THE INDUSTRIAL TRIBUNALS 

CASE REF:	9597/03

	

APPLICANT:	Francis Peter Nelson			

RESPONDENT:	Clarehill Plastics Limited		 

DECISION 

The unanimous decision of the tribunal is that the tribunal dismisses the applicant’s claim for unfair dismissal.

Appearances:
The applicant was represented by Mr J Doran, Liaise Lurgan. 
The respondent was represented by Mr P Bloch of Engineering Employers’ Federation.

1.	These reasons are given in summary form.
 	
2.	The applicant claimed unfair dismissal.  The respondent asserted that the applicant was dismissed for gross misconduct.

3.	The tribunal made the following findings:-

(a)	The respondent employed the applicant from 4 January 1997 to 24 November 2003 as a forklift truck driver.

(b)	The respondent dismissed the applicant on 24 November 2003 for gross misconduct.

(c)	The alleged misconduct was that the applicant had breached health and safety requirements;  had been dishonest and;  had committed a breach of trust.

(d)	The alleged misconduct arose from an incident on 7 October 2003 at about 7.30 am when the applicant drove a forklift truck making a sharp right hand turn which caused the truck to overbalance whereby he sustained a broken right wrist and an injury to his right shoulder and damaged the truck.  The applicant was driving the truck at 15-20 mph and with the clamps on the forklift raised to 2.7m.

(e)	The applicant, a qualified forklift driver, accepted that it was not good practice to drive the forklift with the clamps raised to 2.7m.  He alleged that the forklift had collided with part of a concrete breeze block which had caused it to overbalance.

(f)	A dismissal for conduct can render a dismissal fair.

(g)	For conduct to render a dismissal fair an employer must have a reasonable belief that the employee has committed an act of misconduct, having carried out a reasonable investigation and dismissal must be within the band of reasonable responses.

(h)	Following an investigation of the accident the respondent had a suspicion of misconduct by the applicant.  Charges were brought against the applicant and a disciplinary hearing was held on 3 and 17 November 2003.  The respondent concluded that there had not been a breeze block on the ground when the truck overbalanced and that it had been put there by the applicant to explain the overbalancing and he had told lies about the matter.  The respondent dismissed the applicant.

(i)	The respondent carried out a reasonable investigation and disciplinary hearing.  The applicant did not pursue his appeal.

(j)	The respondent had a reasonable belief that the applicant had committed an act of gross misconduct and dismissal is within the range of reasonable responses.

(k)	Accordingly the respondent’s dismissal of the applicant was not unfair and the applicant’s claim for unfair dismissal is dismissed.

Chairman:

Date and place of hearing:	7 January and 4 February 2005, Belfast.

Date decision recorded in register and issued to parties: