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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Watty v Michael McAdam, Movie House Ci... [2013] NIIT 00917_12IT (14 March 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/917_12IT.html
Cite as: [2013] NIIT 00917_12IT, [2013] NIIT 917_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 917/12
CLAIMANT: Ryan Watty
RESPONDENT: Michael McAdam, Movie House Cinemas Ltd
DECISION
The unanimous decision of the Tribunal is that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Ms Petra Sheils
Members: Ms M Mulligan
Mr J Patterson
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr Sean Doherty, Counsel, instructed by Tughans Solicitors.
THE CLAIM AND THE RESPONSE
1. The claimant lodged a claim on 21 May 2012 claiming that he had been unfairly dismissed for gross misconduct.
2. The respondent presented a response on 25 June 2012 in which they accepted that they had dismissed the claimant and stated that this was because he had been guilty of gross misconduct.
SOURCES OF EVIDENCE
Witnesses
3. The Tribunal heard from the claimant.
4. On behalf of the respondent the Tribunal heard from Mrs Madeline Duffy, Manager of Movie House Cinemas Ltd, Citygate, York Street; Mrs Nula Stewart, Manager of Movie House Cinemas Ltd, Dublin Road and Mr Hugh Brown, General Manager, Movie House Cinemas.
Documents
5. The Tribunal was furnished with a hearing bundle of considerable length.
FACTS
6. The Tribunal found the following relevant facts, either as agreed or proven on the balance of probabilities:
7. The claimant, whose date of birth is 18 May 1984, was employed by the respondent from December 2005 until his dismissal on 23 February 2012. He was employed as a part-time general staff member and worked 18 hours per week. This job was not his primary job.
8. The claimant’s duties included working in the box office or working in one of the cinema’s kiosks serving refreshments, cleaning up and keeping tidy the kiosks, replenishing stock and serving customers. The claimant had a completely clear employment record with the respondent.
9. Employees of Movie House Cinemas were permitted to share their staff passes with others on condition they followed the correct procedure for doing so. This procedure was that the cinema tickets could be issued using the staff pass but that the staff pass had to be subsequently signed off by a manager at the end of the evening on a hospitality sheet.
10. Other employee privileges were afforded to staff members including the fact that managers were entitled to use refreshment stock from the kiosks. Other employees could give out stock to customers but only with the expressed permission of a manager.
11. On his arrival into work on 9 February 2012, the claimant was assigned to work in the top kiosk. This was unusual as the claimant was normally located on the ground floor. The claimant began work at 6.00 pm and completed his shift without issue.
12. Meeting - 10 February 2012
However, at 11.45 pm on his next shift on 10 February 2012 the claimant was approached by Mrs Madeline Duffy. She invited the claimant to a meeting to give an account of events surrounding his actions in relation to one of his customers on the evening before.
13. Ms Duffy was accompanied by Mr Brendan Leaden, the respondent’s IT Manager who took the notes of this meeting.
14. At the meeting Ms Duffy put it to the claimant that the evening before he had misused his staff pass by issuing tickets on it without getting this subsequently signed off on the hospitality sheet. She also put it to him that he had been witnessed giving out extra refreshments, one ‘kid’s matinee combo’ drink and one portion of nachos, without payment.
15. Ms Duffy advised the claimant that on 9 February the respondent’s IT manager Mr Leaden had been tasked to fit and trial a CCTV camera in kiosks. This was due to the fact that the respondent had suspicions in relation to three other members of staff. This issue did not involve the claimant.
16. Ms Duffy advised the claimant that during this work Mr Leaden had witnessed the claimant’s actions at the previous evening. Mr Leaden noted having seen the claimant serve a man, accompanied by two children, and had witnessed the claimant giving out at least one kid’s matinee combo, two matinee drinks and a portion of nachos and sauce.
17. On subsequently checking that the CCTV recording function was in line with the stocktaking record of the tills Mr Leaden had noted that the claimant had rung in only one matinee combo. The relevant section of the CCTV footage was destroyed as it had only been used on a trial basis.
18. Mr Leaden went to the relevant cinema screen and had observed that the two boys had inserted a matinee drink each into their cup holders and that the portion of nachos was sitting on the arm of the seats between them.
19. Mr Leaden reported this to the claimant’s manager, Ms Linda Hall, who in turn had reported the matter to Ms Duffy.
20. Ms Duffy also put it to the claimant that he had used his staff pass for two tickets but had not completed the hospitality sheet.
