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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCann v Antrim Borough Council [2013] NIIT 01303_11IT (26 April 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1303_11IT.html
Cite as: [2013] NIIT 1303_11IT, [2013] NIIT 01303_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1303/11
CLAIMANT: Malachy McCann
RESPONDENT: Antrim Borough Council
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and the claim is dismissed.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mrs S Butcher
Mr A Kerr
Appearances:
The claimant appeared in person.
The respondent was represented by Mr G Grainger, Barrister-at-Law, instructed by Worthingtons Solicitors.
ISSUES
1. The issue for the tribunal to consider was whether the claimant had been unfairly dismissed by the respondent in being dismissed from his employment as a fitness instructor at Antrim Forum on 7 March 2011.
FACTS
2. We had the benefit of hearing evidence from the claimant, from a number of officers of Antrim Borough Council and of considering documents in relation to the dismissal procedure. On the basis of the evidence received, we make the following findings of relevant fact. The claimant was employed as a fitness instructor by the respondent and worked for it from November 1999 until he was dismissed from his employment on 7 March 2011 for dishonestly completing a document (namely a timesheet) in order to obtain payment or wages under false pretences.
3. The sequence of events in relation to the case was as follows:-
The claimant had been off work for a period of time in the autumn of 2010 when his wife had been ill and had had surgery, which unfortunately had been unsuccessful. Following this and as a result of the fact that their childcare arrangements had broken down, the claimant had to care for his wife and family and had been off work with stress from 20 September 2010 until 3 November 2010. He resumed work on 4 November 2010 on a phased basis and had a rehabilitation interview with his Line Manager, Elizabeth Gorman and Elizabeth Wilson from the Human Resources Department on 1 December 2010. At that meeting there had been some discussion about the fact that the claimant’s wife would require further medical treatment and it was agreed that the current working arrangements would be reviewed after his wife saw her Consultant Gynaecologist.
4. When the claimant got home from work on 3 December (Friday evening) his wife had received a letter from the hospital asking her to attend a medical appointment on Monday, 6 December, at 2.40 pm. The claimant was due to work on the Monday, starting work at 8.00 am. He went to work and was not able to speak to his Supervisor first thing. He continued with his work and then telephoned the Duty Manager, Trevor Gorman, about 12.00 noon and asked him for permission to attend a medical appointment. He did not say the appointment was for his wife, rather than himself. Mr Gorman gave his permission without making any further enquiry about who the appointment was for and without asking to see the appointment letter. There was heavy snow on the afternoon of 6 December. The following day when the claimant was at work he had a conversation with some colleagues including Jackie Fulton, the Assistant Manager of Antrim Forum, about the heavy snow the day before. Mrs Fulton had commented on her difficult journey home to Whiteabbey and the claimant had commented that he had done the same journey to Whiteabbey with his wife.
5. The following Monday, 13 December, Elizabeth Gorman, who was the claimant’s Line Manager, came to Mrs Fulton with the claimant’s timesheet. She had been off shift on 6 December and asked if the claimant had approached Mrs Fulton regarding the medical appointment. Mrs Fulton recalled the conversation about the snow the previous week when the claimant had said that he had had the same journey as Mrs Fulton on Monday afternoon as he had taken his wife to hospital in Whiteabbey. Mrs Gorman was about to go off shift and so Mrs Fulton indicated that she would speak to the claimant. She then asked him to produce his letter for the appointment. The claimant said he did not have a letter and Mrs Fulton reminded him of the procedure that if someone had an appointment they had to provide proof in advance. The claimant then said that he would arrange to get a letter from the hospital. At no time during this conversation was there any discussion about the fact that the appointment was not for the claimant himself. The claimant’s timesheet was held back because of this issue. He said he recalled Toni Millward speaking to him about it, that he told her the appointment had been for his wife and he had to get the letter. He did not mention this subsequently at the meetings with Mrs Fulton on 13 January 2011 or 7 February. We find as a fact that there were at least three (perhaps four) conversations between the claimant and other staff about the hospital appointment and the letter in December 2010 or early January 2011 and on no occasion did the claimant clarify that the appointment was for his wife or that he thought he was entitled to paid time off to attend hospital with his wife after the rehabilitation interview on 1 December 2010. Mrs Fulton said she had reminded the claimant about the appointment letter on another occasion and then the Forum was closed over the Christmas holidays and she was on leave for a period.
6. On 13 January 2011, Elizabeth Gorman and Mrs Fulton had an informal meeting with the claimant to review his annual leave as they considered that he had overtaken his quota of leave for the year. At that meeting, Mrs Fulton again raised the question of the hospital letter for the December appointment and on this occasion the claimant produced a letter which was an appointment letter for his wife on 6 December 2010. At that point, Mrs Fulton asked the claimant why he was producing a letter for his wife. She asked did he not understand that the policy in relation to hospital appointments only applied to himself? The claimant’s reply was that he did not know. Mrs Fulton told the claimant that she would have to speak to someone in the Human Resources Department about this matter and it may result in an investigation.
7. We were referred to the claimant’s terms and conditions of employment which had been furnished to him and which he had signed to acknowledge receipt of them. The policy in relation to medical appointments is set out as follows:-
“5. Medical appointments
5.1 All employees are permitted one hour off work with pay to attend routine appointments with the doctor, dentist or optician. Such appointments should as far as possible be arranged for the start or end of the working day in order to minimise disruption to the services. In all cases time off to attend medical appointments must be authorised by Line Management. Such appointments are not recorded as annual leave or sickness absence.
5.2 In relation to hospital appointments, Council recognise that the duration and timing of appointments is generally outside of the control of employees and in view of this reasonable time off with pay will be agreed with the line manager. Any abuse of this system will be viewed as a disciplinary matter.
5.3 All appointments must be evidenced by an appointment card, letter or agreed alternative.”
We were also referred to the respondent’s disciplinary and dismissal procedure, which follows a standard format. It specifies that a finding of gross misconduct will lead to dismissal. The examples of gross misconduct include:-
“Dishonestly completing any documents or declaration in order to obtain payment or wages, sick pay, etc, under false pretences, eg, medical and Self Certification Certificates.”
8. Subsequently, an investigation was commenced and it was carried out by Mrs Fulton and Barbara Irwin of the Human Resources Department. The claimant was invited to an investigatory meeting on 7 February 2011, which he attended with his Trade Union Representative. A minute of this meeting was produced to us. The claimant handed in a letter which he had prepared, which referred to the fact that he was wrong in the way he filled out his timesheet. He went on to say:-
“I realise that now, but in my defence I have had a very stressful time with my wife being in hospital following a recent operation, and to add to the stress the operation wasn’t successful which put more pressure on myself and my wife worrying about having to go through the operation again with higher complications. I don’t usually have any family problems but with this case it was just hard to deal with, trying to keep strong for my wife and children. I also had to try and sort out childcare for our children getting to and from school as my wife couldn’t drive, also having to take my wife back to the hospital to try and find out where they went wrong. With my mind not fully on my job I ended up making a mistake which has never happened before. Hope you appreciate my honesty, many thanks, Malachy.”
At that meeting, the claimant was unclear as to what time he had contacted Trevor Gorman to ask for time off to attend the medical appointment or exactly when he had received the letter in relation to the medical appointment. When he was asked if he knew what the procedure was for requesting time off for a medical appointment, his answer was, “Yes, I know the normal procedure if it was for me”. When he was asked why he had not sought clarity for time off to attend the appointment before 6 December, his answer was “Never thought”. He was then asked if it was the first time he had requested paid time off to attend his wife’s medical appointment and his answer was, “Yes”. When he was asked why he had not requested annual leave to attend his wife’s appointment, his answer was, “I made a mistake”. He was then asked why he had recorded two hours off for a medical appointment on his timesheet when it was a medical appointment for his wife and his reply was, “I made a mistake”. He also clarified at that meeting that when he met Elizabeth Gorman and Elizabeth Wilson on 1 December, he knew an appointment was coming up, but he did not know when and he did not have the letter on 1 December at that meeting. The evidence given by Mrs Fulton was that she found the claimant’s answers short, “closed” and evasive. She clarified the position with Trevor Gorman who confirmed what the claimant had said. She also spoke to Elizabeth Wilson of the Human Resources Department in relation to the rehabilitation interview because she wanted to check that the claimant was back to work on full hours and that there was no difficulty regarding time off if he wanted it. Mrs Fulton and Mrs Irwin had a discussion about the matter and on the basis that they felt the claimant had not been “upfront” with them, they recommended the matter should move to disciplinary proceedings. They had no further involvement in relation to the matter.
9. Following this, the claimant received a letter dated 23 February 2011, inviting him to a disciplinary meeting on Tuesday, 1 March 2011. He was provided with details of the allegations against him and was provided with various documents. He was also reminded of his entitlement to be accompanied by a Trade Union Representative or a work colleague. The disciplinary hearing was conducted by Ivor McMullan, Assistant Director of Recreation with the respondent; and Elaine Magee, Assistant Director of Human Resources. We heard evidence in relation to this hearing from Ms Magee and we read through the notes of the disciplinary meeting. There were a number of issues covered in the discussion at the disciplinary meeting in particular and we do not intend to cover all of them. However, the claimant indicated that he told Trevor Gorman that he had a hospital appointment to attend and that Mr Gorman did not ask him for details nor did he ask for a copy of the appointment letter. The claimant indicated that Managers “don’t ask for letters or cards when they need to attend medical appointments” but the claimant was reluctant to provide individual names. The claimant also indicated at that meeting that he thought it was okay to take time off for his wife as she was not allowed to drive, although he confirmed that he did not think this meant he was allowed to take time off when he wanted to. Mr Donnelly, his Trade Union Representative, said that the claimant was not thinking logically at the time and the claimant confirmed that he did not wish to deceive anyone. Regarding the completion of the timesheet, the claimant confirmed he believed he was entitled to time off with pay for the appointment. He had understood that the Council would help him and this was what was “in his head”. He stated clearly that he would not put his job at risk for two hours’ pay, but he also confirmed that no one had ever told him that he was entitled to time off with pay for appointments for other family members. At that meeting he also indicated that he could not remember Jackie Fulton having asked him for the appointment letter but he did remember Toni Millward asking him for it. He said in his evidence to the tribunal that he had told her that the appointment was for his wife but this was not recorded in the minutes of the disciplinary hearing.
10. Following the disciplinary hearing, Ivor McMullan wrote to the claimant on 7 March 2011, sending him a copy of the disciplinary record report and indicating that his employment was being terminated summarily on grounds of gross misconduct with effect from 7 March 2011. The disciplinary record form set out the events that had occurred and set out the key findings as follows:-
(1) The panel deemed that the claimant was responsible for ensuring the Duty Manager was aware of the reason why he was requesting time off on 6 December. They did not accept that the Duty Manager should have confirmed the appointment was for the claimant as opposed to someone else. The panel therefore concluded that the claimant deliberately withheld this information in order to claim time off with pay.
(2) The panel considered the claimant’s belief that he was entitled to time off with pay in order to accompany his wife to a medical appointment and found no evidence which would have led him to this conclusion. The panel did not accept that any reasonable employee would conclude this.
(3) The panel determined that if the claimant genuinely believed he was entitled to the time off with pay he would have informed the Duty Manager of all the facts when he asked for time off, this would have ensured that the Duty Manager could have made an informed decision about granting the time off.
(4) The panel noted that the claimant had been employed by the Council since 2000 and therefore should be fully aware that time off with pay to attend medical appointments relates only to appointments for the employee concerned. The panel considered whether the claimant could have misunderstood the more recent flexibility being granted to him through rehabilitation following absence. However the panel concluded that the flexibility he had been advised of related to making arrangements to obtain approval for time off as opposed to detailing the pay arrangements. The decision of the panel was therefore that the claimant had completed his timesheet dishonestly in order to obtain payment. They considered whether there were any factors which would warrant a lesser penalty than dismissal. The last sentence of their decision reads:-
“The panel noted that Malachy has a clean disciplinary record and has over 10 years service with the Council, however due to the fundamental breach of trust and confidence arising from this incident the panel have reached a decision to dismiss summarily”.
(5) Following this, the claimant wrote a letter dated 10 March 2011 appealing the decision to dismiss and setting out the grounds on which he believed the decision to dismiss was unfair.
(6) An appeal was held on 22 March 2011 and was conducted by Geraldine Girvan, Director of Development (at the time) and John Balmer, Assistant Director of Finance. Following that appeal meeting, Ms Girvan wrote to the claimant to say that there were a number of issues raised during the hearing which required further investigation and that she would write to him again with the outcome as soon as possible. On 1 April 2011, Ms Girvan wrote to the claimant advising him that his appeal had been unsuccessful and the panel had decided to uphold the decision taken by the original panel. The appeal outcome form which was enclosed set out the discussion which had occurred at the appeal and the various points which had been discussed by the individuals concerned. The claimant’s Union Representative said that he felt the decision to dismiss was unreasonable and suggested that there had been a lack of support from management in relation to his wife’s illness. No mention was made at this stage by the claimant about the discussion at the Rehabilitation Interview or his belief he was entitled to paid time off to attend his wife’s medical appointments. The claimant also believed that he had been less favourably treated than other colleagues. He indicated that the Council did not follow its procedure in relation to seeking appointment letters or cards in relation to medical treatment and yet he was being dismissed because of his failure to provide the letter for his wife’s appointment. He also believed that a colleague named Eddie King had asked the Assistant Manager, Jackie Fulton for leave to attend his wife’s medical appointment and he understood that this had been recorded as a medical appointment for Eddie King. The appeal panel considered this matter and made further enquiries. On clarifying the position in relation to the appointment for Mr King, Mrs Fulton confirmed that Mr King had asked her for permission to come in slightly later than scheduled on a particular date so that he could go with his wife to the hospital to attend a scan of their baby before it was born. No letter was produced but it was agreed that he could have an hour’s unpaid leave. Through an error by the wages section Mr King was paid for this hour but it was subsequently rectified.
(7) The claimant also produced a letter from his General Practitioner to the appeal pointing out that it was necessary for the claimant to drive his wife to her hospital appointment as she was not allowed to drive and emphasising the stress suffered by the claimant following his wife’s recent health problems.
(8) The appeal panel considered all the information produced to it but agreed with the disciplinary panel that the claimant’s dismissal related to dishonesty in attempting to obtain payment to which he was not entitled. Accordingly, they upheld the decision of the original panel. Ms Girvan in her evidence to the tribunal was specifically asked what mitigating factors had been taken into account. She said that they had read the comments the claimant had made in relation to the minutes of the original disciplinary hearing and that they had read the letter from the General Practitioner and taken all of this into account. In cross-examination she indicated that the claimant could simply have asked for time off to accompany his wife to the hospital appointment but this had not been done. He also had subsequent opportunities to clarify the matter at the investigatory stage or even before that, when Jackie Fulton first asked him about the appointment letter. Ms Girvan indicated that the appeal panel had considered whether a lesser penalty might be appropriate but due to the fact that there was dishonesty involved, they believed that there was a breakdown of trust between employer and employee and that the decision of the disciplinary panel should be upheld.
THE RELEVANT LAW
11. The relevant law in relation to unfair dismissal is to be found at Article 130 of the Employment Rights (Northern Ireland) Order 1996 and reads as follows:-
“Article 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 it is either a reason following 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 -
(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employers to do;
(b) relates to the conduct of the employee;
(c) that the employee was redundant; or
(d) is that the employee could not continue to work in a position in which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision…”
12. In this case, the respondent conceded that the employee had been dismissed and it is therefore for the employer to show that the reason for the dismissal was a fair one, ie, that it related to the conduct of the employee. It is then for the tribunal to consider whether the employer acted reasonably in treating the conduct alleged as sufficient reason for dismissal.
13. The relevant case law was summarised in the judgment of the Northern Ireland Court of Appeal in Dobbin v City Bus Ltd [2008] NICA 42 and quoted with approval by the same Court in Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. They were referred to established case law in the cases of British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR which was further refined in the judgments of Lord Justice Mummery in Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden [2000] ICR 1283. The guidance set out in Iceland Frozen Foods is as follows:-
“(1) The starting point should always be the words of [Article 130] 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 employees’ conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) The function of the 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.”
14. In British Home Stores v Burchell the position was summarised by Mr Justice Arnold as follows:-
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of 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 is in fact more than one element. First of all, there 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 on 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 the circumstances of the case. … 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 more normally in the 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 seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion.”
15. While it is accepted that the civil standard was the appropriate standard of proof for a disciplinary panel, reference has also been made in more recent cases (including in cases before the House of Lords) of the need for more cogent evidence to overcome the unlikelihood of what is alleged if a serious allegation is made. In Rogan, the Court referred to the judgment of Lord Carswell in Re D [2008] UKHL 33 where he cited the judgment of Lord Justice Richards in R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA CIV 1605 where he said:-
“Although there is a single civil standard of proof on the balance of probabilities, it is flexible in its application. In particular, the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities”.
16. We have also taken into account the fact that, as the claimant emphasised, a disciplinary procedure should allow an opportunity for the claimant to improve his performance and the guidance given by the Labour Relations Agency in its Code of Practice on the Statutory Disciplinary and Dismissals Procedures.
17. We have considered carefully the case law and are aware that in many cases dismissals for a “first offence” (as in this case) may be considered too harsh a penalty. However, we note that the learned authors of Harvey indicate that dismissals for a first offence may be justified in three rather different circumstances:-
(1) Where the act of misconduct was so serious (gross misconduct) that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct;
(2) Where disciplinary rules have made it clear the particular conduct will lead to dismissal; and
(3) Where the employee has made it clear that he is not prepared to alter his attitude so that a warning would not lead to any improvement.
18. We also note that in instances of theft or dishonesty a single act of misconduct may justify summary dismissal even though the amounts concerned were small but there was deliberate dishonesty (see McCrory v Magee t/a Heatwell Heating Systems [1983] IRLR 414).
19. In this case, the claimant was clearly under considerable stress because of his personal circumstances when this incident occurred. At the hearing he indicated that he had understood (or perhaps misunderstood) following his Rehabilitation Interview that he would be supported by the respondent in facilitating him regarding time off for his wife’s hospital appointments. He agreed however that he had never been told that he would be given paid time off to attend appointments with her. He also stated that he had never had to attend any appointments with her previously. The claimant seemed to base his claim of unfair dismissal on a number of factors. First of all he stated that Jackie Fulton already knew on 7 December, when they discussed the heavy snow the day before, that he had driven his wife to her appointment at Whiteabbey Hospital. Mrs Fulton stated that the question of the claimant’s request for time off for a medical appointment only came to her attention the following week when Elizabeth Gorman asked her about the claimant’s timesheet. At that stage she recalled the conversation, but thought that she should give the claimant the benefit of the doubt as to whether he had a medical appointment for himself that day as well. While we believe Mrs Fulton thought it was unlikely that the claimant had an appointment for himself that day, this was not impossible and so it was reasonable on her part to ask for the appointment letter. We note that the claimant could have raised the fact that the appointment was for his wife on a number of occasions. First of all with Mr Gorman when he asked for the time off initially, subsequently with Mrs Fulton when she asked for the appointment letter and with Toni Millward when she also asked about the appointment letter, but he failed to do so on each occasion. At the tribunal, and at his appeal, he raised the issue of the accommodation he had been promised by Council officials at his Rehabilitation Interview. However he did not raise this at the informal stage of proceedings, nor did he raise it with Mrs Fulton when she eventually saw the appointment letter in January 2011 and pointed out to him that the appointment was for his wife and not for himself. The claimant had been working for the respondent for a long time and must have known that he could not expect to have paid time off to attend hospital appointments for a family member, but only for himself. He agreed that he was aware of the procedure in relation to appointments for himself. If as he asserted, he believed he had been given some sort of special consideration at the meeting on 1 December, then it is surprising he did not raise it when he was first asked for the appointment letter, or even when he requested time off for the hospital appointment on 6 December.
20. The issue which we have to consider is whether the decision to dismiss was reasonable in all the circumstances. The tribunal has reminded itself that we must not substitute our own view of the matter for that of the disciplinary panel at the time. The issue we have to consider is whether the panel carried out a proper investigation of the matter and whether the decision they took was based on a reasonable belief of the claimant’s dishonesty at the time. Given that the claimant produced an appointment letter for his wife’s hospital appointment in January and then agreed that the appointment was for her and not for himself, it appears to us that the claimant admitted that he had attempted to have paid time off for his wife’s hospital appointment. We note that the Council took the step of interviewing Trevor Gorman in relation to the matter and he frankly indicated that the claimant had asked him for the time off. He noted that the claimant had apologised for short notice but had not clarified that the appointment was for his wife. Mr Gorman did not ask for the hospital appointment letter nor was it offered by the claimant. The claimant tried to suggest that it should have been Mr Gorman’s responsibility to clarify who the hospital appointment was for. We think that this is disingenuous on the claimant’s part when he was not frank in telling Mr Gorman that the appointment was for his wife and not for himself.
21. The following week when Mrs Fulton asked the claimant for the appointment letter again, he was not upfront in telling her that the appointment was for his wife. At tribunal he indicated that Mrs Fulton must have known the appointment was for his wife because of their conversation about the snow the previous week. We accept Mrs Fulton’s evidence that she was trying to clarify the position and give the claimant the opportunity to produce any correspondence. Had the claimant discussed the matter frankly with Mrs Fulton at that stage and asked to amend his timesheet, it seems from the evidence we heard that the matter might have been resolved at that stage, without the need for any further investigation or disciplinary action. It is most unfortunate that the claimant did not do so. The claimant failed to produce the appropriate evidence of the appointment and when he eventually did so, he did not even at that stage seek to amend the timesheet or make any apology, he simply produced the letter to Mrs Fulton. It was only when the matter moved to a formal investigation, that it seems to have dawned on the claimant that this matter was in fact much more serious than he had anticipated.
22. We appreciate the claimant’s comment at his disciplinary meeting that he would not have thrown his job away for two hours’ pay. It may be that the claimant was under a misunderstanding in relation to the Council’s preparedness to pay him for time off, but he did not seek any clarification of that at any time. In our view, an employee of 10 years’ standing should have had sufficient knowledge of the way the respondent operated to seek advice on this point if necessary.
23. We fully appreciate that the claimant had come through a very difficult time in his life, his wife’s illness obviously caused anxiety for him as well as difficulties of a more practical nature. In all the circumstances of the case, given the claimant’s long service clear record and his domestic circumstances at the time, we would have found it entirely understandable if the disciplinary panel had chosen to apply a lesser sanction rather than dismissal. However, it is not our role to substitute our decision for that of the disciplinary panel. It is our finding that the disciplinary panel carried out a reasonable investigation and took all necessary steps to clarify the position. We acknowledge that the respondent carried out all reasonable steps in terms of conducting the dismissal investigation, disciplinary hearing and appeal hearing in a way which was both substantially and procedurally fair. The claimant was given every opportunity to make full representations on his own behalf and to be accompanied. On the basis of the evidence presented to us, we believe that they formed a reasonable belief that the claimant had been dishonest. The claimant at that stage unfortunately did little to help his position both at the informal and formal stages of the procedure. We remind ourselves that we have to consider whether or not the dismissal was fair in all the circumstances of the case and on the balance of probabilities, it is our finding that the dismissal was fair. We observe that it would have been entirely possible for the disciplinary panel to have come to a different conclusion, but we do not believe that the decision to dismiss on grounds of dishonesty was unreasonable in all the circumstances, even if we believe that it is at the extreme end of the spectrum of reasonable responses. For all these reasons the claim of unfair dismissal is dismissed.
Chairman:
Date and place of hearing: 10-12 April 2013, Belfast.
Date decision recorded in register and issued to parties: