Industrial Tribunals Northern Ireland Decisions

 


Matthews v P and B Ltd (t/a Nan Rice's) (Unfair Dismissal) [2002] NIIT 3442_01 (25 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 3442/01

APPLICANT: Michael Matthews

RESPONDENT: P and B Limited

T/a Nan Rice's

DECISION

The unanimous decision of the tribunal is that the respondent did not unfairly dismiss the applicant and accordingly his complaint is dismissed. Further it is ordered that the correct names of the parties are as set out above.

Appearances:

The applicant was represented by Mr Peter Fitzmaurice, Law Centre (NI)

The respondent was represented by Mr Patrick McArdle, a director and shareholder in the respondent company.

Summary Reasons.

1. This is a complaint by Mr Matthews that he was dismissed without notice from his employment as a bar manager with the respondent on the 8 October 2001. The respondent conceded that the applicant was dismissed summarily for gross misconduct and contended that the dismissal was fair in all the circumstances.
2. The issue in this case is whether the dismissal was for a reason, relating to conduct, within Article 130 (2) (b) of the Employment Rights (Northern Ireland) Order 1996. If so, was the dismissal fair, in particular, whether in the circumstances the respondent acted reasonably or unreasonably in treating the applicant's over-claiming for hours worked as a sufficient reason for dismissing the applicant. This must be determined in accordance with equity and the substantial merits of the case.
3. The tribunal finds that the reason for dismissal was the applicant's claim for payment for hours not worked. The hours claimed were substantially in excess of the hours recorded on the record of the relevant weekly rota. Accordingly the tribunal concluded that the applicant was dismissed for a reason relating to conduct and a reason within Article 130 (2) of the Employment Rights (Northern Ireland) Order 1996. The tribunal has had regard to the provisions of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996 in determining whether the respondent acted reasonably in treating that conduct as sufficient reason for dismissal.
4. The respondent company employed six staff in the bar. The respondent had not provided staff with a written statement of terms and conditions nor did it have a written disciplinary procedure. The only directors and shareholders in the respondent company were Mr McArdle and his wife. The bar was not a busy bar and approximately 50% of its weekly turnover occurred on a Saturday.
5. The respondent employed the applicant as a bar man in April 1989. In the summer of 1989 the applicant became the Bar manager and as part of his duties it became his responsibility to prepare the staff rota and wages for all staff. The applicant was contractually obliged to work 40 hours a week. The applicant was aware that dishonesty was treated as a serious disciplinary matter and had as bar manager been involved in a number of dismissals for misconduct. There was a clear need for trust between the respondent and the applicant.
6. The respondent's director Mr Patrick McArdle discovered in early October that the applicant had not rostered himself for 40 hours duty. Mr McArdle then carried out an examination of the rota and pay records for the years ending 1999, 2000 and up to October 2001. Mr McArdle discovered on examining the records that the shortfall between the hours rostered and payment made amounted to 310 hours, 428 hours and 270 hours respectively. He concluded that the applicant had claimed payment for 40 hours work while not working 40 hours. All the respondent's staff wages were calculated on an hourly basis.
7. Mr McArdle carried out a detailed investigation into the rota and pay records. A written record was made and kept by Mr McArdle of his examination and findings from the pay and rota records. With regard to procedural matters a written note was made of the combined investigatory/disciplinary meeting held with the applicant. While it would be preferable if all disciplinary hearings followed an investigatory hearing, the respondent complied partly with the general thrust of the principles laid down in Clark v Civil Aviation Authority [1991] IRLR 412. The applicant knew the disciplinary charge against him and the information relied upon by the respondent. Mr McArdle showed him the written note made from the records. He was given an opportunity to explain himself.
8. The test of dishonesty is, as recently reaffirmed in John Lewis Plc v Coyne (2001) IRLR 139, not simply an objective test. It must be decided whether according to the ordinary standards of reasonable and honest people, what was done was dishonest. If so then consideration must be given to whether the person concerned must have realised that what he or she was doing was by those standards dishonest. In this case given the substantial discrepancy between the hours claimed for and the hours rostered the applicant's explanation given at hearing was not credible. The tribunal noted that at the time of the investigation or prior to his dismissal the applicant proffered no explanation nor did the applicant challenge the information obtained by Mr McArdle from the relevant records. Against this background the tribunal concluded that at the very least the respondent's conclusion of gross misconduct was reasonable.
9. The respondent advised the applicant that he would consider the matter over the weekend. The applicant had in the past contacted Mr McArdle at home but made no attempt to do so on this occasion. In the circumstances of this case, in particular the close working relationship between the parties, the tribunal concluded that this was one of those rare cases where it was reasonable for the employer, on the facts known to him at the time, to take the view that whatever explanation might be proffered at a subsequent meeting would make no difference to the outcome. The tribunal concluded that the failure of the respondent to hold a further meeting as agreed on the Tuesday 9 October 2001, but instead to speak to the applicant on Monday 8 October 2001, did not mean that the applicant was not given a reasonable opportunity of explaining himself before the decision was taken that he be dismissed; Bailey v B P Oil (Kent Refinery) Ltd [1980] ICR 642.
10. The applicant was not provided with a right of appeal although the only persons available to hear an appeal were the other main shareholder and director Mrs McArdle or the company accountant. Accordingly the tribunal concluded that it was not practicable to have an appeal in the circumstances of this case Tiptools Ltd v Curtis [1973] IRLR 276.
11. A breach of the Code of Practice on Disciplinary Rules and Procedure does not render a dismissal automatically unfair but is a matter to be taken into consideration by the tribunal. The respondent could not be said to have failed to apply any procedural safeguard in the circumstances of this case, Polkey v AE Dayton Services Ltd [1997] IRLR 503. The tribunal concludes on a balance of probabilities that the respondent did act reasonably in all the circumstances in dismissing the applicant. The dismissal of the applicant clearly fell within the band of reasonable responses available to the respondent in the circumstances of this complaint Post Office v Foley; HSBC Bank Ltd v Madden [2000] IRLR 827. Accordingly the applicant's complaint is dismissed.

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Date and place of hearing: 12 March 2002 and 25 June 2002, Belfast

Date decision recorded in register and issued to parties: