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Case No. 13/113
THE EMPLOYMENT TRIBUNAL
A vril Diane Cowley Isle of Man Post Office
DECISION OF THE EMPLOYMENT TRIBUNAL
HELD AT: Douglas
CHAIRPERSON: Mr Peter Scott
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.
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
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
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
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.
Colin Leendert Harold Cain
Mr Cain was not called to give evidence and his statement was read to the
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
encountered any problem at the airport regarding loading or that she had injured
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.
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
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