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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fuoco v Risk Management Solutions (Glo... [2011] NIIT 01423_11IT (06 December 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/01423_11IT.html
Cite as: [2011] NIIT 1423_11IT, [2011] NIIT 01423_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1423/11
CLAIMANT: Stuart Kevin Fuoco
RESPONDENT: Risk Management Solutions (Global) LLP
DECISION
The unanimous decision of the Tribunal is that the claimant was not unfairly dismissed.
Chairman: Mrs A Wilson
Members: Mr F Murtagh
Ms J McNulty
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr Sheridan of Peninsula Business Services Ltd.
ISSUES
1. Was the claimant unfairly dismissed by the respondent contrary to the Employment Rights (Northern Ireland) Order 1996 and if so what compensation (if any) should be awarded to the claimant?
2. In considering the fairness of the dismissal does the Tribunal find that the claimant was aware of the “pavement policy” and if so was he aware that breach of the policy amounted to gross misconduct warranting summary dismissal?
THE HEARING
3. The hearing was listed and part heard on 18 October 2011 and completed on 4 November 2011. Following the hearing the panel reviewed the evidence, considered all documentation furnished to the Tribunal and referred to by the parties during the course of the hearing and considered the submissions of both parties before reaching a decision. Mr Hughes (Managing Director) and Mr Dodge (Operations Director) gave evidence for the respondent. The claimant gave evidence on his own behalf and Mr David McAlinden gave evidence for the claimant.
FINDINGS OF RELEVANT FACTS
4. The respondent organisation is based on Montgomery Road in Belfast and employs in or around 70 employees. It provides cash management services including secure cash collection and delivery to and from clients' sites. The claimant commenced employment with the respondent on 18 November 2009 as a driver, collecting and delivering money (to include cash and cheques) to and from business clients and continued in their employment until his summary dismissal on 28 March 2011.
5. The respondent operates a policy that a driver when collecting or delivering cash must never carry in excess of £20,000 cash across the pavement on one trip. This is known as "the pavement policy” and is required for reasons of security, employee safety and for insurance purposes. Any amount carried in excess of £20,000 on one trip poses a security risk and is not covered by insurance. This policy is standard within the industry and it is the case of the respondent that any breach of the policy is considered gross misconduct.
6. To ensure that the “pavement policy” is adhered to, cash is delivered and collected in bags on which a note of the amount contained in the bag is clearly marked. Any bags on which the amount contained is not marked must be treated as if containing £20,000.00.
7. The claimant attended training courses on joining the respondent organisation and it is the respondent's case that this training covered the "pavement policy". The claimant denies this to be the case but accepts that he was aware of the "pavement policy" from previous experience working in the industry. Indeed on an occasion in the past the claimant contacted the respondent for guidance when asked by a client to carry in excess of £20,000.00 on one trip.
8. It is the respondent's case that memos were placed in locker rooms and on notice boards within the organisation's head office reminding drivers of the "pavement policy" and warning that any breach of the policy would constitute gross misconduct. The claimant denies that such memos were in place. However Mr David McAlinden who is a straightforward and consistent witness recalls such memos being in place.
9. The Respondent organisation had controls in place to check that drivers were carrying out their duties in accordance with company policy. This included "unseen observations" which entailed drivers being secretly observed carrying out their duties. Drivers were aware that such observations were carried out as a matter of practice but were not aware when they were subject to observation. Paperwork was completed following unseen observations and drivers were informed after the event and any matters arising were addressed.
10. In addition to "unseen observations" the respondent employed "professional witnesses" who followed drivers for reasons of vigilance related to security. ”Professional witnesses" were not concerned with the manner in which duties were carried out. Their role was restricted to vigilance and drivers were aware when they were followed by a "professional witness".
11. On Monday morning, 21 March 2011, the claimant was carrying out a run which included a delivery to First Trust Bank on High Street in Belfast. He was followed by a “professional witness” to whom he had been introduced prior to the run. His run, in so far as it related to High Street at least, raised issues of security as there had been a robbery in the vicinity of High Street in the very recent past.
12. It is Mr Hughes' case that he happened to be in the vicinity of High Street as the claimant was making the delivery to First Trust Bank and that he observed the claimant completing the delivery in two trips across the pavement. This aroused his suspicions as he believed that a Monday morning run would have involved a considerable amount of money and consequently a considerable number of "pavement runs". Mr Hughes consequently contacted head office for the purposes of identifying the driver and checking the value of the run.
13. It is Mr Hughes case that he happened to be in the vicinity of High Street on other business on the morning of 21 March when he noticed an RMS van and decided to observe the service being provided. It is the claimant's case that Mr Hughes was checking up on him in circumstances where he (the claimant) had been "set up". The Tribunal has no compelling evidence on which to base a finding that the claimant was "set up" and no reason not to accept the evidence of Mr Hughes on this point.
14. On observing the claimant carry out his duties, Mr Hughes suspected that the “pavement policy” had been breached and he raised queries with Head Office as to the identity of the driver and the value of the cash delivery to First Trust Bank. When the claimant was identified as the driver and the value of the delivery was ascertained, it appeared that there had been a significant breach of the “pavement policy” on the part of the claimant. The claimant was at that point recalled from his run and required to attend an investigatory interview arranged for his return. The Tribunal are concerned that this interview was unnecessarily rushed, that the claimant was given no time to prepare and was not afforded an opportunity to be accompanied by his choice of colleague. The Tribunal accepts that there existed on the part of the respondent a reasonable suspicion that the “pavement policy” had been breached and the Tribunal recognises that any such breach would have potentially serious consequences for the respondent in terms of security, employee safety and insurance cover. Nevertheless the Tribunal find that once the claimant was recalled from his run, the likelihood of a further breach of policy had diminished and in view of the potentially serious consequences for the claimant it would have been good employment practice to afford the claimant some time to consider his position and arrange to be accompanied by his choice of work colleague. The Tribunal raises these concerns notwithstanding the respondent’s case (which the Tribunal accepts) that this interview formed part of the investigation process rather than part of any disciplinary procedures.
15. The investigatory interview was conducted by Mr Bell, Operations Supervisor and Mr McCoy, Logistics Manager and the claimant was accompanied by Mr Reynolds. The minutes of the meeting are disjointed and poorly drafted and give no indication that the claimant was made aware of the exact allegations made against him. However it is accepted that according to the minutes provided the claimant admitted during the course of the meeting that he was aware of the "pavement policy".
16. However the minutes also record that he (the claimant) denied knowledge of any memos relating to the policy which raises a question as to whether he was aware that breach of the "pavement policy" was regarded as gross misconduct. The Tribunal has not been referred by the respondent to any other reference within company documentation to the treatment of such a breach as gross misconduct. However it is Mr McAlinden’s evidence that memos in relation to the policy which have been produced to the Tribunal were placed within the respondent’s head office for the attention of employees. The Tribunal has considered the memos produced and are satisfied that they indicate that any breach of the policy is considered gross misconduct. This is consistent with the evidence of Mr Hughes and of Mr Dodge and consequently the Tribunal find on the balance of probabilities that the claimant was aware at all material times that breach of the “pavement policy” was considered gross misconduct.
17. The claimant was and remains concerned that he was not informed as to the identity of the person who observed him on the run in question. The Tribunal has considered these concerns and whereas there appears to be no reason why Mr Hughes was not identified as the informer, the Tribunal finds that nothing turns upon this.
18. At the conclusion of the interview the claimant was informed by Mr McCoy that he was to be suspended on full pay to "enable a full and thorough investigation of the alleged incident to take place". It is clear that this decision was taken by Mr McCoy alone as there was no consultation with Mr Bell prior to the claimant being informed of the decision and the minutes record that Mr McCoy in delivering the decision read from a pre-prepared note. For these reasons when considered alongside the urgency in which the meeting was arranged and the failure of the respondent to allow the claimant to be accompanied by a colleague of his choice, the Tribunal find on the balance of probabilities that a decision had been taken prior to the meeting to suspend the claimant to facilitate further investigation.
19. By letter dated 25 March 2011, the claimant was invited to a disciplinary hearing in the following terms:-
"You are required to attend a disciplinary hearing on Monday 28th March 2011 at 10.00 am at 34 Montgomery Road, Belfast, to discuss the following matters of concern.
Your alleged breach of procedure on Monday the 21st March 2011 by exceeding the maximum pavement limit whilst carrying out duty and therefore placing RMS customer's monies, yourself and other employees at risk.
These matters are regarded as potentially gross misconduct. If you are unable to provide a satisfactory explanation, your employment may be terminated without notice
I enclose for your information copies of all documents that will be used at the hearing, together with a copy of our disciplinary rules and procedures”.
The letter also informed the claimant of his right to be accompanied at the meeting by a fellow employee or trade union representative.
20. The claimant attended the disciplinary hearing on 28 March as arranged and was accompanied by Mr David McAlinden. The hearing was conducted by Mr Hughes and the charge as recited in the letter of 25 March was put to the claimant. During the hearing the claimant attributed the breach of procedure to "misjudgment of character, stressed on the run and the pressure of the runs put this down to a miscalculation".
21. The hearing concluded at 10.40 am and adjourned for deliberations until 3.30 pm at which point the claimant was advised by Mr Hughes of the decision to summarily dismiss him. This decision was confirmed in a letter to the claimant dated 30 March 2011 which justified the decision to dismiss in the following terms:-
"The company have agreed insurance limits with our insurer and it is paramount we need to comply with these limits. Had a robbery taken place our insurance would have been nil and void due to your actions and the company would have been fully liable" and "Should a robbery have occurred when you were exceeding the pavement limits this would have had serious health & safety implications for our other employees as criminals would believe RMS to have increased limits and therefore our employees would be viewed as a more lucrative target"
22. The claimant was informed in this letter of his right to appeal against his dismissal. He lodged an appeal and invited to an appeal hearing which was conducted by Mr Dodge on 10 May 2011. He was accompanied by Mr David McAlinden. His appeal was unsuccessful.
APPLICABLE LEGISLATION
23. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-
“130- (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or if more than one the principal reason) for the dismissal and
(b) that 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.
(2) a reason falls within this paragraph if it –
(b) relates to the conduct of the employee,
(4) where the employer has fulfilled the requirements of paragraph (1), 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.”
CASE LAW
24. This is a case of dismissal by reason of misconduct on the part of the claimant. The law regarding the proper approach for an Industrial Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-
“The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined principally in the judgments of Mummery LJ in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.”
25. In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-
“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-
(1) the starting point should always be the words of [equivalent GB legislation] themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, 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;
(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”
26. To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what in fact more than one element is. First of all, it must be established by the employer the fact of that belief, that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”
27. The disciplinary offence with which the claimant was charged was ‘breach of procedure on Monday the 21st March 2011 by exceeding the maximum pavement limit whilst carrying out duty and therefore placing RMS's customer's monies, yourself and other employees at risk".
28. On the basis of the evidence as adduced the Tribunal is satisfied that the respondent conducted a reasonable investigation notwithstanding what the Tribunal regard as flaws in the conduct of the initial investigatory interview. The Tribunal is satisfied that following adequate investigation the respondent was reasonably entitled to and did reach a genuine belief as to the guilt of the claimant in respect of the charge. Having found that to be the case and, given the potential consequence of the misconduct complained of, for the respondent in terms of insurance security and employee safety, the Tribunal find that the penalty of summary dismissal in all the circumstances of the case falls within the band of reasonable responses. As a consequence the Tribunal find that the dismissal was fair.
29. Notwithstanding the above finding the Tribunal considered Article 130A of the Employment Rights (Northern Ireland) Order 1996 which provides:-
Article 130A (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.
The Statutory dismissal and disciplinary procedures in so far as they relate to this case are set out in schedule 1 to the Employment (Northern Ireland Order) 2003 as follows:
Step 1: statement of grounds for action and invitation to meeting
1.— (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2: meeting
2.— (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless—
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3: appeal
3.— (1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting, the employer must inform the employee of his final decision.
30. The Tribunal has carefully considered the procedures followed in this case and are satisfied that there was no breach of the disciplinary or dismissal procedures so as to justify a finding of unfair dismissal under Article 130A of the 1996 Order. The Tribunal has some concerns about the initial investigatory interview. However notwithstanding these concerns the Tribunal is satisfied that this interview formed part of the investigatory procedures and did not prejudice the disciplinary or dismissal procedures which were carried out in compliance with the requirements in the Employment (NI) Order 2003.
31. This claim is dismissed.
Chairman:
Date and place of hearing: 18 October and 4 November 2011, Belfast.
Date decision recorded in register and issued to parties: