. The Claimant said that the bottom door was shut. Ms Kewley could not comment
on the weight of the bags as she was not working that shift and the bag weights are
not individually logged.
56.Ms Kewley referred to her e-mail on page 22 and said that the pilot was in a hurry.
It was not a normal evening. The document on page 23 she had not seen before, it
was with regard to the Claimant wanting to return to the early shift. She was
concerned about the number of accidents reported by the Claimant, although she
could not comment on the liability aspect.
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57.Ms Kewley said that shifts could not be altered without senior staff being offered
the position first, but in any event Mr Higginbotham had said no to Jason
swapping with the Claimant.
58.Ms Kewley confirmed that she had offered a genuine apology for the shouting
incident.
59. The Tribunal asked whether the post offtce policies were notified to the staff and
Ms Kewley confirmed that one copy is handed out at the start of employment and
then any amendments or additions are also advised.
60.0n re-examination Ms Kewley identified the staff manual.
61.She confirmed that HR attended the investigation meeting with her and the
Claimant, because of the bullying allegations.
62.Ms Kewley passed her findings to John Higginbotham, who in turn passed them
on to Malcolm MacPherson.
63.Ms Kewley also confirmed that her notes on page 25 were notes of what was said
at this interview.
MaIcolm MacPherson
64.Mr MacPherson is the Managing Director, Mails, with overall responsibility for all
aspects of postal services on the island. He has been employed by the Isle of Man
Post Offtce since April 2000.
65.During February 2013 he had been contacted by HR over a RIDDOR accident
investigation. This was in relation to the Claimant and it had not been
investigated, because she was on sick leave. Mr MacPherson said that he could
see no reason why the Claimant could not be called in, as long as her absence did
not preclude her from being able to do so, either physically or mentally.
66.As the Claimant was off sick with a shoulder/arm injury Mr MacPherson could see
no reason why she could not talk about the incident.
67.Sometime later Mr MacPherson was made aware that Dawn Kewley had
completed her investigation. Dawn Kewley had concluded that the Claimant was
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not telling the truth and Ms Kewley felt that the matter was too serious for her to
deal with and so had referred it to her boss John Higginbotham to deal with.
68.However, during the course of her investigation she had noted that the Claimant
had named John Higginbotham as having had a go at her and therefore he felt he
should not take part in order to avoid any accusation that he might be partial.
69.Malcolm MacPherson is John Higginbotham's boss and the papers were therefore
referred to him. He concluded that there was a case to answer and that the matter
was serious enough to be dealt with by him rather than passed back to Dawn
Kewley.
70.Mr MacPherson called the Claimant to a disciplinary hearing on 21st March 2014.
A few days before the interview took place, Brigitte Simcocks, a CWU
representative, came to him with a sheet of paper, compiled by the Claimant. It
listed people the Claimant had spoken to about being bullied on the late shift.
Brigitte Simcocks said that they did not wish to use this list at the hearing. Mr
MacPherson said that ifhe was not supposed to use it why was it being shown to
him? He told her that it would be included as he was now aware of it.
71. The hearing followed two lines. The first was whether the Claimant was telling
the truth about what had happened on Christmas Eve and the second was whether
bullying or harassment took place or whether this was an attempt to cast doubt on
Dawn Kewley's integrity or her investigation ofthe accident.
72.The Claimant's account not only kept changing, but some of the changes led to
situations, which were contradicted by the facts or were plainly not true. Mr
MacPherson did not believe that the Claimant had hurt her shoulder in the way she
described nor that her accusation of bullying was true.
73.The Claimant is an intelligent woman and provided answers when asked about
how the injury occurred. She said that it just happened doing her job normally or
that she could not remember. However, then she claimed that she could
remember, but those memories just did not hang together as a plausible account.
Whilst Mr MacPherson was certain that she was telling lies he could not
11
understand what motivated her to lie in the way she did. He could only speculate
that it was maybe to pave the way for a compensation claim or perhaps a hare
brained scheme to engineer a move from the late shift to the early shift. Whatever
the reason Mr MacPherson could not trust the Claimant. The harassment claim he
believed to be a despicable attempt to blacken Dawn Kewley's name and to halt
the discipline case against her.
74.In a business like the Post Office, the need to have complete trust in an employee
is paramount. That is why Mr MacPherson dismissed the Claimant on 4 April
2013.
75.A little later in April 2013 Mr MacPherson was handed a note written by Val
Caley, a colleague ofthe Claimant on the late shift. Mr MacPherson recalled that
this was some evidence that had been presented to Peter Cropper, who was
hearing the Claimant's Appeal against her dismissal. Mr MacPherson passed the
note to John Higginbotham to have it checked out.
76.The note was Val Caley's recollection of two phone conversations with the
Claimant on 24 December 2012. The first conversation was about the plane being
late. The second (after the Claimant had left work) was that the Claimant had
mentioned that she had hurt her shoulder.
77.Mr MacPherson had specifically asked the Claimant at the interview why no
mention had been made to John Higginbotham about hurting her arm and she had
said that she was unaware that she had hurt herself and it only became apparent
after Christmas. Mr MacPherson thought at the time that this was yet another
example of the story changing in retrospect and leaving another glaring
inconsistency.
78.0n cross-examination Mr MacPherson confirmed that he had been 14 years at Isle
of Man Post Office and prior to that a Manager at Royal Mail.
79.The investigation held by Dawn Kewley was the first stage of the process. She
had investigated the accident and concluded that she was not being told the truth.
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She could have said something to the Claimant at this meeting, however very
often you need time to consider matters before making a decision.
80.Mr MacPherson did not think the Claimant had been disadvantaged by that
process.
81.Mr MacPherson was referred to page 50, which was the second page of his
interview with the Claimant as part of her disciplinary hearing. He confirmed that
he agreed with Keith Green's statement two thirds of the way down the page. The
issue oflying was not put to the Claimant.
82.The investigation was not carried out on time, but in late February Mr
MacPherson thought that it should be done. The Claimant not filling in the
accident form on time or giving details at the time was not serious and would not
be a discipline matter.
83.Mr MacPherson was not concerned about the delay - it was the lie that was the
problem. Delay is not a discipline matter and the sickness absence was not a
problem.
84.The main question was whether an accident had occurred.
85.0n page 30 Mr MacPherson confirmed he had a list of 10 names. During his
investigation he only interviewed 3 ofthem, from which he learnt that the 10 were
not actually witnesses, but that the Claimant had spoken to them.
86.Bridget Simcocks had wanted to postpone the hearing, but the Claimant did not
want to.
87.Mr MacPherson thought that it was important to [md out from the Claimant what
the bullying allegation was. The only incident mentioned was Dawn Kewley
shouting at the Claimant. With hindsight Mr MacPherson said that he would have
undertaken further investigation in to this matter.
88.Referred to page 55 in the bundle, his minutes, Mr MacPherson was asked about
the incident described in the middle of the page and he confirmed that the
Claimant was in the top 5% of people doing video-coding. However, Mr
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MacPherson found out that she thought she had been accused of mis-coding and as
a result had refused to do that work.
89.0n page 31 Mr MacPherson was referred to the allegation of bullying on 21
December 2012 (before the incident on 24 December 2012). He pointed out that
this note was made on 20 March 2013.
90.Mr MacPherson thought that he was listening to all the evidence and doing the
right thing for the Post Office. He conceded there might have been an accident
and accepted that previous accidents may not have been investigated.
91. Whether the plane steps were up or down was immaterial.
92.Mr MacPherson said that the lack oftrust was the most important point.
93.Referring to page 99 para 9 Mr MacPherson confirmed that the investigation,
discipline and decision were all carried out by him.
94.0n re-examination Mr MacPherson confirmed that the hearing had been adjourned
from 9.45 am to 10 am for consideration ofthe allegation of bullying, but after
that the Claimant had decided to let the hearing go ahead.
Peter Cropper
95.Mr Cropper is Operations Director for Isle of Man Post Office and is responsible
for all Post Office operations on the Island; he has been employed in this role
since February 2012.
96.He was made aware that Malcolm MacPherson had conducted a disciplinary
investigation prior to a hearing with the Claimant on 21 March 2013 and had
subsequently decided to summarily dismiss her on the ground of losing confidence
in her integrity. This was due to her making a false account of an accident and
false accusations of bullying by her Line Manager, which constituted Gross
Misconduct.
97.He was also made aware of the subsequent Appeal against the dismissal and as he
was the Line Manager for Malcolm MacPherson it was his responsibility to
conduct the Appeal hearing for the Claimant.
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98.During the investigation and appeal process Mr Cropper wanted to understand
why Malcolm MacPherson had concluded that the Claimant had made a false
account of an accident and made false allegations of bullying by her Line
Manager. He also needed to form an opinion as to the fairness of the disciplinary
action taken against the Claimant as a result of those conclusions given that the
Claimant had 18 years of employment history with the Post Office. He also
wanted to understand the basis of the Appeal put forward by the Claimant.
99.Mr Cropper reviewed all ofthe previous written reports and also new documents
and letters submitted by the Claimant in support of her Appeal. He arranged a
disciplinary appeal meeting with the Claimant for 19 April 2013. At that meeting
the Claimant was accompanied by Charlie Jarrett, a retired Post Office employee
and CWU member and the note taker was Post Office HR Manager, Keith Green.
1 00. Following the Appeal meeting Mr Cropper considered all the written submissions,
all previous interview notes and the Claimant's employee file. He also asked
additional questions of Mal col m MacPherson, John Higginbotham, Dawn Kewley,
Colin Cain, Paul Henry, Bev Dixon and John Joughin. Mr Cropper also asked John
Higginbotham to interview Val Caley.
101. As a result of this Mr Cropper agreed with Malcolm MacPherson that the
Claimant had made a false account of an accident and made false allegations of
bullying against her Line Manager. He produced his notes forming an account of
his conclusion and how he arrived at it.
102. The issue of whether the claimant sustained an injury at work was very important,
not only because of normal concerns as an employer that the Post Office had safe
systems of work in operation, but also that the Claimant had 11 previous accidents
at work (producing 16 HR record entries), an extremely poor general absence
record due to injury and illness and a history of making compensation claims
against the Post Office.
103. Additionally Mr Cropper noticed that the Claimant had developed a pattern of
taking time off for reasons of sickness or injury during December/January for the
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past six consecutive years (2007-2012). The Claimant had also received a number
of written warnings about her high level of sickness absences.
104.Mr Cropper also found that the Claimant's assertion that she had no previous
problems at work and not having had her integrity questioned during her 18 years
employment history was not true.
105. The Claimant had been involved in several serious disputes with her work
colleagues (and another Line Manager) over the years, which had been brought to
the attention of management. Those were all incidents where the Claimant had been
accused of abusive or bullying behaviour towards others in the work place or where
the Claimant had accused others of bUllying or abusive behaviour towards her.
106. The Claimant's complaints against others had never been substantiated. In 2006
the Claimant was issued with a 12 month written warning for unsatisfactory
conduct towards another employee.
107. As a result of all his investigation and the meeting Mr Cropper had to consider
whether the summary dismissal decision against the Claimant had been too harsh
and whether a lesser penalty should have been imposed by Ma1colm MacPherson.
Mr Cropper decided that the decision was one which he should uphold and
therefore he wrote to the Claimant to inform her on 26 April 2013.
108. On cross-examination Mr Cropper confirmed that he was an experienced manager
and trained in the Isle of Man Post Office conduct code.
109. With regard to the accident report Mr Cropper confirmed that the standard time for
completion of this form is four days. However he believed that the reason the form
could not be completed for two months was because the Claimant was not
contactable.
110.Dawn Kewley interviewed the Claimant when the Claimant had appeared at work;
Mr Cropper believed that Ms Kewley could not have interviewed the Claimant
earlier. He did not believe the delay had prejudiced the investigation and that delay
was not material to the investigation.
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Ill. The Claimant could have reported the accident on three occasions - on her return
to work on 24 December 2012 and her two subsequent telephone calls. The nine
day delay in reporting this accident is not connected to the two month delay in
interviewing the Claimant. The latter delay was caused by the Claimant being away
from work.
112. The handwritten notes of the interview between Dawn Kewley and the Claimant
were believed by Mr Cropper to be correct. Mr Cropper believed Dawn Kewley
would know about the Code and had no doubts about her integrity. The Claimant
had every chance of an open approach then and there with Mr MacPherson and then
MrCropper.
113.Mr Cropper said that he had no doubt that the notes were a true reflection of the
meeting and had no doubt about Dawn Kewley's integrity. He did not think that the
notes were a breach of the procedure. If they were a breach then it was not
fundamental to the case.
114.Mr Cropper believed that the investigation took place as it should have done. He
was referred to the Conduct Code and said that Dawn Kewley had not thought that
she could proceed and so referred it to Mr MacPherson. The investigation had
taken place under Mr MacPherson.
115. Dawn Kewley had a suspicion, but did not follow it up and left it to Mr
MacPherson to investigate. Mr Cropper believed that Dawn Kewley was right to
escalate matters to Mr MacPherson.
116. On looking at the letter from Mr MacPherson to the Claimant dated 14 March
2013 it is clear that the Claimant was being warned that dismissal was a possible
outcome. This letter does not refer to bullying, because Mr Cropper believed that
the question of bullying had arisen later at the disciplinary meeting. The Claimant
or someone on her behalfhad introduced the question of bullying.
117.Mr Cropper was referred to the notes of the Disciplinary Hearing on 21 March
2013 and in particular was referred to the initial statement of Malcolm MacPherson,
17
who had passed copies of items 15, 16 and 17 to the Claimant also her CWU
representative, Brigitte Simcocks, and then granted a fifteen minute adjournment.
118. On reconvening despite Brigitte Simcocks stating that ideally she wanted more
time to consider them, the Claimant wanted to continue therefore the meeting
proceeded.
119.Mr Cropper said that Mr MacPherson was a senior Manager and should know the
code. These matters were not material and therefore are not referred to in his
decision.
120.Mr Cropper confirmed that the Claimant had not been dismissed for her sick
absence. There was a procedure for dealing with sickness absence, but the
Claimant was not subject to it at the time.
121. The Claimant denied knowing the accident report procedure. Her sick leave and
undertaking of accident reporting were taken into account when Mr Cropper
concluded her case. The Claimant was very aware of the procedure for reporting
both matters.
122. This information was general grounds in Mr Cropper's decision, but not that
relevant to the dismissal. The Claimant's previous accidents were also background
information.
123.Mr Cropper did not believe that the Claimant made this all up in order to pursue a
claim. Her motivation was not known, only surmised and one ofthe issues was that
she wanted to change shifts.
124. The Claimant's length of service was taken into account. She had told Mr
Cropper that she had never been in trouble before. He gave weight to this, however
during an eighteen year period the Claimant had been involved in similar cases. In
particular there had been allegations of bullying and harassment. The Claimant had
told Mr Cropper that she had never been questioned, but she had been in 2001,
2002,2003,2006 and 2007 in relation to bullying and harassment cases.
125. As part of re-hearing the matter Mr Cropper had questioned the Claimant, checked
call-outs and spoke to various people.
18
126. The minutes of the interview with Malcolm MacPherson had not been
countersigned by the Claimant and Mr Cropper agreed that it would have been
better if they had been.
127.0n re-examination on the original delay in following this matter up Mr Cropper
said that two months delay was not long enough for people to have forgotten facts.
The four day period for reporting an accident is to try and stop problems that might
be repeated and cause accidents.
128.In the conduct code guidelines it suggests that a matter is investigated by a
manager who should make notes and then get the individual to sign as confirmation.
However, the word "should" does not mean it is compulsory.
129.As to the adjournment Mr Cropper confirmed that the Claimant had not wanted
any adjournment to her disciplinary hearing and this issue had not been raised at the
Appeal hearing.
Mr Keith Alfred Green
130.Mr Green is the Human Resources Manager for the Isle of Man Post Office and
has held that position since February 2007.
131.In respect of disciplinary matters he described part of his work as being able to
offer advice to all parties. A member of his team would attend disciplinary hearings
in a neutral capacity to offer guidance and ensure that procedures are followed
correctly.
132.Mr Green was aware that the Claimant was offwork at Christmas 2012 and later
became aware that the Claimant had stated this was due to an accident at work.
133.In March 2013 Mr Green was informed that the Claimant wished to return to work
on light duties, but work the early shift rather than the late shift.
134. Due to the nature of her injury John Higginbotham, who was the late shift
Manager, requested that the Claimant attend Occupational Health and Mr Green
agreed with his view that it would be wise in view of the illnesses and injuries the
Claimant had suffered. This was to ensure that she was fit enough to return to work
19
and to ascertain what range of duties she could undertake in order to ensure no
further damage would occur.
135.0n 21 March 2013 Mr Ma1colm MacPherson the Managing Director, Mails took a
disciplinary hearing against the Claimant. As a result Mr MacPherson undertook
further investigation to gain a fuller understanding of the case and a review of
matters that arose during the hearing.
136. On 4 April 2013 he dismissed the Claimant without notice. This decision was
upheld by Peter Cropper, the Operations Director of the Isle of Man Post Office on
26 April 2013 and the Claimant's employment was terminated on 27 April 2013.
137.At the time of her dismissal the Claimant earned basic annual pay of £23,697.02
plus various variable allowances.
138.On cross-examination Mr Green confirmed that he was head of HR for the Isle of
Man Post Office and he understood human resources procedure and processes.
139.Mr Green confirmed he had attended the hearing with Ma1colm MacPherson, but
he did not recall whether the notes made by Dawn Kewley had been verified by the
Claimant. The quality of the notes made by Dawn Kewley did not concern him as
they were in addition to the accident report notes.
140 .Beverley Dixon would have known that the notes taken by Dawn Kewley should
have been verified. Mr Green was confident that there was only one page of notes
made. When it started it was an accident investigation, but later developed into a
disciplinary investigation unintentionally.
141.Mr Green did not fully accept that the conduct code had not been followed.
However, he accepted that at the disciplinary hearing Mr MacPherson had
potentially been unfair in proceeding on the day, because of the new allegations of
bUllying and harassment; he should have adjourned the hearing for at least five
days.
142.It would also have been good practice for Mr Green's notes to be sent to the
Claimant to be countersigned.
20
143. The Code of Conduct was prepared with the CGU and CMA and a letter sent to all
staff telling them where copies were available for inspection. New members of
staff receive a copy of the code.
144.Mr Green said that he could not be confident that all members of staff have read
the conditions of service.
145.0n re-examination Mr Green confirmed that the notes ofthe hearings were
accurate. He also confirmed that he could not be sure that new staff had actually
understood the Code of Conduct.
146.Mr Green confirmed that the three lines at the end of Dawn Kewley's notes had
been added by Bev Dixon, who would have corrected any inaccuracy in the
document.
Claimant's Case
Avril Diane Cowley
147. The Claimant confirmed that part of the duties as post person was to attend
Ronaldsway Airport to deliver business mail collected by Isle of Man Post Office to
an aircraft. This usually meant driving onto the runways to a designated parking
location where the Claimant could meet the small aircraft and load it with the
business mail bags.
148. The mail bags in total weighed in excess of30 KG (or over 60 lbs). These bags or
pouches have to be manually lifted from the post office van and onto the plane
through the hatch door. The pilot did not always assist.
149.0n the night in question, 24 December 2012, the Claimant was waiting for the
plane to arrive, but it was late. When it did eventually arrive the pilot remained on
board for speed and did not lower the steps as is normal procedure. This meant the
Claimant had to stand on the ground next to the plane and lift the mail pouches up
to chest height and pass them up and over the lower door to the pilot in the plane.
21
IS0.0ne bag was particularly heavy and she thought it was about 16 KG. Whilst lifting
the heaviest bag the Claimant felt a twinge or pull in her shoulder. However, she
thought it best to carry on at the time and tried to finish the duties. The Claimant
knew that she was off duty for the next couple of days and would be at home
resting so that whatever she had done might improve.
IS 1. Over the next few days the Claimant's right shoulder/neck began to ache and she
had pins and needles down her arm to her hand, which gradually became worse. It
got to the point where it was so bad she phoned the Manx Emergency Doctor
Service for advice and treatment. She then saw her own GP on 31 December 2012
and was prescribed medication.
IS2. The Claimant reported in sick to the Post Office and said she would not be coming
in as she had hurt herself The Claimant confirmed she did not follow the correct
full procedure for reporting an accident at work; however she did phone up more
than once to ensure her managers knew her situation and they could plan
accordingly. She later saw her line manager Dawn Kewley in order that they could
fill out an accident report form.
IS3.It was after this event that the Claimant was treated unfairly by Dawn Kewley, Mr
Malcolm MacPherson and subsequently Mr Peter Cropper - senior managers at Isle
of Man Post Office.
IS4. The Claimant was "summarily dismissed for lying and fraud" by Mr MacPherson
in relation to this incident and it was backed up by Mr Cropper at "an appeal
hearing".
ISS. The second issue where the Claimant felt she was being bullied and harassed
because of the incident was secondary and a minor point. In the main the
Claimant's dismissal was the accusations oflying and fraud with regard to the
accident.
IS6. The Claimant has served with Isle of Man Post Office for 18 years and generally
had a good service record with several recommendations for an "acting-up"
position. The only surviving supervision record confirms this. The Claimant did
22
request her personnel file, but the customer letters she had received over the years
are not on it and there is only the one supervision record.
157. These remaining records demonstrate overall a good long service record with Isle
of Man Post Office. The Claimant believes that her service record and length of
service were not taken into account during the disciplinary proceedings.
1 58. Additionally no allowance was made for:
a) The fact that the Claimant had phoned in to say she had hurt herself and would not
be in for work
b) The fact that she had phoned the MEDS service
c) That she had been examined and was being treated by her GP
d) The fact that her doctor did find she had sustained an injury, advised her what to
do and what treatment to follow
e) She was not given the benefit of the doubt - just called a liar
f) There was no corroborating evidence or witnesses
g) The short statement from the pilot was purely speculative and possibly completely
inadmissible as evidence
h) The fact that the accident happened at night and the pilot remained in the plane
and could not see the Claimant properly and would not have known she had hurt
herself
i) At the appeal hearing Mr Cropper did not refer to the statement from Val Caley
and her statement appears to have been given no credence and is not even referred
to in Mr Cropper's decision.
159. The Claimant is aware of the Isle of Man Civil Service Code of Practice and the
Isle of Man Whitley Council Code of Practice. All indicate employment practice
which appears to have been the complete opposite of what happened to the
Claimant.
160. That is why the Claimant feels that she was bullied and harassed. She considers
that she was not treated fairly nor allowed access to natural justice. It made her feel
frightened and fearful for her job.
23
161.0n cross-examination the Claimant said that she was not aware of the potential
outcome at the disciplinary hearing. Despite the letter of 14 March 2013 she did
not consider the matter was that serious.
162. The documents at 1.5 and 1.10 were given to the Claimant before the hearing -
she thinks they were sent to her.
163. The letter of 14 March 2013 made the Claimant feel upset and distressed. She
therefore did not include any comments in her reply to Mr MacPherson of 15 March
2013.
164.The Claimant said that she had sent document 1.19 to Mr MacPherson with other
documents. Although the letter is undated it was prepared in response to the letter
of 14 March 2013.
165. The Claimant said that she raised the bullying issue, because she thought that the
Post Office should not be conducting an investigation of her. Bullying was first
raised two days before the disciplinary hearing.
166. On re-examination the Claimant said that the Post Office did not believe that the
accident had occurred and that she had failed to report the accident immediately.
The Law
167. The following sections of the Employment Act 2006 are relevant. The sections
are not given in full, but are available to read at the relevant Govermnent Offices.
a) Section 111 - The right not to be unfairly dismissed
b) Section 112 - Meaning of dismissal
c) Section 113 - Fairness of dismissal
d) Section 133 - Complaints to the Tribunal
e) Section 134 - Remedies for unfair dismissal
t) Section 140 - Compensation for unfair dismissal
g) Section 142 - Calculation of basic award
24
h) Section 143 - Calculation of compensatory award
168. Section 113 (1) states that: "In determining ..... whether the dismissal of an
employee was fair or unfair, it is the for the employer to show a) the reason
for. ... the dismissal and b) that it was a reason falling within subsection (2) or some
other substantial reason of a kind such as to justifY the dismissal of an employee
holding the position which that employee held." Subsection (2) lists the reasons
which include: "(b) it related to the conduct of the employee." Whether it is fair in
the circumstances (including the size and administrative resources of the
employer's undertaking) and whether the employer acted reasonably or
unreasonably in treating it as a sufficient reason for dismissing the employee.
169. The burden of proof is on the employer to show that misconduct was the reason
for dismissal, but the burden for showing that the dismissal was reasonable is a
neutral one. Boys and Girls Welfare Society v McDonald {1966} IRLR 129 EAT
170. The employer must show that at the time of the dismissal it believed the employee
to be guilty of misconduct and it had reasonable grounds for believing that the
employee was guilty of that misconduct. It must also have carried out as much
investigation as was reasonable in the circumstances. British Home Stores v
Burchell {1978} IRLR 379
171. The Tribunal must apply the band of reasonable responses approach as set out in
Iceland Frozen Foods Ltd v Jones {1982} IRLR 439. This case is relied on in
tribunals in England and the Isle of Man. As Browne-Wilkinson LJ said in this case
"a Tribunal must consider the reasonableness of the employer's conduct, not simply
whether they (the members of the Tribunal) consider the dismissal to be fair." In
reaching their decision the Tribunal "must not substitute its decision as to what was
the right course to adopt for that of the employer".
172. The decision to dismiss the employee must "fall within the band of reasonable
responses which a reasonable employer might have adopted." This test applies to
both the decision to dismiss and the procedure by which the decision is reached.
Sainsbury's Supermarkets Ltd v Hilt {2003} IRLR 23, CA.
25
Considering The Evidence
173. The evidence ofMr MacPherson was that there might have been an accident on 24
December 2012 and that previous accidents may not have been investigated. Lack
of trust was the most important point in his decision.
174.It was clear that the Code of Conduct had not been followed completely. The
meeting with Dawn Kewley, Bev Dixon from Human Resources and the Claimant
had been recorded by handwritten notes that were undated and completed by Ms
Kewley with additional comments by Ms Dixon. It is clear these notes were
intended purely for Ms Kewley's benefit, but they had been used as part of the case
against the Claimant. They had never been read and were certainly not
countersigned by the Claimant as recommended by the conduct code.
175. There had been no investigation ofthe facts undertaken, except that carried out by
Mr MacPherson himself. The disciplinary hearing had proceeded on both the
original ground and the new allegations of bullying and harassment whereas it
should have been adjourned for at least five days to give the Claimant the
opportunity to prepare for the hearing. It is true that the Claimant agreed to proceed
without an adjournment, but it should have been given anyway.
176.Mr Green's notes of the disciplinary hearing should also have been offered for
approval and countersigned by the Claimant. This is not mandatory in the Code of
Conduct, but it is good practice.
177.Mr Cropper on the Appeal hearing also referred to Ms Kewley's notes, but did not
think they were a breach of the procedure. If they were, he did not consider them to
be fundamental to the case.
178.Mr Cropper believed that an investigation had been undertaken by Mr
MacPherson, but did not think it wrong for the investigator to also take the
disciplinary hearing. Mr Cropper said that he did not consider this to be a material
part ofthe case and therefore had not referred to it in his decision. He confirmed
that the Claimant had not been dismissed for her sick leave.
26
179.Mr Cropper said that the Claimant was very aware of the procedure for accident
reporting, even though she had denied knowing the procedure. He did not think
however that the accident had been made up in order to pursue a claim.
180.Mr Cropper said that the Claimant's length of service was taken into account.
181.In total the disciplinary process was not pursued fairly for an organisation as large
as the Post Office. The investigation was limited and appeared to only take notice
of facts that might support a dismissal. The investigating officer then dealt with the
disciplinary hearing; in an organisation such as the Post Office there is no reason
for not following the Code of Conduct, paragraph 9.3 which states that: "employees
should, wherever possible, be given the opportunity of a hearing with someone who
has not been involved in the matter."
182. The question relative to the Tribunal is whether the Post Office carried out a
proper investigation? Did they follow a fair procedure? Regarding the
investigation the Claimant had not been notified about this matter. Minutes were
not taken correctly, agreed or signed; they had been added to after the event.
183.Mr MacPherson's notes of the dismissal were not accepted by the Claimant.
184.All documentation should have been provided five days in advance and an
adjournment should have been made.
18S.An investigation interview with the Claimant never occurred.
186. Certainly on the investigation the Claimant had not been notified of this matter
and the conclusions ofthe investigation were deliberately narrow in scope. The
Post Office failed to interview the colleague who was available to swap roles with
the Claimant and in any event when she was transferred to the late shift the
Claimant claims she was given six month's right to revert to the early shift.
187. The Post Office did not interview non-management people on the list they were
gIven.
188. The Code of Conduct had not been made available to longer-serving employees.
27
189. With regard to the Claimant the Tribunal fmds that she did not assist her case by
her delay in reporting the accident, also by attending the Post Office without
warning to complete her accident report.
190. She gave vague and inaccurate answers to questions she was asked.
191. The Tribunal takes in to account the fact that the Claimant claimed to have a good
service record, however it was obvious that she had been involved in various
previous disputes regarding allegations of bullying against colleagues.
192. The Tribunal fmds that the dismissal was contributed to by these matters and that
it is just and equitable to reduce the basic and compensatory awards by 25%.
193.No finding is made as to the events of24 December 2012 and the Tribunal has
based its decision on the manner in which the Isle of Man Post Office dealt with the
Claimant.
Pension Claim
194.In relation to the claim for loss of pension rights the Tribunal takes the view that
the Claimant is unlikely to be part of a pension scheme for the rest of her working
life.
195. The sum awarded is based on this less the 25% deduction that has been made in
relation to her basic and compensatory claims.
196. The simple approach has been used to calculate the loss on the basis that both
parties recommend this method and it appears to be sufficient for use in this case.
197. The figures are agreed between the parties, except where noted:
A. Deferred Pension Calculation
Basic pay at leaving date:
Pensionable service prior to leaving
Up to 25/0311 0 (day before scheme changes)
15.2 years divided by 1/80th x £23,697.02
From 26/03/10 to EDT
28
23,697.02
4,478.74
3.09 years divided by 3/255th x £23,697.02
Total
AgeEDT
Normal retirement age
Factor to be applied as per Appendix 4 table 4.4
Loss of enhancement
Less Withdrawal Factor % to be applied
[Claimant 20%; Respondent 90%]
Tribunal decision: 30%
Total loss of enhancement
B. Loss from EDT to hearing
Weekly basic net pay
Employer's contribution on basic pay
Number of weeks between EDT and hearing
[Claimant 59 weeks; Respondent 49 weeks]
Tribunal decision
Age atEDT
Factor to be applied as per Appendix 7 table 7.2
£455.71 x 12.3% x 49 x 1.18
C. Future loss
Weekly basic pay
Employer's contribution on basic pay
Factor to be applied as per appendix 7 table 7.2
Weekly total
[Claimant 104 weeks; Respondent 52 weeks]
Tribunal decision 104 weeks
29
861.46
5,340.20
51 years
60 years
2.28
£12,175.66
£3,652.70
£8,522.96
455.71
12.3%
49 weeks
51 years
1.18
£3,240.96
455.71
12.3%
1.8%
66.14
£6,878.56
Total Pension Loss A+B+C
Less reduction of25% = £4,660.62
Dated ;p, July 2014
Peter Scott
Chairman
30
£18,642.48
£13,981.86
Notice
The Employment Tribunal (Interest on Awards) Order 1992
Tribunal Case No. 13/113
Avril Diane Cowley v Isle of Man Post Office
The Employment Tribunal (Interest on Awards) Order 1992 provides that sums of money payable as a result of the decision of an Employment Tribunal shall carry interest, where the sum of money remains unpaid on the "Calculation Day", which is the day immediately following the expiry of 42 days beginning with the "Decision Day", this being the date upon which the Tribunal's decision is recorded as having been sent to the parties.
In respect of the above case:
The Decision day is the 25th July 2014
The Calculation Day is the 7th September 2014
The prescribed rate of interest is 4% per annum.
Decision sent out. ... ;;..?0. .. :z~.'.) ..... r:?.9..!y ................. . '-...
/.(! .. {: ... ::~9..4. ........................................... " ........... .
Shirley Woods
Clerk to the Employment Tribunal
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