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

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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,

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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