21. The claimant stated that the customer in question had been his uncle, accompanied by his uncle’s son and the son’s friend. The claimant stated that he had frequently printed off tickets from kiosks and that this had not been an issue before. The claimant stated that on this occasion he had told his uncle to come straight to him to collect the tickets. The claimant also stated that as far as he could remember he had served his uncle two kid’s combos.
22. The claimant denied that he had misused his staff pass. He accepted that he had overlooked getting the hospitality sheet signed at the end of the night but stated that he had included his staff pass in the till for cash-up purposes - a process whereby the presence of the staff pass would indicate to anyone cashing up the till that they could account for any unpaid or permitted tickets.
23. Suspension
At the end of this meeting Ms Duffy suspended the claimant. She stated that this was in line with company policy and that it was due to serious nature of the allegations against him.
24. Ms Duffy confirmed the claimant’s suspension by letter dated 10 February 2012 and stated that the suspension was pending investigation into allegations of failure to properly follow cash handling procedures. She advised the claimant that the terms of his suspension included his not entering company property and not contacting any member of the company’s staff, customers, clients or agents without permission from Ms Duffy or from a more senior manager.
25. On the same date Ms Duffy sent the claimant a separate letter inviting him to an investigation meeting on 14 February 2012 to provide an explanation for a matter of concern, namely not following correct cash handling procedures. The letter advised that Ms Linda Hall would be attending the meeting as a note taker but as this meeting was not a disciplinary hearing the claimant did not have the right to be accompanied.
26. On 12 February 2012 the claimant rang Ms Linda Hall and asked her if he could speak to her. Ms Hall stated he could, depending on what he was going to ask her. The claimant then asked Ms Hall for advice stating that he had done nothing wrong and he loved working in the cinema.
27. Ms Hall asked the claimant to confirm that he was aware of the subject matter of the forthcoming meeting of 14 February 2012. The claimant confirmed that he was aware of this and went on to ask Ms Hall if there had been CCTV cameras in the kiosk. Ms Hall stated that she did not know. The claimant immediately apologised for asking for this question as he had stated he had not intended to compromise Ms Hall’s position.
28. Ms Hall explained that the forthcoming meeting was an investigation meeting and that any information or notes taken at it would be passed to another party to decide if the matter would go forward as a disciplinary matter. Ms Hall advised the claimant that if he felt he had nothing wrong or had a reasonable explanation for his actions, he could state this. The telephone conversation ended at this point.
29. Preparatory handwritten notes for the meeting on the 14 February 2012 record a list of questions for the claimant at the investigation meeting. This list made reference to the issue of the claimant’s breach of the terms of his suspension by contacting Ms Hall. However, this issue was not recorded in the subsequent notes of the investigation meeting and did not form the basis of the reason for the dismissal. However, Mr Gavin Mallon replaced Ms Hall at that meeting as note taker.
30. The Investigation Meeting
At the investigation meeting on 14 February 2012 Ms Duffy again asked the claimant to explain why he had issued two tickets on his staff pass to his uncle from the kiosk and why he had not subsequently had his staff pass signed off by a manager. Ms Duffy also presented the claimant with the till receipt that recorded the sale only of one kid’s matinee combo and queried why the claimant had dispensed refreshments to his uncle and not recorded the transaction in full on the till.
31. The claimant stated that on his arrival to work that evening he had become upset and agitated at the state of the kiosk. There had been a leak from one of the fridges and this had caused the kiosk to flood. He added that the kiosk itself was in an untidy and unready state for the evening’s business.
32. The claimant stated that his anxiety to get the kiosk into proper order had affected his recollection about what he had served his uncle. The claimant acknowledged that when first queried he recalled having sold his uncle two kids matinee combos but stated that over the weekend he could recall having sold his uncle only one.
33. The claimant denied as having given his uncle any further refreshments and none without payment.
34. The claimant objected to Ms Duffy’s reliance on the notes of the evening of 10 February 2012, taken at their first conversation, as these had been taken by Mr Leaden. The claimant objected to the fact that the notes of the meeting were being taken by the respondent’s witness and particularly when Mr Leaden had not even completed his written statement. The written statement was obtained only after the date of that conversation.
35. The claimant’s second objection to Mr Leaden’s evidence was that in the claimant’s view Mr Leaden was not the most reliable. This referred there being some bad blood previously between the claimant and Mr Leaden.
36. Ms Duffy explained that the respondent had decided to install CCTV cameras as they had become suspicious that other staff, not including the claimant had been pilfering from the tills. Ms Duffy stated that she had not approached the claimant sooner that evening, when there were other managers around who could have taken the notes as she had not wanted to alert the other staff to the presence of the CCTV cameras.
37. At the end of the evening Ms Duffy stated that she and only two managers were left, one of whom she tasked to count the money leaving only Mr Leaden to act as note taker. Ms Duffy stated that she had asked Mr Leaden to be note taker to avoid having to leave the matter a further 24 hours.
38. Ms Duffy made no enquiry as to why the claimant had said that there was bad blood between himself and Mr Leaden.
39. The Tribunal noted that Ms Duffy had had a considerable period of time that evening to call in another manager to act as note taker and also that she had the option of asking Mr Leaden to do the cashing up. The Tribunal concluded that the decision to ask Mr Leaden to act as note taker when he was the respondent’s witness, and particularly where his written statement was completed only after the meeting with the claimant, was very unsatisfactory and unfair.
40. However as this occurred at the preliminary meeting the Tribunal went on to consider whether this rendered the ultimate dismissal unfair.
41. The Investigation
Subsequent to this meeting Ms Duffy spoke to Ms Linda Hall in relation to the state of the kiosk. Ms Hall confirmed that there had been a problem with the cooler and that the claimant had spoken to her about this and about the state of the kiosk. Ms Duffy also spoke again to Mr Leaden who stated that the claimant did not appear to be working in a flap or rushing about in any state of distress.
42. Ms Duffy drafted a summary of her investigation and stated she believed there was a case to answer. This was on the basis of the evidence that the claimant had failed to follow procedures to get a signature for his use of the staff pass and that he had been seen on CCTV by Mr Leaden giving out kiosk product which did not relate to what was rung into the till. Ms Duffy also relied on Mr Leaden’s evidence that he had investigated the matter further by going to the cinema screen and seeing the children with the extra product.
43. Ms Duffy concluded that the claimant had offered no reasonable excuses to why he had not processed the sale correctly and noted the variance in the claimant’s evidence between her first conversation with him on 10 February 2012 and his subsequent recollection about giving out only one matinee combo. Ms Duffy drew the inference that the claimant was aware that his second recollection would better tally with the till record.
44. Ms Duffy went on to conclude that if an error had been made on the till entry that the claimant, with his six plus years of experience, ought to have known that the product given to the customer cost more than the £2.80 which had been rung into the till, that if he had asked his uncle for the correct amount of money an overage would have been in the till when the claimant cashed up, irrespective of the till record. On this basis Ms Duffy concluded that the claimant had knowingly given the extra items without seeking payment.
45. The Disciplinary Hearing
The claimant was invited to attend a disciplinary hearing on 17 February 2012. The hearing was conducted by Mrs Nula Stewart and Ms Tamara Featherstone. It was to consider the allegation of “not following procedures” on 9 February 2012 in the processing of the staff pass and of not following company procedures in the processing and handling of kiosk transactions. The letter of invitation to the disciplinary meeting enclosed a copy of Mr Leaden’s statement.
46. At this meeting the claimant was attended by a companion, Ms Juliann Cousins.
47. At the outset of the hearing the claimant raised an issue that a copy of Ms Duffy’s notes of the investigation meeting had been left open on a personal computer and had been read by a member of staff who alerted the claimant to this. The claimant alleged that some of the notes had been altered to read differently from the evidence he had given Ms Duffy particularly in relation to Mr Leaden.
48. The claimant also challenged why he had been approached as long as 24 hours after the episode had occurred. He was advised the other matter under surveillance would have been compromised if he had been approached sooner.
49. The claimant accepted that he had failed to have the use of his staff pass for tickets properly processed. The claimant confirmed that he had advised his uncle to come to the top kiosk where he printed off tickets for him but had not properly had this signed for at the end of the evening.
50. Mrs Stewart put it to the claimant that his insistence that he had given his uncle only one kid’s matinee combo was not consistent with Mr Leaden’s statement and further, having looked at the sales report, there was no note of a transaction for the extra matinee drink and portion of nachos as witnessed by Mr Leaden.
51. The claimant reiterated his objection to Mr Leaden’s evidence and stated that Mr Leaden was an unreliable source of information. This was on the basis that the claimant stated he had seen Mr Leaden on frequent occasions taking items from the kiosks. Mrs Stewart stated that Mr Leaden was acting within his managerial privileges and that the issue did not affect his reliability to report accurately what he had witnessed on CCTV and with his own eyes.
52. The claimant also disputed the stock printout and stated that it was also unreliable. He indicated that there were a total of 14 discrepancies of which he was being accused of only two. He stated that accordingly the stock report was unreliable.
53. Mrs Stewart asked the claimant directly if he had handed out an additional matinee drink and a portion of nachos without ringing them through. The claimant replied no, not intentionally, saying that he would not have given anything out in case it would jeopardise his job. The claimant maintained that he had been very upset at the state of the kiosk and that both Miss Hall and Mr Leaden would be able to confirm that it had been in such a state as to be such a distraction to him.
54. The claimant went on to challenge the manager’s ability to manage staff and went on to state that he believed that he was being suspended and being made an example of. The claimant also stated that the respondent dealt with staff members with no consistency, dismissing some as guilty of theft but not others.
55. Mrs Stewart concluded the meeting by advising the claimant that she needed further time before making a clear decision, to read over notes and make a proper assessment of all the evidence.
56. Further Investigation
Subsequent to this meeting Mrs Stewart telephoned the claimant on 18 February. She advised the claimant that she would be contacting Miss Hall and Mr Leaden to explore their view of the issue of the state of the kiosk on the claimant’s arrival for duty.
57. Mrs Stewart also advised the claimant that he was entitled to submit a grievance in respect of any alleged breach of confidentiality in relation to a staff member having seen the investigation notes. Mrs Stewart followed up this conversation by e mail.
58. Mrs Stewart queried with Miss Hall and Mr Leaden the concerns raised by claimant at the disciplinary hearing about the state of the kiosk. Miss Hall accepted that there had been a leak of water in the kiosk but did not remember that the claimant had rung her more than once about it. Mr Leaden noted that there had been a leak but noted that the claimant did not seem to be too concerned about it or about the cardboard that had been put down to soak the water up. Mr Leaden noted that the claimant had been chatting to customers and had been using his mobile phone. Mr Leaden stated that when the claimant’s uncle arrived the claimant appeared to engage in general chit chat.
59. At the reconvened that disciplinary hearing on the 23 February 2012 the claimant stated that Mr Leaden’s statement had not previously mentioned the cardboard and that in any event the cardboard had not been used on the night in question. The claimant also claimant stated that there were too many inconsistencies between Miss Hall’s statement and that of Mr Leaden’s.
60. At the end of the disciplinary hearing Mrs Stewart reached the conclusion that the claimant had failed properly to sign the hospitality sheet for the use of his staff pass and that she was not satisfied that the claimant’s explanation about state of the kiosk was a viable reason to refute the evidence of what Mr Leaden had seen. Mrs Stewart summarily dismissed the claimant.
61. Grievance
The claimant did lodge a grievance into this matter. This was not the subject of this Tribunal.
62. Appeal
The claimant appealed against the decision to dismiss him. The appeal was heard on 13 March 2012. It was conducted by Mr Hugh Brown. Ms Tamara Featherstone took notes. Mr Brown reviewed all the notes in the matter, including those of Mrs Stewart.
63. Mr Brown also re-interviewed Mr Leaden. He wanted to ascertain for himself what Mr Leaden had seen and also to see if he could perceive any animosity Mr Leaden might harbour against the claimant. Mr Brown noted that there had been an issue between Mr Leaden and the claimant but that this had occurred so far back in the past that it did not influence Mr Leaden in this matter.
64. At appeal the claimant raised the potential that the portion of nachos had been brought into the cinema by one of the parties. However Mr Brown considered this and concluded that as there was nowhere in the vicinity where these could have been bought that it was more likely that they had been bought on the cinema premises.
65. In the alternative claimant also suggested that the nachos could have been bought at another kiosk within the cinema. Mr Brown checked the transactional logs for the other kiosks and had found no nachos sale at even approximately the same time as the original events.
66. Mr Brown concluded that the investigation and disciplinary process had been dealt with properly and thoroughly and that decision to dismiss the claimant had been correct.
67. In evidence Mr Brown stated that he had also concluded that dismissal was the appropriate sanction on the basis that he could not be certain that this conduct had not occurred previously and that, given the claimant’s denials, he could not be sure that it would not happen again.
THE LAW
Unfair Dismissal
68. Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer. Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.
69. Article 130 states at paragraph (2) a reason falls within this paragraph if it –
(a) relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do,
(b) relates to the conduct of the employee,
(c) is that the employee was redundant or,
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.
70. Article 130(4) states where the employer has fulfilled the requirements at 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.
71. Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer.
72. The statutory test for what reasons may amount to dismissal is set out at Article 130 of the Order. These include capability of modifications, conduct, redundancy, a statutory-necessary dismissal or some other substantial reason.
73. It is for an employer to establish the reason for the dismissal and that this dismissal falls into one of those potentially fair categories. The decision as to whether the decision to dismiss is fair must be decided (by a Tribunal) with reference to:-
(a) whether in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably or unreasonably in keeping it as a sufficient reason for the dismissal; and
(b) this decision shall be determined in accordance with equity and the substantive merits of the case.
Case Law
74. The Tribunal took relevant case law into account and in particular:-
British Home Stores Ltd v Burchell [1978] IRLR 379.
Rogan v South Eastern Health and Social Care Trust [2009] NICA 57.
75. It is case law that gives the Tribunal guidance on the way in which it should carry out its determination. A Tribunal must examine whether the respondent had a reasonable belief in the reason for the dismissal and that that belief was sustained by the employers having carried out a reasonable investigation and that the ultimate sanction of dismissal is “within the band of reasonable responses” of what other reasonable employers would have done in the same circumstances.
76. If a Tribunal concludes that the employer had a reasonable belief in the guilt of the employee of the misconduct as charged, as informed by having carried out a reasonable investigation and that the employer’s response is within the band of reasonable responses, a Tribunal must not interfere beyond this. It is not the Tribunal’s role to substitute its own view for that of the employer.
77. In assessing this statutory test in light of the guidance in British Home Stores Ltd v Burchell as adopted in Rogan v South Eastern Health and Social Care Trust the Tribunal can only scrutinise the employers’ belief and the quality of the investigation conducted to see if these were “reasonable”. The Tribunal cannot conduct an investigation of its own nor can it criticise an employer for not conducting a more stringent investigation. This Tribunal considers that an employer’s investigation includes the whole of the disciplinary process up to the point of the appeal hearing and decision.
THE TRIBUNAL’S CONCLUSIONS
78. The Tribunal noted that the respondent in this case reached the decision that the claimant had been guilty of gross misconduct by given out stock from the kiosk without full payment and had improperly used his staff pass.
79. In reaching this decision the respondents took into account all they had found in the course of their investigation. This included the till records, the variation in the claimant’s recollection of events between his first meeting and the investigation meeting and the evidence of Miss Hall and Mr Leaden.
80. The Tribunal noted that when the claimant challenged the reliability of Mr Leaden’s evidence as both note taker and witness and as having a grudge against the claimant the respondents did not simply discount this but further tested Mr Leaden’s reliability for themselves.
81. The Tribunal concluded that the respondent had reached a reasonable conclusion that the claimant had been guilty of gross misconduct.
82. The Tribunal considered the question whether the sanction of dismissal in this case was reasonable. The question was whether the claimant should be dismissed in circumstances where he had been found to have given out stock belonging to the respondent.
83. The Tribunal concluded that the relative worth of this stock is immaterial. The proper question for the Tribunal is whether another or any reasonable employer would have dismissed the claimant in these circumstances.
84. The Tribunal noted that the respondents had taken account of the variance in the claimant’s account of the events, claiming initially that he thought he had given out two matinee combos and changing this to one at the second meeting, after further reflection and the differences in the claimant’s evidence at the appeal hearing. The Tribunal concluded that the respondents’ decision to dismiss reasonably took account of the claimant’s continued denials and the uncertainty this gave them that the matter would not re-occur.
85. The Tribunal concluded that another reasonable employer could have reached the same decision and that the respondent’s decision to dismiss the claimant was not outside the band of reasonable responses.
86. Accordingly the Tribunal concluded that the claimant’s claim for unfair dismissal must fail.
Chairman:
Date and place of hearing: 16, 17 and 30 October 2012, Belfast.
Date decision recorded in register and issued to parties: