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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

    1

  • 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.

    2

  • 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

    3

  • 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.

    4

  • 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

    5

  • 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

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