Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2187/00

APPLICANT: Elizabeth Edwards

RESPONDENT: Joanne Elizabeth Ferguson

DECISION

The unanimous decision of the tribunal is as follows:-

(i) The applicant's complaint of unfair dismissal is well founded, but the applicant is not entitled to any compensation in respect of that dismissal.

(ii) The applicant's complaint in respect of pay in lieu of notice is not well founded and it is dismissed.

(iii) The applicant's complaint that the respondent has failed to give the applicant any pay statement as required by Article 40 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") is well founded but the tribunal has decided not to order the respondent to pay to the applicant any sum in respect of the unnotified deductions which have been made.

Appearances:

The applicant was represented by Mr D O'Sullivan Barrister-at-Law, instructed by Bogue & McNulty, Solicitors.

The respondent appeared in person.

REASONS

1. These reasons are given in summary form.
2. The applicant was employed by the respondent, in the respondent's bridal wear business, for more than two years until 10 August 2000. On the latter date, the respondent summarily dismissed her.

The complaints

3. In these proceedings, the applicant makes three complaints. First, she complains of unfair dismissal. Secondly, she makes a claim for pay in lieu of notice. Thirdly, she complains that the respondent failed to provide her with written itemised pay statements, although the applicant had an entitlement to such statements pursuant to Article 40 of the 1996 Order.

Was the applicant unfairly dismissed?

4. The applicant was dismissed by the respondent because the respondent genuinely believed that the applicant had stolen several items of expensive lingerie (as specified in a written statement which the respondent made to the police on 29 September 2000). That was a reason relating to the conduct of the applicant. That was a potentially fair reason for dismissal.
5. Because the respondent has shown that the applicant was dismissed for a potentially fair reason, the tribunal has had to determine whether the dismissal was actually fair or unfair, (in the sense in which the expression "fair or unfair" is used in Article 130(4) of the 1996 Order).
6. Where an employer dismisses for misconduct, the dismissal will be unfair if the employer forms her belief (in the employee's guilt) hastily and acts hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain herself. In such circumstances, any belief in the employee's misconduct is not based on reasonable grounds and the employer is not acting within the band of reasonable responses which a reasonable employer might have adopted.
7. Applying those principles in the circumstances of this case, we are satisfied that this dismissal was unfair because the respondent, even on her version of events, never explicitly told the applicant that the applicant was being accused of stealing the specified items (as specified in the September 2000 statement mentioned above); did not give her sufficient time to respond to any such allegation; and failed to give the applicant a fair opportunity to explain herself at the pre-dismissal meeting which was held on 10 August 2000. In reality, that meeting was not for the purpose of considering whether the applicant should be dismissed. Instead, its true purpose was to inform the applicant that the respondent had already made up her mind to dismiss her.

Should the applicant receive unfair dismissal compensation?

8. Six weeks after she was dismissed, the applicant gained other employment in which she was paid rates of remuneration equal to or greater than the rates of remuneration which she received while employed by the respondent.
9. As a result of the respondent's complaint to the police, the applicant's home was searched by the police. In the course of that search, they discovered over 130 items of expensive lingerie. For reasons which are explained below, the tribunal is satisfied that the applicant had, during the course of her employment with the respondent, stolen the great majority of those items from the respondent.
10. Article 156(2) of the 1996 Order provides that, where the tribunal considers that any conduct of the complainant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, the tribunal must reduce the basic award accordingly. In this tribunal's view, because of the fact that the applicant stole most of the relevant items (the items referred to at paragraph 9 above), it is just and equitable to reduce the amount of her basic award to nil.
11. Article 157(1) of the 1996 Order provides that the amount of compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal. This tribunal considers that, because of the thefts, it is just and equitable to make a nil compensatory award in this case.

The theft issue

12. How did the applicant come to be in possession of the items ("the relevant items") which were found by the police when they searched the applicant's house? (See paragraph 9 above).
13. According to the respondent, the great majority of the relevant items were stolen from the respondent's business.
14. According to the applicant, up to 70% of the relevant items came from the respondent's business; the other 30% were mainly bought by the applicant in various shops in Great Britain or were gifts which were given to the applicant by a female Italian friend of hers.
15. According to the applicant, the 70% of the items which came from the respondent's business ended up in her possession mainly in the following circumstances. A substantial number of items were given to her by the respondent as a wedding present. A substantial number of items were given to the applicant by the respondent as a reward for being a good employee. A significant number of items were bought from the respondent by the applicant's husband and were given to her by her husband as presents.
16. In evidence to the tribunal, the respondent denied that she had given any items of lingerie to the applicant as a wedding present. She also denied that she had ever given the applicant any lingerie as a reward for her work. She also denied that the applicant's husband had bought many items in the respondent's shop.
17. The tribunal heard oral testimony from the applicant and the respondent. Mrs Margaret Waterson, a friend of the applicant, also gave evidence on her behalf. Mrs Waterson told the tribunal that she had seen the respondent give the applicant a gift of lingerie as a reward for work well done. She also told us that, at the applicant's wedding reception, the respondent told her that she (the respondent) had given the applicant lingerie as a wedding present. She also told us that she had seen the applicant buying a substantial number of items of lingerie at shops in the North of England.
18. It has unfortunately been necessary for us to come to conclusions on the theft issue. In doing so, we have had regard to the applicable legal principles, which are as follows. Proof on the balance of probabilities will suffice, as a matter of law, when the commission of a crime is alleged in civil proceedings, but cogent evidence of any such allegation is necessary.
19. We carefully noted the demeanour and manner of giving evidence of the applicant, of the respondent and of Mrs Waterson respectively. Having done so, we were satisfied that, on all matters relevant to the theft issue, the testimony of the respondent was more convincing and credible than the evidence of the other two witnesses. In deciding the theft issue in favour of the respondent's contentions, we also took account of the following findings of fact:

(1) The allegation that the relevant items were stolen from the respondent led to a lengthy criminal investigation, but no criminal charges were ever brought.

(2) Mrs Waterson never had any contact with the police in the course of that lengthy investigation.

(3) The applicant has never produced a receipt for any of the relevant items.

(4) Some of the relevant items were not in the applicant's size.

(5) The respondent bought the applicant an expensive art deco tray as a wedding present.

(6) Items identical to all of the relevant items had been stocked by the respondent's business at some stage.

(7) The aggregate retail value of the relevant items was approximately £5,000.00. All of them were items of relatively expensive lingerie.

(8) In her originating application in these proceedings the applicant confirmed that, apart from wages, she did not receive "any other bonuses/benefits, etc".

(9) Like other employees of the respondent's business, the applicant was free to buy items of lingerie at cost price, which was approximately 50% of retail value.

(10) During the course of her employment, the applicant's wages never exceeded £200.00 per week.

(11) The applicant was one of a small number of employees who were employed in the respondent's business. She was the only employee who was involved in administration or sales.

Was the applicant entitled to notice pay?

20. Because of the fact that the applicant stole the great majority of the relevant items, she was guilty of gross misconduct. Accordingly, at common law, the contract was terminable without notice by the respondent, by reason of that conduct. (See Article 118(6) of the 1996 Order). Therefore, the provisions in respect of notice which are set out in Article 118(1) of the 1996 Order do not apply in the circumstances of this case. Accordingly, the applicant

had no entitlement to any notice of termination of employment, whether under Article 118 or otherwise.

The failure to provide pay statements

21. The respondent admitted that she had failed to comply with the obligations which were imposed upon her, in relation to the applicant, by Article 40 of the 1996 Order. (Article 40(1) provides that an employee has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement).
22. This tribunal has power, under paragraph (4) of Article 44 on the 1996 Order, to order the respondent to pay the applicant a sum not exceeding the aggregate of the unnotified deductions made during the period of thirteen weeks immediately preceding the date of the presentation of the originating application in these proceedings. The tribunal notes that the applicant has not asserted that any of the unnotified deductions were made for an improper purpose. Having had regard to all the circumstances, the tribunal exercises its

discretion by deciding not to make any order of the type contemplated by Article 44(4).

The jurisdictional issue

23. According to the applicant, she was always paid partly in cash and partly by cheque. However, even if that version of events is correct, there is insufficient evidence that the applicant actually knew that these methods of payment were being used for the purpose of defrauding the Revenue. (See Newlands –v- Simons and Weller (Hairdressers) Ltd [1981] ICR 521). Therefore, any illegality, in the context of the operation of the relevant contract of employment, does not deprive this tribunal of jurisdiction.

Chairman:

Date and place of hearing: 21 and 22 February 2005, Belfast.

Date decision recorded in register and issued to parties: