Industrial Tribunals Northern Ireland Decisions

 


Morris v Dummigan & Ors (Unfair Dismissal/Brach of Contract) [2002] NIIT 01737_00 (28 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 01737/00

APPLICANT: Ciara Morris

RESPONDENTS: 1. Martin Dummigan

2. May Gray

3. Donna Loughran

(As representatives of the Management Committee of Stepping

Stone)

DECISION

The unanimous decision of the Tribunal is that the applicant's complaint is dismissed, without further order.

Appearances:

The applicant was represented by Mr K Denvir, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.

The respondent was represented by Mr M Dummigan, of the respondent's Management Committee.

THE ISSUE

1. The applicant complained of 'unfair dismissal, breach of contract'. The respondents conceded that the applicant had been dismissed, but contended that the dismissal was fair. The Tribunal accordingly had to determine the applicant's complaint and whether the dismissal was fair or unfair. In this decision the respondents are referred to as 'Stepping Stone' or 'the respondent', the Management Committee being treated as a corporate entity in the singular.

THE TRIBUNAL'S DECISION

In reaching its decision the Tribunal has had regard to all matters, both oral and written, raised by the parties in the rather extensive evidence in the matter and to its findings of fact. The reasons are given in summary form. The Tribunal found the following facts:-

2. The respondent was a small organisation offering preventative mental health services. Management was entrusted to a project manager ('Project Co-Ordinator') Ms Emer De Baroid, who was a trained and experienced Counsellor, and who reported to a Management Committee. That Committee had overall responsibility for the management and control of the organisation. The Committee Chairperson was Ms Angela Hughes. Stepping Stone served a client base including, materially, a number of vulnerable children and young persons.
3. Issues relating to the control and maintenance of client records and files, and issues of confidentiality arising therefrom, are noteworthy. Individual client files were maintained and were kept in a filing cabinet in a strong-room in the premises. Any Counsellor dealing with a particular client had free access to all files relating to that Counsellor's individual clients, but not to those of clients of other Counsellors. Members of the respondent's Management Committee did not have access to client files, but the respondent took the view that the Co-Ordinator did have right of access, as necessary, for management purposes.
4. After having first worked in Stepping Stone as a Volunteer Counsellor, on 14 September 1998 the applicant was appointed to the post of Therapist/Counsellor for Children and Young People for a fixed term of two years. The applicant's job involved dealing with some children and young people who were extremely vulnerable and who had been or were suspected of having been the victims of sexual and other forms of abuse.
5. In November of 1999, a child client ("Child X") did not attend for appointment. The applicant voiced concerns to Ms De Baroid at the time. Issues arising from that case emerged again in late February of 2000. Ms De Baroid asked the applicant for the notes of any sessions with that client. Having checked the appointments records, Ms De Baroid's initial enquiries suggested that a significant number of sets of notes was missing from the "Child X" case file. Ms De Baroid raised her concerns about this with the applicant, and interpreted the applicant's attitude in response as being defensive. She also believed that the applicant had delayed bringing to her attention issues of potential abuse. In addition, there was an issue regarding certain difficulties that the applicant was then experiencing in both external and internal supervision ('supervision' in counselling being a particular structured forum available to Counsellors to help in resolving professional conflicts and difficulties).
6. Ms De Baroid then approached the Chairman of the Management Committee, Ms Hughes, and voiced her concerns. Ms De Baroid informed the applicant that she had talked to Ms Hughes and invited the applicant to arrange a meeting with Ms Hughes. The applicant declined that offer.
7. Ms De Baroid met with the applicant in early March 2000, having prepared a list of areas of concern which she wanted to review with the applicant. That meeting illustrated a significant difference in perception between the two in regard to the issues of duties and responsibilities and of managerial prerogative and control. Towards the end of the meeting Ms De Baroid alluded to possible disciplinary action being taken against the applicant. In response, the applicant stated that there was no possibility of her accepting disciplinary sanction in respect of what had occurred and the applicant indicated that she might take legal proceedings. The meeting ended with conflicts unresolved and in a highly charged state.
8. A formal meeting between the applicant and Ms Hughes took place on Wednesday 19 April 2000. Amongst other issues arising, the applicant expressed concern that a number of client files were not where they should be. The applicant stated that she had noticed late on the previous Friday evening that files were missing. She was off work ill on Monday. On Tuesday evening she had checked to ascertain if the files were at some other location but had not located these. She had decided not to say anything, but to discuss the situation at the meeting on the following day, Wednesday. When asked by Ms Hughes for an explanation as to why the issue of the files had not been reported, the applicant's answer was that she was a responsible professional Therapist and she did not act. Ms Hughes then announced that the applicant was to be suspended on full pay while further investigations took place. Ms Hughes believed that she had the contractual entitlement to take this step and to further conduct any disciplinary proceedings, the view being taken that it was not appropriate for Ms De Baroid, who had primary contractual responsibility, to take charge of the process.
9. In regard to the issue of the files, on 17 March 2000, when the respondent's office had been closed, and without informing any other person that she was conducting this investigation, Ms De Baroid had removed for inspection seven files relating to the applicant's clients. She had ascertained that a significant number of sessional notes and records were apparently not present on the files. Ms De Baroid did not return the files to the filing system, but rather secured these files in her own private filing cabinet. The applicant had been on vacation and returned about 24 March 2000. She did not immediately notice that these files were not in their proper place. For whatever reason, Ms De Baroid chose initially to keep the information to herself and not to impart this to the Management Committee nor to the applicant. Ms De Baroid then prepared a report suggesting that, out of a total of sixty-five client sessions in these seven cases, there were thirty-five case notes (54%) missing. This report was furnished to Ms Hughes.
10. After the meeting of 19 April 2000, it was decided that a disciplinary hearing would take place. By letter dated 20 April 2000 from Ms Hughes, the applicant was informed concerning the issues to be addressed at the disciplinary hearing and of her entitlement to be accompanied.
11. At a disciplinary hearing on 3 May 2000, Ms Hughes heard from the applicant details of when the applicant had discovered the files were missing and why she had decided to leave reporting until the meeting of 19 April 2000. Ms Hughes pointed out that this amounted to not reporting missing files for five days. Ms Hughes stated that the files had been in the possession of Ms De Baroid. Ms Hughes also stated that her investigations had revealed significant instances of failure to file sessional notes in these files before the Co-Ordinator had removed the files. At that point, Ms Morris asked if she was being 'set up'. Ms Hughes denied that. Ms Hughes repeated the questions and asked the applicant if she was going to co-operate in the investigation. The applicant answered, "No" and said that she was not prepared to be set up. The applicant stated that she was in shock and was not equipped mentally to discuss the matters. Ms Hughes emphasised that she needed some sort of co-operation. The applicant replied that she was not equipped (to co-operate) and wanted a decision. The meeting then concluded and the applicant was informed that she would remain on suspension with pay pending a resolution.
12. On 5 May 2000 Ms Hughes wrote a letter to the applicant detailing the respondent's view of what had occurred at the meeting on 3 May 2000. The letter stated that this was an unacceptable situation as it hindered Ms Hughes' attempts fully to investigate and to give everyone a fair opportunity to explain their situation. The letter fixed a reconvened meeting for 10 May 2000 and encouraged the applicant to provide her co-operation. The reconvened hearing took place on 10 May 2000. Present at that meeting were Ms Hughes, a fellow Management Committee member, Ms May Gray, and the applicant, accompanied by a fellow employee Counsellor, Ms Helena Stuart. At the outset of the meeting, Ms Hughes recounted what had occurred at the 3 May 2000 meeting. She then put the allegation of delay in reporting of the missing files to the applicant. The applicant's response was to state that it was morally wrong to remove files without the Counsellor being consulted and also stated that client consent was required for the Co-Ordinator to see files. She stated that this was a case of 'entrapment' and asked why she was not told of the files being removed. Ms Hughes responded that, regardless of why the files were removed, she wished to know why the applicant did not immediately report files missing. Ms Morris' response that she had taken a professional decision to wait (until 19 April 2000) to report. Ms Hughes then put the statistics concerning the seven files, the number of missing notes in each case, and the totals and the percentage represented thereby to the applicant. The applicant did not respond to that information, but stated that what the Co-Ordinator had done was fundamentally wrong. Ms Hughes stated the respondent's view that the Co-Ordinator had the right to examine the files if she was suspicious. The applicant replied that this was unethical. The applicant then stated that she would not be drawn into a debate and invited the respondent to interpret it any way it wanted. Ms Gray then asked the applicant if this was a case of non-recording or, if recorded and filed, if someone else might possibly have removed the papers. The applicant replied that she did not trust two leaders of Stepping Stone but did not elaborate further.
13. Ms De Baroid had prepared two envelopes prior to the 10 May 2000 meeting. One of these was to be given to Ms Hughes, and one to the applicant. The applicant's apparently contained information and names identifying clients relating to the case files which were to be discussed at the hearing. This material, presumably for reasons of confidentiality, was not to be placed before Ms Hughes. The applicant spotted something and asked Ms Hughes did she have the applicant's notes amongst the papers before Ms Hughes. Ms Hughes denied this. However, when the papers were further examined it appears that there were two pages included amongst the papers before Ms Hughes. These consisted of either original or photocopied notes from the applicant's case files. Ms De Baroid was called into the room to examine the bundle. She removed these two pages and then left the room. There occurred at the time certain events which were the subject of conflicting evidence. This particular matter shall be further referred to by the Tribunal below.
14. As a result of the finding of these two pages included amongst Ms Hughes' papers, the applicant and her companion, Ms Stuart, indicated that the inclusion of these two pages were greatly significant and the applicant declared that she could no longer trust the two people at the heart of the investigation. The applicant was again pressed by Ms Hughes for an explanation in respect of the delay in reporting the files missing and the high percentage of case notes missing. The applicant maintained that she had provided answers. However the respondent's interpretation was that the applicant was failing to provide any explanation. At that point the meeting concluded.
15. Upon the conclusion of the meeting, a decision was taken by the respondent to dismiss the applicant upon grounds of gross misconduct. A letter was written to the applicant setting out the reasons for the dismissal of the applicant, which was with immediate effect, from 12 May 2000. At the conclusion of the letter, it was confirmed that the applicant had a right of appeal and a right to be appropriately accompanied thereto. On 16 May 2000 the applicant wrote a letter addressed to all members of the Management Committee setting out her views in respect of what had transpired and requesting an appeal.
16. The appeal hearing took place on the 26 May 2000. It was chaired by Ms Liz Toman of Craigavon Independent Advice Centre, accompanied by two members of the respondent's Management Committee who had not been involved in the earlier disciplinary process, Ms Carmel Young and Ms Claire McCann. The appeal commenced with the panel members receiving the respondent's written minutes of the earlier hearings and a copy of the applicant's appeal letter. The stated concern of the panel was to consider the written evidence, if the procedures employed in the earlier disciplinary process were fair, and whether or not the applicant had been given a fair opportunity to answer any allegations. It was specifically indicated that, whilst new evidence would be considered, the panel would not re-run the dismissal hearing. The panel was, further, to consider whether or not the sanction of dismissal imposed was appropriate. The appeal panel interviewed, in turn, Ms Hughes and then Ms Gray, and addressed the issue of why the applicant, from the record, appeared not properly to answer questions put to her, and also the issue of whether or not Ms Hughes had been aggressive towards the applicant, thereby possibly preventing the applicant from making out her case. Ms Hughes denied that she had been aggressive and indicated that she had tried everything to get answers. Ms Gray declared her view to be that Ms Hughes was fair and had put her questions without aggression and that the applicant was not stressed but simply would not answer the questions put to her.
17. The panel then interviewed the applicant who maintained that she had answered the questions put to her but because the persons involved in the disciplinary hearing did not like the answers, they had said that she had not answered. Ms Toman then asked the applicant if she was alleging harassment. The applicant replied that Ms Hughes knew that the Co-Ordinator had taken the files and that she (the applicant) had become emotional but Angela Hughes had kept on asking and she could not answer. Ms Toman then asked the applicant why particularly at the meeting of 10 May 2000 she did not answer. The applicant stated that she did answer but people chose not to listen. The appeal panel then reviewed the matters addressed and decided that fair and adequate procedures had been followed and that the appeal should be refused.

THE TRIBUNAL'S DECISION

18. The respondent purported to dismiss the applicant on grounds of gross misconduct. The task of the Tribunal is to establish, in such a case of alleged gross misconduct, which would on the face of it be a potentially fair reason for dismissal, whether the respondent had acted reasonably or unreasonably in all the circumstances in treating the reason as sufficient. The statutory test is that contained in Article 130(4) of the Employment Rights (Northern Ireland) Order 1996. In the application of this, the Tribunal is mindful of the guidance stemming from the case of Iceland Frozen Foods Limited -v- Jones [1982] IRLR 439 which includes (inter alia) the observation that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another. The Tribunal has to determine whether or not, in the particular circumstances of this case, the decision to dismiss the employee upon the grounds indicated fell within the band of reasonable responses which a reasonable employer might have adopted.
19. The respondent has set forth the reason for the dismissal, gross misconduct. The respondent has further stated that this gross misconduct stems from a number of factors which, in themselves, might not have been sufficient to warrant dismissal. The Tribunal accepts that the respondent had good reason to suspect that the applicant's record-keeping was deficient. The applicant failed to provide a satisfactory argument to meet and to counter the evidence that was against her on this. The respondent was thus entitled to have legitimate concerns that the interests of vulnerable clients of the project might thereby have been placed at risk. The Tribunal can disregard neither the very specific and undesirable consequences which might flow from failure to maintain adequate records when dealing with clients who represented amongst their number the most vulnerable in society, nor the very particular view of risk which the Tribunal accepts impacted upon and influenced the respondent's approach to the matter. The respondent was furthermore entitled to take the view that there had been a failure on the applicant's part to observe that files were missing over a number of weeks and then, once that fact was realised, a failure immediately to report files as missing to someone in authority. Quite understandably, this caused the respondent to harbour serious concerns. The perceived lack of co-operation on the part of the applicant with the investigatory and disciplinary process might well have been engendered in whole or in part by a clash of perceptions. The Tribunal heard and considered the extensive arguments upon issues of professional ethics. However, as the respondent's perception of this lack of co-operation was, in the Tribunal's view, legitimate, what was the respondent to do if the applicant failed to give a full account for herself, or if she came across as being evasive and defensive? Mindful of the appropriate considerations, nonetheless, the Tribunal cannot disregard the responsibility on the part of any employee properly to articulate his or her case. This the applicant clearly failed to do at the material time. A clash of perceptions does not provide the applicant with an escape from this.
20. The Tribunal is not of the opinion that there was any conspiracy between Ms De Baroid and Ms Hughes to get rid of the applicant. Ms De Baroid's method of conducting her enquiries may have been, to say the least, rather unwise. However, the Tribunal does not believe that this translates via other evidence into a conspiracy. An example is useful to illustrate this; this is an example most strongly emphasised by the applicant in arguing conspiracy. Having carefully analysed the conflicting evidence as to the alleged events occurring after Ms De Baroid and Ms Hughes left the hearing room on the 10 May 2000, and the words alleged to have been spoken between the two suggestive of, variously, a conspiracy or entirely neutral, in determining the facts the Tribunal fails to discern the manner in respect of which this particular element of the alleged conspiracy was supposed to operate in practical terms to the respondent's advantage. What was the purpose of the alleged conspiracy between Ms De Baroid and Ms Hughes to engage in some strategy so easily detectable and so full of risk, by the purposeful inclusion of the applicant's case notes in Ms Hughes' papers? How were those papers to be employed in the working out of the conspiracy? The tribunal cannot discern any purpose, and feels compelled to resolve the conflict in favour of the explanation of a mistake rather than a conspiracy, a mistake indeed in regard to which Ms De Baroid sustained thereafter a disciplinary sanction. Furthermore, the Tribunal does not believe that the arguably unwise and secretive information-gathering approach taken by Ms De Baroid renders the entire process of enquiry and discipline so manifestly unfair as to give rise to a serious or a fundamental unfairness.
21. The applicant has referred to the observations of Lord Bridge in Polkey (see Polkey v A E Dayton Services Ltd [1987] 3 All ER 974) upon the issue of affording a proper investigation and proper hearing and has argued that the respondent's procedures were fundamentally flawed in a number of respects. It is argued that information was unfairly obtained by Ms De Baroid, that the applicant was set up, that there was entrapment, that the disciplinary process was driven by Ms De Baroid and was conducted by a co-conspirator, Ms Hughes, and by a passive, ineffectual "pawn", Ms Gray - that the process was a sham. The Tribunal cannot accept such a contention upon the facts. There are many factors suggesting that the process was not designed to be a sham, but rather to afford a degree of fairness to the applicant. By way of example, the process followed an ostensibly fair structure, despite the small size of the respondent's organisation. The respondent sought legal and other advice upon fair procedure. The applicant was properly and fairly invited to attend investigatory and disciplinary meetings, and was advised of her right to be appropriately accompanied. These meetings were appropriately adjourned and reconvened. There was an appropriate degree of formality attached to the process. The process was rather protracted but this was, it appears, to suit the applicant's needs. The Tribunal, taking all the facts into account, cannot determine that there has been any significant degree of procedural unfairness. It has been argued that the applicant was either not afforded an opportunity to meet the charges against her or that her responses were ignored - that there were serious procedural flaws and there was not a fair hearing. Taking into account all of the evidence, the Tribunal cannot concur. The Tribunal has commented above upon the applicant's failure to articulate her case. The conclusion to be drawn from the facts is that the applicant was afforded a reasonable opportunity to make out her case, both at the disciplinary and at the appeal stages of the process.
22. Breach of contract has been argued, both of express and of implied terms of the employment contract. Express breach has been said to flow from, for example, Ms Hughes exercising the disciplinary function whereas the contract expressly states that the function rests with the Co-ordinator, or by the suspension from work of the applicant by Ms Hughes pending the investigation being concluded. Where, as in this case, it is inappropriate or impossible for an expressly designated member of management to exercise authority, that authority can, in the Tribunal's view, be exercised by the highest authority in the organisation, in this case Ms Hughes as chair of the Management Committee. Breach of implied term is argued by the applicant to flow from breach of the implied term of trust and confidence that ought to exist in every contract of employment (see Malik v Bank of Credit and Commerce International SA [1997] 3 All ER 1) by the respondent failing to give the applicant an opportunity to state her case (see Medical Protection Society v Rees - 05/10/2001 unreported transcript) or by suspending the applicant without reasonable and proper cause because an investigation was taking place (see Gogay v Hertfordshire County Council [2000] IRLR 703 CA). Having considered the evidence and the arguments, the Tribunal does not determine that there has been any material breach of any express or implied term of contract.
23. Faced with the cumulative total of the facts and perceptions which the respondent encountered in the course of the disciplinary process, the Tribunal takes the view that the employer's decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. Furthermore, despite the constraints placed upon the appeal process which have been alluded to above, the appeal process neither added to nor did it detract from the fairness of the original decision to dismiss, in the Tribunal's view.
24. This being the case, the Tribunal is unable to find in favour of the applicant and, accordingly, the applicant's complaint is dismissed, without further order.

Chairman:

Date and place of hearing: 18-22 February 2002; 15-17 April 2002; 13-15 May 2002; and

28 June 2002, Belfast

Date decision recorded in register and issued to parties: