Industrial Tribunals Northern Ireland Decisions

 


Annesley v Lagmore Services Ltd [2008] NIIT 1192_06IT (23 January 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1192/06

CLAIMANT: Linda Annesley

RESPONDENT: Lagmore Services Ltd

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent but the claimant's own conduct was such as to make it inappropriate that any award of compensation should be made.

Constitution of Tribunal:

Chairman: Mrs Wilson

Members: Ms O'Kane

Ms T Kelly

Appearances:

CLAIMANT: The claimant appeared in person and represented herself.

RESPONDENT: The respondent was represented by Mr Henry Curran.

Sources of evidence

The tribunal heard evidence from Mr Henry Curran and Mrs Joanne Curran of the respondent company and from the claimant. The tribunal also considered the originating application, the response and documents handed in by the parties.

The issues

The issues before the tribunal were as follows:

1. Was the claimant unfairly dismissed by the respondent?
2. If the claimant was unfairly dismissed what amount of compensation is due to the claimant.

Findings of relevant fact

3. The claimant was employed as manager of Lagmore Post office from 8 April 2001 until the termination of her employment on 28 July 2006. She worked part time hours earning £9.50 per hour. Her duties included cash handling, cashing up on a daily basis, balancing the cash at the end of the working day and some supervisory responsibilities.

As manager the claimant had access to the security passwords of all staff.

4. Lagmore post office was purchased by the respondent in or about April 2006 and the claimant's contract of employment passed to the respondent at this time.
5. Lagmore post office is contained within a petrol station which is owned by the respondent and run by Mr and Mrs Curran. There are in or around 33 employees employed at the petrol station and 5 employed at the post office.
6. The claimant was summarily dismissed by the respondent on 28 July 2006. It is the claimant's case that she was dismissed because the business of the post office was not lucrative and efforts made by Mr Curran to reduce the claimant's hourly rate and increase her working hours were resisted by the claimant.
7. Mr Curran has not denied that he attempted to agree a reduction in pay with the claimant and the tribunal find that on the balance of probabilities that such attempts were made. However the tribunal also find that this was not a factor which contributed to the decision to dismiss.
8. It is the respondent's case that the claimant was dismissed for reasons relating to her conduct. The following claims were made by the respondent:-

The claimant frequently left work during working hours without permission and in circumstances where the post office staff were left unsupervised and the large safes containing significant quantities of cash were left open in breach of security considerations. Mr and Mrs Curran were particularly conscious of the lack of security because there was a cash deficit of £2,600.00 at the time of the purchase by them of the post office which the previous owners had to pay.

There were ongoing cash deficits at the post office and all the post office staff were under suspicion. One member of staff had been dismissed for dishonesty. The claimant in particular was under suspicion and Mr and Mrs Curran were aware that the claimant had financial difficulties. They were also conscious that she alone had access to all tills and to the large safe. It is their case that the claimant had to be dismissed to prevent them "losing any more money."

The claimant frequently attended at work under the influence of alcohol.

The claimant acted unprofessionally in that she ate, drank and sometimes smoked at the counter in full public view.

9. The tribunal find the respondent's allegations regarding the claimants conduct to be true for the following reasons:-

The claimant gave evidence that she left work during the working day but only during and for the duration of her lunch and tea breaks. The tribunal do not accept this. The purpose of the claimant leaving the workplace was to return to her home. The claimant lived locally but nevertheless the tribunal find that there would have been insufficient time for her to make the return trip home during her allotted break time.

The claimant admits that during her absences the post office staff were unsupervised and the money safes were open.

The claimant admits that she ate and drank at the counter.

The claimant admits that she attended work following occasions during which she would have been drinking. She admits smelling of alcohol at work and the tribunal find on the balance of probabilities that she attended work under the influence of alcohol.

The tribunal accept that there were ongoing cash deficits and that all staff including the claimant were under suspicion. The tribunal accept the respondent's evidence that they believed that the dismissal of the claimant was necessary "to prevent them losing anymore money."

10. In the light of the foregoing the tribunal find that the claimant was dismissed for the reasons relating to her conduct and that the principal reason for her dismissal was the respondent's suspicions regarding the claimant's honesty and their belief that she had to be dismissed "to prevent them losing any more money."
11. The claimant received no warnings whatever in relation to her conduct at any time during or on the termination of her employment. Mrs Curran did speak to the claimant regarding the smell of alcohol but this was not by way of reprimand or warning.
12. The respondent carried out no investigation into the conduct of the claimant generally or in relation to the cash deficits at the post office and their suspicions were never brought to the attention of the claimant.
13. The respondents failed to comply with the statutory dismissal and disciplinary procedures.
14. The claimant was dismissed without any reference being made to her conduct or to the respondent's suspicions regarding her honesty.
15. Following her dismissal the respondents became aware that the claimant had acted in contravention of post office policy in that she regularly cashed giros for customers prior to their payment date and she failed to return car tax discs in accordance with post office procedures.
16. Following her dismissal the respondents also became aware that the claimant was cashing post dated personal cheques at work in circumstances where she did not have the funds to honour the cheques. The cheques were hidden by the claimant in her office drawer. In particular the claimant cashed one cheque in the sum of £6,020 in circumstances where there were no funds to meet payment and the cheque did not clear for some 3 to 4 months. All monies due on foot of post dated cheques were eventually paid but Mr and Mrs Curran remained liable at all times for any deficit created by this and other post dated cheques.
17. The matter of using the post office funds to cash personal post dated cheques in circumstances where there were no funds to meet payment was reported to the PSNI by Mr and Mrs Curran. The police investigated the matter and a file was prepared and passed to the public prosecution service. The claimant understands that no charges are to be brought against her.

THE LAW

The Statutory dismissal and Disciplinary Procedures

The Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 apply standard dismissal and disciplinary procedures in circumstances where an employer contemplates dismissing an employee.

Article 130A of the Employment Rights (Northern Ireland) Order 1996 provides

(1) An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if:

(a) one of the procedures set out in Part 1 of Schedule 1 to The Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal and

(b) the procedure has not been completed, and

(c) the non completion of the procedure is wholly or mainly attributable to the failure by the employer to comply with its requirements

(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to a dismissal shall not be regarded for the purposes of the Article 130(4) (a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

The statutory procedures applied and were not followed by the respondents. In all the circumstances of the case and in particular given the respondent's suspicions regarding the claimant's lack of honesty, the tribunal find that the claimant would have been dismissed even if the proper procedures had been followed.

For this reason the tribunal do not find the dismissal to be automatically unfair for failure to follow the statutory procedures.

The dismissal

Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 provides:

Where an employer has fulfilled the requirements of paragraph (1) [setting out the potentially fair reasons for dismissal, one of which relates to the conduct of the employee] the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

a) depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

b) shall be determined in accordance with equity and the substantial merits of the case.

The tribunal considered the case of British Home Stores v Burchell [1980] ICR 303. That case sets out the approach to be adopted to the question of reasonableness in the context of conduct dismissals. Whether the employer's decision to dismiss was reasonable should be measured against (a) whether the employer entertained a reasonable suspicion amounting to the belief in the guilt of the employee (b) whether such belief was held on reasonable grounds and (c) whether the employer had carried out a reasonable investigation, or as much investigation as was reasonable in all the circumstances of the case.

Applying the Burchell test the tribunal find that the respondent had a reasonable suspicion amounting to a belief that that claimant was dishonest and the tribunal find that the belief was held on reasonable grounds. In reaching this finding the tribunal are mindful that the respondents were concerned by the claimant's conduct generally, they were aware of cash deficits, they were aware that the claimant had financial concerns and that she alone amongst the staff had access to all the tills and the large safes.

However notwithstanding their suspicions and the financial implications of any financial irregularity for themselves, the respondents carried out no investigation whatever into the claimant's conduct generally or into the financial irregularities specifically.

The tribunal find this surprising and following the test in Burchell find the dismissal to be unfair as a result. It is however the unanimous opinion of the tribunal that had an investigation been carried out, the respondent's suspicions would have been validated and the dismissal would have occurred in any event.

Compensation

The tribunal considered Article 156 (2) of the Employment Rights (Northern Ireland) 1996 dealing with the reduction of awards of compensation (Basic awards) which provides as follows:-

Where the tribunal considers that any conduct of the complainant before the dismissal …was such that it would be just and equitable to reduce or further reduce the amount to any extent, the tribunal shall reduce or further reduce the amount accordingly.

Article 157 (6) of the 1996 order apply the same provisions to the compensatory award.

The tribunal considered these provisions had regard to the case of W Devis v Atkins [1977] 3AER 40. The tribunal find the following extract helpful:-

Section [123(1)] does not…provide that regard should be had only to the loss resulting from the dismissal being unfair. Regard must be had to that but the award must be just and equitable in all the circumstances, and it cannot be just and equitable that a sum should be awarded in compensation when in fact the employee has suffered no injustice by being dismissed.

Under the powers conferred by Articles 156 (2) and 157 (6) and informed by the case law in particular W Devis v Atkins cited above, the tribunal assess the claimant's conduct before her dismissal was such that it would be just and equitable to reduce any compensation award for basic and compensatory awards by 100% and the tribunal so determine.

Chairman:

Date and place of hearing: 15, 16 and 19 November 2007.

Date decision recorded in register and issued to parties: