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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Weldon v Brinks (Ireland) Limited [2010] NIIT 6878_09IT (28 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6878_09IT.html
Cite as: [2010] NIIT 6878_9IT, [2010] NIIT 6878_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6878/09
CLAIMANT: Gareth Weldon
RESPONDENT: Brinks (Ireland) Limited
DECISION
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed contrary to Article 130(A) of the Employment Rights (Northern Ireland) Order 1996 and is entitled to receive compensation in the sum of £2,280.13. The claimant’s complaint of unlawful sex discrimination was dismissed following its withdrawal by the claimant.
Constitution of Tribunal:
Chairman: Ms J Knight
Members: Mr S Devlin
Mrs T Kelly
Appearances:
The claimant was represented by Mr Neil Richards BL, instructed by O’Reilly Stewart Solicitors.
The respondent was represented by Mr Tom Sheridan of Peninsula Business Services Limited.
Issues
1. The claimant lodged a complaint of unfair dismissal and unlawful sex discrimination which was received by the Office of Industrial Tribunals and the Fair Employment Tribunal on 28 August 2009. At the outset of the hearing the tribunal dismissed the claimant’s complaint of unlawful sex discrimination following its withdrawal by counsel for the claimant. Mr Sheridan advised the tribunal that the respondent accepts that it had failed to follow the statutory dismissal procedures and therefore accepted that the claimant’s dismissal was automatically unfair pursuant to Article 130A of the 1996 Order. The issue to be determined by the tribunal was therefore whether the claimant was entitled to receive compensation for his dismissal and if so, the amount.
2. The tribunal heard the oral evidence of the claimant, Mr Gary Weldon and Mr Seamus Cullen and Ms Lyndsey Tully for the respondent and considered an agreed bundle of documentation and Schedule of Loss.
Facts
3. The claimant, Mr Gareth Weldon, was employed by the respondent from 5 November 2001 until 5 June 2009 as a Cash Processor. He was 44 years old at the effective date of dismissal and his gross weekly pay was £268.25. The respondent, Brinks (Ireland) Limited, provides cash handling services including the collection and processing of cash from retail premises and lodgement into the customers’ bank. Mr Seamus Cullen is the Branch Manager for Brinks in Belfast. One of the respondent’s main customers is Boots which has a number of stores throughout Northern Ireland.
4. Another security company, G4S collects cash contained in wallets from the till at Boots stores and puts the wallets into sealed bags. Each sealed bag has a unique computer generated bar code number and is tamper proof. The number of plastic wallets is recorded on the outside of the sealed bag. Normally the amount of cash contained within each bag is not recorded. The respondent then collects the bags from the G4S depot and brings them to the respondent’s premises, where the bags are individually scanned into the vault. The bags are then placed into trolleys which are taken to the cash processing area to be counted and put into the bulk lodgement.
5. Apart from the claimant there were five other employees in the cash processing department. At the time of his dismissal the claimant and his colleague K worked mainly on the Boots account. Another part time employee, B worked on the Boots account on Mondays and Tuesdays until February 2009. The respondent’s employees each have their own unique identity number which is keyed into handheld scanners used to scan the bags in the cash processing area. Each bag is scanned as it is opened by the person opening the bag who then counts the number of wallets inside the bag and then the money inside each wallet. Any discrepancy between the number of wallets contained inside the bag and the number recorded on the bag or any damage to a bag is notified to Boots on a “conformance” report. The amount is recorded and the cash is then passed to the cash processor working alongside for verification. That amount is then put into the bulk lodgement to the customer’s bank account. In the case of Boots account there is a “blind counting” system in that the respondent is not normally aware of the amount of cash which is supposed to be in the wallets inside the sealed bag. The bank informs Boots of the amount of the total lodgement which is then checked off against the till receipts.
6. The claimant told the tribunal that his own practice was to open the bag, count the number of wallets inside, count the contents of the wallets and then scan the bag. The claimant told the tribunal that other employees knew his personal identity number and on a rare occasion he would scan bags for other people so that they could open and count the bags. However he would scan bags for B before she left the respondent’s employment. The cash is counted by table top counting machines. The claimant would set the machine to count ten pound and twenty pound notes in batches of one hundred. Euro and five pound notes were counted by hand. The claimant told the tribunal that a few weeks before his dismissal he reported to his supervisor that the machines were faulty but the maintenance company refused to carry out repairs because of an unpaid account. There was no evidence before the tribunal to corroborate this statement.
7. In early May 2009 Boots informed Mr Cullen that there had been a large number of discrepancies from the cash deposit. He advised that stores had been put “on check” and the till takings were counted before leaving Boots and compared with till receipts which suggested that the discrepancies arose after the cash had arrived with the respondent. Mr Cullen was requested to carry out an investigation. Accordingly Mr Cullen attended at the cash up each night from 4 to 8 May at Boots, Bangor Store. Two of the respondents supervisors, Mr Wilsdon and Mr Sinclair were aware of the investigation at the Bangor Road store. During that week the claimant was on annual leave. Mr Cullen observed the till takings being counted and put into the high security tamper proof bags by Boots’ staff. This meant that both Boots and Mr Cullen were aware of the amount contained in each bag before it left the store. No discrepancies were found in the lodgements made by the respondent from the Bangor store for this period.
8. However further discrepancies subsequently occurred and Mr Cullen was invited to attend at the cash up at the Boots, Boucher Road Store from 18 until 23 May 2009. No one else from the respondent company was aware of this exercise. There were shortfalls in the lodgements and when Mr Cullen carried out checks he ascertained that discrepancies had occurred in relation to bags which had been processed by the claimant. There was a shortage of £100.00 in respect of a bag processed by the claimant on 21 May 2009 and a shortage of £120.00 in respect of a bag processed by him on 15 May 2009. Also on 15 May there was an overage of £53.00 in respect of another bag processed by the claimant. Boots provided a list of previous occasions when it was alleged that shortages had occurred. Mr Cullen then looked back at previous weeks to see who had processed cash where Boots said that there had been shortages and on most of these occasions the record shows that the claimant had processed the bag. Mr Cullen told the tribunal that it was normal to have discrepancies and there is a “tolerance level” of a difference of £10.00 either way.
9. On 29 May 2009 the claimant was asked to attend an investigatory meeting with Mr Gary Sinclair and Ms Nuala Kelly, Human Resources Officer. He was asked a set of questions relating to his procedures and method of counting the cash. The same questions were put to all members of the cash processing section. The claimant was informed that shortages had been reported by Boots and that these counts had been verified at the store by Mr Cullen. The claimant made no comment. He was informed that the shortages would be reported to the PSNI and after the interview terminated Ms Kelly advised the claimant that a number of shortages had been recorded against his name and that he would be suspended from duty with immediate effect pending further investigation.
10. Mr Cullen wrote to the claimant on 2 June 2009 inviting him to attend a disciplinary hearing on 5 June in regard to “the allegation of shortages of the Boots takings which you had responsibility of processing. Please find enclosed a copy of documented shortages. It should be noted that on the week of the 4 May 2009 until the 8 May 2009 inclusive whilst you were on holiday there were no shortages from the Boots Bangor Store. The takings from the store had also been verified by Seamus Cullen and Gary Wilsdon”. The letter purported to enclose the documented shortages and the minutes of the investigative meeting held on 29 May 2009 and the company’s disciplinary procedure. The letter advised the claimant “subject to the outcome of the disciplinary hearing and the facts established at the same, the outcome could result in disciplinary action up to and including final written warning, however decision on this will not be made until you have had a full opportunity to put forward your version of events and the hearing has been concluded”. The claimant was advised that he was entitled to be accompanied at the meeting by a colleague or trade union representative. The respondent’s case was that the words “up to and including final written warning” were included by mistake due to an administrative error. As a result of this, however the respondent accepted that there was a failure to comply with Step 1 of the statutory dismissal procedures.
11. The disciplinary hearing was chaired by Mr Cullen, with Ms Nuala Kelly present taking notes. The meeting was adjourned shortly after it began, at the request of the claimant, to permit his colleague to accompany him. The claimant was asked whether he had any explanation for the shortages. He suggested that the machines may have miscounted the money and that he was not fully responsible for processing Boots’ money. During the meeting the claimant stated that he had not received one of the sheets which was referred to as enclosed with the letter of 2 June 2009, detailing the alleged discrepancies, to which his attention was now drawn. The claimant was given a copy of the two sheets, one which contained the three discrepancies from the Boucher Road Store and the other containing a list of discrepancies from 17 February to 18 March 2009. The claimant was given an opportunity to halt the meeting so that he could consider the documentation, however he confirmed that he was content to proceed. Mr Cullen explained to the claimant his attendances at the Bangor and Boucher Road Boots Stores and that Boots had identified other shortages and that the claimant’s name came up against nearly all of these shortages. The claimant suggested other people had handled the bags before they came to him, that possible explanations could have been a fault with the counting machine or a hole in the bag. Mr Cullen pointed out that on these occasions the amount in the bag was known by him before it arrived at the respondent’s premises and that the records showed that it was the claimant who had processed the bag. He rejected the suggestion that the machine was faulty because in this event the amount of cash actually lodged would have exceeded the amount stated on the lodgement. He stated that he had examined the bags and that there were no holes in them. After a short adjournment, Mr Cullen informed the claimant that he had decided to dismiss him and that he had the right to appeal the decision to Ms Lyndsey Tully, Operations Manager, Ireland. He also advised that the file would be given to the PSNI as the total shortages reported by Boots were in excess of £100,000.00. Mr Cullen accepted that the CCTV footage did not show the claimant taking any money. Mr Cullen wrote to the claimant on 9 June 2009 confirming his decision to dismiss the claimant stating that he “concluded that your conduct is considered gross misconduct and justified summary dismissal, this is in accordance with the disciplinary procedure”. The claimant was again advised of his right to appeal against the decision.
12. The claimant gave notice of his intention to appeal on 11 June 2009. His grounds were stated to be that his dismissal was a grossly disproportionate response to the allegation which had been raised against him, that the decision to dismiss him was unreasonable and no alternatives to dismissal were considered. He further contended that his dismissal was procedurally unfair on the basis that he was not advised of his right to be accompanied to the investigatory meeting or of the purpose of the meeting; he was suspended from his duties but did not receive written notification of his suspension, that the allegation in the letter of 2 June 2009 was unclear and did not enable him adequately to prepare for the disciplinary hearing or put forward his version of events; that he was not put on notice that the allegation if proven would amount to gross misconduct which could result in his dismissal; that he could not understand the reference to the sum of £53.00 when notes are dealt with in multiples of five pounds, ten pounds and twenty pounds; that he had not been provided with documentation or CCTV footage prior to the meeting; that he was advised that he was responsible for over £100,000.00 worth of shortages. His further grounds were that he had an unblemished employment record since November 2000 and that all six members of the cash processing team incurred shortages yet none of them had been dismissed or disciplined in this regard and finally that no investigation had been made of problems with the counting equipment and Boots cashing procedures.
13. On 25 June 2009 Ms Kelly wrote to the claimant advising him that his appeal would take the form of “a full rehearing” and would be conducted by Ms Lyndsey Tully Operations Manager Ireland and that the purpose of the hearing would be to investigate “allegations of theft and cash handling procedures”, relating to 21 shortages from 17 February 2009 until 23 May 2009, 18 of which were processed by the claimant. The letter went on to state that “these allegations constitute gross misconduct and possible outcomes of the meeting is reinstatement with no disciplinary action, reinstatement with some level of formal warning on file or a summary dismissal without notice or pay in lieu of notice”. The claimant was provided with a list of shortages from 17 February 2009 until 23 May 2009 and the minutes of the meeting held on 29 May 2009. The names of his colleagues on the list against whom shortages were also recorded during that period were tippexed out. The claimant was advised of his right to be accompanied by a colleague or Trade Union representative.
14. The appeal hearing took place on 2 July 2009 and Ms Tully confirmed that the appeal would take the form of a rehearing. She discussed in detail the claimant’s grounds for appeal and asked for his suggestions as to how the discrepancies could have occurred. She provided clarification to the claimant in relation a number of queries raised by the claimant. These included an explanation that the figure of £53.00 resulted from converting Euros to sterling. She confirmed that the CCTV footage was “inconclusive”. She clarified that the respondent did not allege that the claimant was accused of taking £100,000 but that this was the amount that Boots were claiming back from the respondent. After meeting with the claimant Ms Tully reviewed the documentation and spoke to Mr Cullen in relation to the investigation carried out at Boots. She wrote to the claimant on 14 July 2009 confirming that the decision to dismiss him was upheld. She addressed in detail the claimant’s grounds of appeal and further issues which were raised by him during the appeal hearing including that new and part time employees would ask him to use his scanner number. In fact her investigation showed that there had been no part time or temporary staff in cash processing since February 2009 and B’s employment with Brinks ended on 20 February 2009. Following her investigation she concluded that the records showed eighteen shortages totalling £1,974.00 which had been processed by the claimant between 17 February 2009 and 23 May 2009 and during the period the 4 until 8 May while he was on holiday there were no shortages. She informed the claimant that the initial invitation to the hearing which stated that the outcome would be up to and included a final written warning was an administrative error which was addressed by the appeal hearing. The claimant subsequently lodged a letter of grievance on 23 July 2009 complaining that his dismissal was unfair and in breach of his contract of employment and that he had been discriminated against on grounds of sex.
15.
He lodged his complaint of unfair
dismissal and unlawful sex discrimination with the Office of Industrial Tribunals
on 28 August 2009 and a response was lodged on
13 October 2009 by the Respondent denying unfair dismissal. The claimant was
interviewed by the PSNI in relation to alleged theft and was subsequently
notified by letter dated 12 April 2010 from the Public Prosecution Service that
having considered the evidence currently available it had been decided not to
prosecute him. The claimant has not worked since his dismissal and a letter
from his GP dated
1 February 2010 confirmed that the claimant presented at his GP on 8 June
following dismissal at work and that his GP has seen him every four weeks since
that date. He has been suffering from anxiety and depression, complaining of
poor sleep, low mood, anxiety, poor appetite, mood swings and loss of
concentration and that he has become withdrawn and has been put on medication
and has suffered weight loss of two stone.
The Law
16. An employee has the right not to be unfairly dismissed by his employer pursuant to Article 126 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order) as amended.
17. Article 130(1)
of the 1996 Order provides that it is for the employer to show -
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(1) A reason falls within this paragraph if it -
... (b) relates to the conduct of the employee,.....
Where an employer shows that the reason for the dismissal falls within Article 130(1) the tribunal must go on to consider whether the dismissal is fair or unfair. Article 130(4) of the 1996 Order provides that:
“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 employer's 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.”
18. Article 130A provides that -
(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 I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to 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 the dismissal of an employee shall not be regarded for the purposes of 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.
(3) For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.
Basic award
19. Article 154 (1A) Provides that where—
(a) an employee is regarded as unfairly dismissed by virtue of Article 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason),
(b) an award of compensation falls to be made under Article 146(4), and
(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or (4), is less than the amount of four weeks' pay,
the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks' pay.
Compensatory Award
20. 157. — (1) Subject to the provisions of this Article and Articles 158, 160 [and 161], the amount of the 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 in so far as that loss is attributable to action taken by the employer.
(4) In ascertaining the loss referred to in paragraph (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of Northern Ireland.
(5) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
The tribunal was referred to a number of authorities included in the following: Iceland Frozen Foods v Jones [1983] ICR 17; British Home Stores Ltd v Burchell [1978] IRLR 379 EAT; Post Office v Foley [2000] IRLR 827 CA; Dobbin v Citybus Ltd [2008] NICA 42; Rogan v South Eastern Health And Social Care Trust [2009] NICA 47 (13 October 2009); A v B EAT [2003] IRLR 405; Panama v London Borough of Hackney [2003] IRLR 273; Morrison v ATGWU [1989] NICA 361; Polkey v A E Dayton Services Ltd [1987] IRLR 503; HL and Andrews v Software 2000 Ltd [2007] IRLR 568.
Conclusions
21. Mr Sheridan conceded at the beginning of the hearing that the respondent had failed to comply with the statutory dismissal procedure and therefore the claimant’s dismissal was automatically unfair pursuant to Article 130 A(1) of the 1996 Order. The tribunal was satisfied in the present case that the breach was at Step 1 of the statutory procedure which required the respondent to write to the employee setting out the circumstances which lead it to contemplate dismissing the employee and inviting him to a meeting. On the facts the tribunal is satisfied that the respondent complied with Steps 2 and 3 of the procedure.
22. The tribunal therefore had to decide the proper award of compensation payable to the claimant. Both parties’ representatives referred the tribunal to the Software 2000 case as being the correct approach to be adopted by the tribunal in this case in assessing the compensatory award. However this decision sets out principles for how a tribunal should deal with the failure to apply a proper procedure pursuant to Article 130 A(2) and where an employer has complied with the statutory dismissal procedure. If an employer can show a more than 50% chance that the claimant would have been dismissed in any event, the dismissal is fair. If the employer shows a 50% or less chance that the dismissal would have occurred anyway, the dismissal will be unfair but the compensatory award will be subject to a Polkey deduction to reflect the chance of dismissal 0%-50%. These principles clearly cannot apply in the present case as there is no possibility under Article 130 A(1) for the dismissal to be rendered fair if the employer can show that the dismissal would have occurred if the statutory procedures had been followed. As the dismissal is automatically unfair, Polkey applies in full. The tribunal went on to assess whether the compensatory award should be reduced and if so, by what percentage, to represent the chance that the claimant would still have been dismissed had the statutory procedure been followed.
23. In the present case the tribunal concluded that had the respondent complied with the statutory procedure the claimant would still have been dismissed, and furthermore that the tribunal would have found in that event that the dismissal was fair.
24. The tribunal was satisfied that the respondent had established that the reason for the claimant’s dismissal was related to his conduct. The Northern Ireland Court of Appeal in the case of Rogan v South Eastern Health And Social Care Trust [2009] NICA 47 approved the remarks of Arnold J in British Home Stores v Burchell [1978] IRLR 379 that the employer must show in a misconduct case:
a. that he genuinely believed that the employee was guilty of the misconduct in question;
b. that he had reasonable grounds for that belief; and
c. in forming that belief he had carried out such investigation into the matter as was reasonable in all the circumstances.
25. An employer who discharges the onus of demonstrating those three matters must not be examined further. It is not relevant that the tribunal itself takes a different view of the circumstances and neither is it relevant for the tribunal to examine the quality of the material that the employer had before him. “The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal”. (Per Morgan LCJ paragraph 26 of the Rogan case.)
26. The tribunal was satisfied that both Mr Cullen and Ms Tully in this case genuinely believed that the claimant was guilty of theft and had failed to follow proper procedures and therefore amounted to gross misconduct. The tribunal considered that the respondent did have reasonable grounds upon which to sustain that belief; namely that two of the bags from the Boucher Road store which were processed by the claimant had significant shortages and in relation to other prior shortages reported by Boots, the claimant was recorded as having processed the bags; that no shortages occurred during the week that the claimant was on annual leave; that there were no holes in the bags; that other employees were no longer employed by the respondent at the time of the Bangor and Boucher Road stores investigations. Furthermore the tribunal was satisfied that the respondent had carried out as much investigation as was necessary at the time of the final decision by Ms Tully at the appeal stage. The tribunal has accepted that Ms Tully investigated and addressed all of the issues raised by the claimant during the appeal and that she reviewed and weighed all of the evidence both for and against the claimant. On that basis she concluded that the claimant was guilty of gross misconduct and that the appropriate sanction was summary dismissal. The tribunal is satisfied that this fell within the band of reasonable responses and therefore declines “to stray into the forbidden territory of making its own determination of the evidence.”
27. It was submitted on behalf of the claimant that the dismissal was procedurally unfair in a number of respects including the failure of the respondent to provide the claimant with CCTV footage. However the tribunal notes that both Mr Cullen and Ms Tully acknowedged to the claimant at both the disciplinary and the appeal hearings that this did not show him taking any money, but that they relied on other evidence. The tribunal did not accept that the claimant understood the nature of the charges against him because the letter inviting the claimant to the disciplinary hearing was unclear. Even at the investigatory stage, the claimant must have appreciated that there was a serious allegation that the allegation concerned dishonesty against him as he was suspended on full pay pending investigation and he was informed that the matter would be referred to the PSNI. The tribunal did not consider it relevant to this exercise that the PPS subsequently decided that there was insufficient evidence against the claimant to secure a criminal conviction.The tribunal accepted that the failure on the part of the respondent at the disciplinary stage to inform the claimant that gross misconduct was alleged against him, which if proven could lead to his dismissal, if considered in isolation could amount to procedural unfairness. However the charges against the claimant and the possible sanction of dismissal were set out with clarity in the letter inviting the claimant to the appeal. The tribunal considered that the overall disciplinary process was fair notwithstanding any earlier irregularities prior to the appeal stage.
28. Therefore the tribunal concludes in applying the Polkey principles that there was a 100% chance that the claimant would have been dismissed had the respondent implemented the statutory dismissal procedure and the compensatory award as detailed in the agreed Schedule of Loss appended hereto is reduced accordingly.
29. The tribunal must award at least four weeks (gross) pay for the basic award where there has been an automatically unfair dismissal pursuant to Article 154(1A) of the
1996 Order. The claimant had 7 full years’ continuous service prior to his dismissal and is therefore entitled to a basic award of £2280.13 calculated as follows in the agreed Schedule of Loss:
Age at Effective Date of Termination - 44 years
Gross weekly pay £268.25
Length of Service 7 years
Therefore:
3 years aged not below 41 x £268.25 x 1.5 age multiplier £1,207.13
4 years aged below 41 x £268.25 x 1 age multiplier £1,073.00
Total Award
£2,280.13
30. The recoupment provisions do not apply.
31. This is a relevant payment for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 26-30 April 2010, Belfast
Date Decision issued to the Parties: