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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McNally v Board of Governors of Armagh O... [2012] NIIT 01255_11IT (05 April 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01255_11IT.html
Cite as: [2012] NIIT 01255_11IT, [2012] NIIT 1255_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1255/11
CLAIMANT: Anna McNally
RESPONDENT: Board of Governors of Armagh Observatory and Planetarium
DECISION
It is the unanimous decision of the tribunal that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Mr J Norney
Mr A Huston
Appearances:
The claimant was represented by Mr Robin McClelland of NIPSA.
The respondent was represented by Mr Ian Carroll of Employers Engineering Federation.
SOURCES OF EVIDENCE
1. The claimant gave evidence on her own behalf. Dr Tom Mason, the Director of the Planetarium, and Professor Alan Hibbert, a member of the management company both gave evidence on behalf of the Planetarium. Additionally, the panel had before it a book of documents that was agreed between the parties except for the document entitled “Advice on Conducting Employment Investigations” which the panel did not read as Mr Carroll objected to its inclusion.
THE CLAIM AND THE DEFENCE
2. The claimant claimed that she was unfairly dismissed. The respondent denied that the claimant was unfairly dismissed, contending that she was fairly dismissed for misconduct.
THE RELEVANT LAW
Statute
3. The right not to be unfairly dismissed is contained in Article 126 of the Employment Rights (Northern Ireland) Order 1996.
4. The tribunal also referred to Article 127, Article 130 and Article 130A of the same order.
CASE LAW
5. The tribunal considered the following cases in reaching its decision:-
British Home Stores Ltd v Burchell [1978] IRLR 379.
Iceland Frozen Foods Ltd v Jones [1983] ICR 17.
Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.
THE FACTS FOUND
6. The claimant was employed by the respondent in the capacity of Administrative Officer at the time of her dismissal. In total, at the time of dismissal, the claimant had worked at the Planetarium for more than 23 years. She had no previous disciplinary record.
7. In addition to working a 37½ hour week, by virtue of her contract of employment (concerning the terms of which there was some dispute) the claimant was also required to undertake overtime. At the time of dismissal the claimant was working under a contract that was presented to her in or around May to June 1995. The claimant had not signed the contract and alleged that this meant she was not bound by it. However, the claimant worked in accordance with the terms of the contract and did undertake overtime. Although the claimant worked some evenings by way of overtime the particular provision regarding hours of work that gave rise to the facts of this case was the requirement to work alternative Saturdays in the Planetarium. The claimant claimed that she was required, and indeed always had been required, to commence her working day on Saturday morning at 9.00 am. However, the tribunal noted that on alternative Saturdays the claimant’s colleague, Mr Neil Cullen, commenced his working day on Saturday at 10.00 am. Dr Mason, the Director of the Planetarium, contended that he was unaware that the claimant started at 9.00 am.
8. For some time prior to the events in question, it was apparent that the claimant had a difficult working relationship with the Director, Dr Mason. There had been two complaints against her (by a member of the public and by a reporter) in the months leading up to the case, but in respect of these incidents the claimant was not disciplined by Dr Mason. In respect of the second complaint regarding access to people with disabilities, Dr Mason required the claimant simply to write a letter of apology. The claimant did so with extreme reluctance, as she did not consider that she had done anything wrong and felt that Dr Mason should have accepted her account of events and not that of the service user. Additionally, the claimant considered that Dr Mason was uninterested in her Department and in the work she did generally for the Planetarium. In the months leading up to the events of this case, this was the background against which matters took place and although not strictly directly relevant are recited to explain the claimant’s attitude to Dr Mason.
9. In or around 4 December 2010, Dr Mason discovered an anomaly between the “signing-in” book and the time of entry of the claimant into the building as recorded by the CCTV. Dr Mason actually discovered the anomaly on 6 December 2010. Dr Mason discussed this with the Chairman and the Vice Chairman of his management committee and it was agreed that further investigation would be required. As Dr Mason was departing for New Zealand on 9 December 2010, he indicated that he would pick up this issue upon his return.
10. Dr Mason returned to the Planetarium on 5 January 2011 and started to deal with this issue again. Dr Mason looked at the CCTV footage for the five Saturdays from and including 4 December 2010 that had been worked by the claimant. He found in respect of four out of five of the Saturdays that the claimant had recorded herself in the “signing-in” book as being in work from approximately 34 to 59 minutes earlier on each Saturday than the times she had in fact actually arrived at. Having compared the “signing-in” book times against the CCTV footage, Dr Mason then looked at the key fob system (a method by which the alarm system is disabled). This produced results that matched the CCTV footage. Once he had looked at these items, Dr Mason’s investigation moved on to surveying the forms whereby the claimant (and other members of staff) recorded their hours in the Planetarium with a view to submitting claims for both flexi time (during the week) and overtime (during the week and on Saturdays). Dr Mason found that the claimant’s claims for overtime in respect of these four Saturdays were made with reference to her false start time. Having conducted these investigations, Dr Mason contacted Mr Gavin Patrick, the Head of Governance at the Department of Culture, Arts and Leisure, which oversaw the Planetarium. His advice was that it was not necessary to report the matter to the Police Service of Northern Ireland (as provided for in the fraud plan of the Department), but to go ahead and hold the preliminary investigation meeting provided for by the fraud plan procedure.
11. Accordingly, on 15 February 2011, Dr Mason sent the claimant an e-mail requiring her to attend a meeting with him to discuss this matter. The purpose of the meeting was to discuss some apparent discrepancies involving her signing in times on a number of Saturdays. On the day of this projected meeting, the claimant was already required to attend a health and safety meeting and so she did not open and read her e-mails that day. She did not therefore attend the meeting with Dr Mason and Mr Young as required. Dr Mason contacted her by internal telephone and asked her to join him and Mr Young. The claimant was therefore unaware of the purpose of the meeting but Dr Mason gave her some time to look at the e-mail which was by any standards a short document.
12. During the investigation meeting, the claimant admitted the discrepancies but said that that they were “unintentional”. She was not able to explain what she meant by the term “unintentional” despite being given a number of opportunities to do so. The outcome of the investigation meeting was that Dr Mason considered that the claimant had a case to answer in respect of her signing discrepancies. The following events took place:-
a. A letter inviting the claimant to a disciplinary hearing was sent to her on 24 February 2011.
b. The disciplinary hearing was held on 3 March 2011.
c. The outcome of the hearing was dismissal and this was communicated by letter to the claimant on 7 March 2011.
d. The claimant appealed against the decision to terminate her employment in an undated letter.
e. An Appeal panel was convened and met with the claimant to hear her appeal on 30 March 2011.
f. This meeting was adjourned for further enquiries and a second hearing was convened on 15 April 2011.
g. The Appeal panel upheld the decision to dismiss the claimant for gross misconduct on 15 April 2011.
h. The outcome of the Appeal panel’s decision was communicated to the claimant by letter on 15 April 2011.
13. In the claimant’s undated letter of appeal she alleged that the reason why she had signed in at an earlier time than that at which she actually arrived was that because of the two complaints from the reporter and the member of the public prior to December 2010, Dr Mason had made it clear he would be keeping “a close eye” on her. As a result she considered that as she was arriving late to work on a Saturday he would have disciplined her over this. The claimant also contended that she ran an informal tally system in respect of the hours for which she claimed on a Saturday, but in respect of which she was not present in the Planetarium. For example, she worked her lunchtime on a Saturday. While her lunchtime was of 30 minutes duration and for overtime on a Saturday she was paid at double time she still considered that this was a perfectly valid way of offsetting this deficit. She also contended that she had been working her lunchtime on Saturdays for some months and felt that she had accumulated a bank of hours against which she could afford to sign in late. The claimant also made the point that she had sufficient flexi time accumulated to use for appointments and time required off so there was no need for her to defraud the Planetarium. As the flexi time system only related to the working week and not to Saturdays, the tribunal has discounted this in its consideration of the issues. What was clear was that the claimant did not consider that signing in at an earlier time than that at which she actually arrived, and on the basis of that claiming a monetary overtime payment, was not in any way fraudulent. What was also clear was the claimant was unable to back up her claim about offsetting the hours by any personal records kept.
14. The tribunal was satisfied from the evidence of Professor Hibbert who chaired the Appeal panel that the process he carried out with his panel was extremely fair (not to say exemplary) both in the procedures that he adopted and the extent to which he went to fairly consider the claimant’s position.
CONCLUSIONS
15. In considering a case involving misconduct what the tribunal is required to do is to consider the requirements of the guidelines laid down in the case of British Home Stores Ltd v Burchell. In this case, Arnold J said:-
“It is the employer who manages to discharge the onus of demonstrating those three factors, 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 tests, 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.”
Out of this, the tribunal is required to consider whether the respondent had a reasonable suspicion that amounted to a reasonable belief in the guilt of the claimant and that it was reached after such investigation as was reasonable in all the circumstances of the case. On behalf of the claimant, Mr McClelland contended that the investigation was flawed because it had not considered going back and looking at the previous instances of misconduct in detail as well as the four documented instances which commenced with Saturday, 4 December 2010. Mr McClelland said that the respondent should have taken into account evidence from the claimant’s co-workers as to whether or not she was usually in the building at 9.00 am on a Saturday. The tribunal does not understand how this enquiry could have been helpful to the respondent as it was the claimant’s case that she was usually the only person in at that time on a Saturday. She pointed out that Mr Rafferty, her line manager, almost always went into a different building than the building in which she worked. Nor do we think it helpful to indicate that a more detailed quantification of the monies to which the claimant had laid claim by way of her overtime claims would have been helpful. The claimant did not deny that she had misclaimed for the four Saturdays in question and the tribunal is satisfied that it was reasonable for the respondent to rest its case on these four Saturdays and not to investigate any further. Neither does the tribunal consider it helpful to import definitions of fraud from the criminal law. Mr McClelland indicated that for the offence to be one of fraud it was necessary for there to be an intention to defraud. While the claimant claimed that it was unintentional and (before the tribunal) that her real reason for signing in early was to avoid discipline by Dr Mason, the fact remains that she continued to base a claim for overtime (however small) on her wrongful signing in times. As Mr Justice Arnold made plain in the excerpt from the Burchell case the appropriate standard of proof is the civil standard and the test all the way through is reasonableness. Accordingly, we consider that it was reasonable for the respondent to consider that it had carried out enough investigation, especially when the four instances of misconduct were not disputed. We do not think that the Burchell guidance requires us to examine definitions from criminal law especially as it does not require employers to do so.
16. We also consider that dismissal was a sanction that lay within the range of reasonable responses test laid down in the case of Iceland Frozen Foods v Jones. The claimant’s misconduct in this case involved a breach of trust and confidence and the Planetarium, being funded from public funds, has to comply with stringent rules and regulations set by the Government. Dr Mason was the designated “Accounting Officer” and he had to follow the set procedure that was laid down for him by the Department of Culture, Arts and Leisure. Moreover, the claimant indicated that she had very serious difficulties with Dr Mason and this underlined the tribunal’s conclusion that the duty of mutual trust and confidence had entirely broken down between the respondent and the claimant in this case. The tribunal considers that dismissal was within the reasonable band of responses.
STATUTORY PROCEDURAL UNFAIRNESS
17. The tribunal concludes that the statutory procedure was properly completed and no issue arises for its consideration on that ground.
GENERAL PROCEDURAL UNFAIRNESS
18. The tribunal accepts that Dr Mason largely followed the procedure that was laid down for him by the Department of Culture, Arts and Leisure. Mr McClelland however contended that the procedure had been unfairly operated by Dr Mason because he did not tell the claimant of his suspicion that she was involved in fraud before he departed for New Zealand on 9 December 2010, and indeed it was a matter of approximately three weeks before the claimant was notified of the matter after his return. Dr Mason took the view that he was the one who was required to operate the policy. However, the tribunal has noted that in paragraph 11.4.2 of the Fraud Response Plan, there is provision for delegation of the investigation to “another senior member of staff or a member of the Board of Governors or Management Committee”. There was no evidence that this was even considered. Mr McClelland pointed out that the effect of this failure to delegate the investigation meant that the claimant added further instances of wrongful signing in to the one spotted by Dr Mason before his departure to New Zealand, and that this was unfair. However, the tribunal does consider that at paragraph 11.4.3 of the procedure there was a power to continue to monitor the claimant as being a person “suspected of involvement in fraud”, and so does not find the failure to immediately tell the claimant of his suspicions to be procedurally unfair.
19. However, the tribunal did have serious reservations about Dr Mason being both investigator under the Fraud Prevention Policy and, under Clause 18.3 of the Disciplinary Procedure, chairing the Disciplinary Authority. This is not accepted industrial practice, and the tribunal does not accept the respondent’s argument that the respondent organisation was too small to separate the investigation from the disciplinary by not having Dr Mason involved in both stages of the process.
20. As it is settled law however that a fair appeal can cure defects at a lower stage of the disciplinary procedure, we take the view that the appeal process as operated by Professor Hibbert amply fulfilled this requirement and effectually cured the procedural defect in paragraph 19 that caused concern to the tribunal. Professor Hibbert was concerned by the claimant’s length of service and did look for any way that the result could be overturned. Not only did he want to see that the disciplinary panel had acted correctly, had drawn the right conclusions from the facts and implemented the correct penalty, but he also required Dr Mason to come before the Appeal panel to answer questions on matters that had not been covered.
Additionally, he required Mr Eamon Rafferty, the claimant’s Line Manager, to also come and give evidence to the Appeal panel. We considered that Professor Hibbert had overseen a very fair appeal procedure and that he weighed up very fairly the fact of the claimant’s length of satisfactory service against the necessity to comply with the DCAL Anti-Fraud Policy. Therefore the claimant’s case is dismissed.
Chairman:
Date and place of hearing: 24-25 January 2012 and 20-21 February 2012, Belfast.
Date decision recorded in register and issued to parties: