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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Al-Qaryooti v The Trustees for the time bein... [2014] NIIT 00123_13IT (26 February 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/123_13IT.html
Cite as: [2014] NIIT 123_13IT, [2014] NIIT 00123_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 123/13IT
CLAIMANT: Muhammad Al-Qaryooti
RESPONDENT: The Trustees for the time being of The Belfast Islamic Centre
DECISION
The claim for unfair dismissal is dismissed.
Constitution of Tribunal:
Chairman: Mr H Travers
Members: Mr A Henry OBE
Mr J Magennis
Appearances:
The claimant was represented by Mr G Grainger, Barrister, instructed by Thompsons McClure, Solicitors.
The respondent was represented by Mr N Phillips, Barrister, instructed by Worthingtons, Solicitors.
REASONS
ISSUES
1. It is agreed that the claimant was dismissed from his employment as the Executive Director of the respondent.
Following a disciplinary procedure the claimant’s employment was terminated on 9 October 2012. The claimant unsuccessfully appealed the decision to dismiss him and he was informed of the outcome of that appeal on 6 January 2013.
The claimant invites the tribunal to find that his dismissal was unfair and to make an appropriate financial award consequent upon unfair dismissal. The claimant asserts that his dismissal was both substantively and procedurally unfair.
The respondent denies that the claimant was unfairly dismissed. It asserts that he was properly dismissed in consequence of alleged misconduct.
The tribunal must determine whether the claimant’s dismissal was unfair and if it was unfair, what financial award should be made to the claimant.
2. The outcome of the disciplinary procedure was that the claimant was found to have been guilty of gross misconduct by inserting on the respondent’s application for funding from the government a figure for his salary which had neither been authorised nor agreed by the respondent. He was also found to have been guilty of misconduct by reason of poor timekeeping and leaving work without authorisation.
3. The claimant challenges: the fairness of the investigation prior to the disciplinary hearing; the fairness of the disciplinary hearing; and the fairness of the appeal procedure following the decision to dismiss the claimant.
FACTS
Sources of evidence
4. The parties provided the tribunal with a 491 page trial bundle, a 51 page supplementary bundle, and a 125 page bundle of documents relating specifically to the claimant’s alleged loss. The tribunal was referred by the parties to various documents contained within these bundles.
Each party called witnesses at the hearing as set out below.
The respondent –
Dr Hakeem Yusuf, who conducted an investigation into the allegations made against the claimant.
Dr Mazhar Khan, a trustee of the respondent who was chair of the disciplinary panel into the allegations.
Dr Kassim, who chaired the appeal panel.
Dr Al-Wazzan, Executive Secretary and acting treasurer of the respondent.
The claimant –
Ms Ni Mhearain, the claimant’s union representative.
The claimant himself gave evidence.
5. The findings of fact set out herein are conclusions reached based on all the information which was available to the tribunal. This includes the documentary sources of evidence and oral evidence, together with the submissions made thereon by the parties’ legal representatives.
The respondent
6. The respondent’s description of itself at paragraph 6.2 of its response is unchallenged. It is a registered charity and the largest institution of the Muslim community in Northern Ireland. It acts as both a place of worship and a community centre. It provides a wide range of services including: children’s education; religious studies and cultural education; youth development work; social and recreational programmes for women; adult education; social welfare services to the Muslim community; and the provision of information on Islam for non-Muslims.
7. The respondent is based at premises in Belfast where it provides prayer and meeting facilities.
The claimant’s employment
8. In or around early 2006 the respondent advertised the post of Executive Director. It was a key position, being the most senior of two paid administrative employees of the respondent and the only one of those posts which was full-time. The cost of this post was to be met largely from a grant ultimately provided by the Office of the First and Deputy First Minister.
9. The claimant applied for the post of Executive Director and was interviewed in May 2006. Ultimately he was successful and commenced employment on 1 September 2006 at a starting salary of £20,000.
10. The claimant’s qualifications include a first degree in administration/management and an MBA. He signs off emails with the letters FCMI which indicate that he is a Fellow of the Chartered Management Institute.
11. The claimant’s outline job description includes the following:-
“…Responsible to: The Chairman Belfast Islamic Centre
Reporting to: The Executive Committee…
Purpose of Job: To take full responsibility for the operation of the Belfast Islamic Centre (BIC) including the development of new relationships with external organisations and creating greater understanding of Islamic culture.
Key Activities:-
· Taking overall responsibility for the development of the up to date strategic plans for the centre and getting these approved by the Executive Committee on an annual basis.
· Preparation of personal work plan to reflect the priorities within the strategic plan and agreeing this with the Chairman/Executive Committee on a monthly basis.
· Providing monthly reports to the Executive Committee in relation to the Director’s own work and the work of the Centre.
· Maintaining accurate financial and administrative records to ensure that the work of the Centre is appropriately documented and that there is full accountability by the Executive Committee for the use of resources.
· Line managing any staff employed by the Centre in an administrative or operational capacity ensuring that good practice is observed in terms of human resources management, discipline, grievance etc…
· …Produce an annual report for the Belfast Islamic Centre setting out the work it has done, including up to date and appropriate financial information and to provide a promotional document to assist the work of the Centre.
· Assist the Executive Committee in identifying funding requirements and accessing appropriate funding opportunities to support the work of the Centre and the development of a new Mosque [emphasis added]…
· Any other reasonable duties that the Executive Committee feels are appropriate and necessary.”
Salary increases
12. In due course the claimant became concerned that his salary of £20,000 did not adequately reflect the duties of his post. He discussed the matter with Mr Webb from the Racial Equality Unit of the Office of the First Minister and Deputy First Minister.
Mr Webb wrote to the claimant on 17 April 2008: “Further to your discussions regarding a review of your salary at Belfast Islamic Centre we would advise that in public sector terms your job description would roughly equate to the lower end of a Staff Officer scale. This scale currently begins at £22,621 for a working week of 37.5 hours…We would emphasise that we offer this information as advice only. It is between you and the Committee to reach an agreement. We would also be grateful if you and the Executive Committee could reach an agreement as soon as possible in order to allow us to include the new salary figure on the schedule accompanying the letter of offer.” [Emphasis added]
13. The Executive Committee on that occasion did agree a salary increase of 15% to £23,000 per year. It is significant that this is recorded at paragraph 4 of the minutes of the Executive Committee meeting on 13 May 2008 as follows: “Pay rise for the director of 15% to £23,000 per year, after a request from the director, approved by the committee.” [emphasis added]
14. The tribunal finds that it is clear from the letter of Mr Webb and the minute of the Executive Committee meeting on 13 May 2008, that the claimant understood that the proper procedure to be followed in respect of any pay increase was by way of a request made to, and approved by, the Executive Committee.
15. Such an approach was entirely consistent with the obligation in the claimant’s job description in respect of: “Maintaining accurate financial and administrative records to ensure that the work of the Centre is appropriately documented and that there is full accountability by the Executive Committee for the use of resources.”
16. Internal disagreements within the respondent which were unrelated to the claimant meant that committee elections due to take place in November 2008 were deferred. Ultimately the election took place on 7 February 2010. In the meantime the claimant received a further pay increase in April 2009 when it was agreed that his pay should increase from £23,000 to £26,000 per annum. On that occasion the pay increase was approved by one of the trustees, Mr Latif, who wrote to the respondent’s accountants on 21 April 2009 to confirm the claimant’s upgraded salary. Mr Latif’s letter was forwarded to the respondent’s accountants by the claimant under cover of a letter dated 27 April 2009.
17. No disciplinary proceedings have been raised in respect of the increase from £23,000 to £26,000. Dr Mazhar Khan, who was a trustee of the respondent at the time, made the position clear in a written communication to Dr Hakeem Yusuf dated 20 April 2012: “The increase of salary of the director to £26,000 at a time when Belfast Islamic Centre was in crisis and Executive Committee was non functional, has been approved by the Trustees and it was not in dispute.”
18. Although the Executive Committee was not functioning properly in April 2009, the fact that the claimant sought and obtained the explicit approval of a trustee for his salary increase is a further illustration that he understood the importance of committee/trustee approval for any proposed increase in his rate of pay.
Salary increase 2010
19. In January 2010 the issue of government funding for the respondent fell to be considered. The application form for the 2010/11 development funding from the Office of the first and Deputy First Minister was due to be submitted by 25 January 2010. The application form was in two parts.
20. Section A comprised 9 pages which included 10 questions concerning all aspects of the development proposal submitted.
21. The front page of Section A reminded applicants to read the guidance notes and model letter of offer before completing the form. It contained the heading:
“Minority Ethnic Development Fund
DEVELOPMENT FUNDING 2010/11 Application Form
Closing Date: 2.00pm 25 January 2010”
The front page also included the following words:
“SECTION A APPLICATIONS THAT EXCEED 9 PAGES WILL BE REJECTED.
Please answer each question in the box provided. No additional documentation will be considered. Please do not send any additional brochures or leaflets at this stage. If an application is deemed incomplete it will be rejected. Please answer ALL the questions on this form.”
22. Section A contained a declaration to be signed and dated by two individuals on behalf of the applicant organisation, at least one of those signing had to be an office bearer. The declaration stated that: “On behalf of the organisation, we confirm that the information on this form is correct and that, if this application is successful, we will comply with OFMDFM requirements.” The last page of Section A concluded with a requirement to nominate a referee who was independent of the organisation, and details were then set out as to the email address and postal address to which the application should be sent. After these address details the final words which appeared in bold on page 9 of section A were as follows: “APPLICATIONS WHICH ARRIVE AFTER 2.00PM ON 25 JANUARY 2010 WILL NOT BE CONSIDERED”.
23. The requirement at the end of Section A for a dual signatory declaration of accuracy on behalf of the applicant organisation, combined with the nomination of a referee and the address details for submission (including a requirement for six copies if submitted by post), might lend the impression to someone who had not read the application guidance that Section A is a complete application in its own right. In fact it was not.
24. Section B of the application form required details to be set out of the funding being sought together with a breakdown of the costs requested from OFMDFM for the period of funding in question. Curiously, unlike Section A of the application form, Section B did not require a signature from anyone in the applicant organisation, whether an office holder or otherwise.
25. Where part of the funding sought is in respect of staffing costs, details of proposed salaries must be given in Section B. The form stated that, “For salary claims we will normally pay 90% of the salary plus employer’s national insurance contributions”. It is clear that Section B was intended to specify precisely how any funding granted will be spent. In the circumstances the tribunal rejects the suggestion made by the claimant in evidence that any sum approved and paid by the OFMDFM in respect of a salary proposal would not necessarily have to be spent on salary.
26. This conclusion is further supported by a letter written to the respondent by Ken Fraser of the OFMDFM on 16 August 2011 which includes the comment: ‘I should make it clear in the first instance that the grant of funding from the Minority Ethnic Development Fund is made to the Executive Committee of the Belfast Islamic Centre for them to manage in such a way as to achieve the objectives to which they have committed in their application for funding’ [emphasis added].
27. In January 2010 an interim Executive Committee was in place pending the election of a new committee which was due to happen in February 2010. It is not in dispute that Section A of the application was seen and signed on 18 January 2010 by Mr Mahabur Rahman the then treasurer. The parties are in disagreement as to whether or not Mr Rahman was shown Section B of the application before it was sent. In the subsequent disciplinary investigation carried out by Dr Yusuf, Mr Rahman said that he had not seen Section B and that he had no idea how much had been applied for.
28. The significance of Section B of the application form is that it contained a funding proposal that indicated that as from 1 April 2010, the claimant’s salary would be £28,000, effectively a £2,000 pay increase for him. The total funding sought from the OFMDFM was £101,880.
29. At paragraphs 7.4.12 – 7.4.20 of the claim form, the claimant sets out his case that, ‘the Respondent was clearly aware of the fact that my salary had been listed on the funding application as £28,000 per annum and that I had their authority for this increase’ [emphasis added]. However at no point in these paragraphs does the claimant set out any facts to substantiate the case that the respondent had given authority for the inclusion of the salary increase in the funding application prior to its submission. Events in April 2010 were the earliest dates that he relied upon in support of his case that he had received authority for the salary increase.
30. The application for funding which was submitted in January 2010 was rejected by the OFMDFM which referred the application documentation to the Community Relations Council [‘CRC’]. A meeting took place in April 2010 with the Chief Executive of the CRC which was attended by the claimant and three members of the executive committee, Dr Mazhar Khan, Dr Mohey Ismail and Mrs Taghreed Galal. Dr Khan told the tribunal that at that meeting he and his fellow committee members had no idea about the figures submitted and they did not ask questions. In the Response to the claim it is said that they were unaware of what the claimant’s salary was and they assumed that it had been correctly stated to be £28,000 in the application for funding.
31. The CRC in fact approved funding of £40,000. This was much more limited funding than the £101,880 which had been requested on the application to the OFMDFM. The CRC recorded its view that while the respondent would like additional support, the £40,000 funding covered ‘realistic costs’ including £28,000 in respect of the claimant’s salary.
32. Paragraph 11 of the minutes of the executive committee meeting on 27 April 2010 records that, ‘Mohey [Ismail] reported that the Community Relations Council (CRC) has agreed to give BIC £40,000 for one year to help with salaries and running. BIC have to provide a business plan and all EC members have to attend some training. Raied [Al-Wazzan] will email the CRC document to all EC members.’
33. On 28 April 2010 the Secretary of the executive committee, Dr Al-Wazzan, emailed his fellow committee members attaching the CRC’s funding proposal and noted that the committee had to implement the proposal to get the £40,000 fund. The proposal included the following breakdown of the £40,000:-
‘Salaries: Director £28,000; Administrator £10,000.
Running Costs: Electricity, heat, phone etc £2,000’.
At the time Dr Al-Wazzan did not appreciate that £28,000 represented a pay increase for the claimant.
34. On 13 May 2010, the claimant wrote to the respondent’s accountant to inform him that the funding had been moved from the OFMDFM to the CRC. The claimant set out the details of the funding including the provision for his own salary to be £28,000.
35. No documentary evidence has been adduced to demonstrate that the issue of the proposed increase in the claimant’s salary was discussed with any trustee or member of the executive committee prior to the submission of the funding application containing the proposed increase. This is surprising given that it was the claimant who was behind the proposal for a salary increase and one of the key activities contained in his outline job description was: ‘Maintaining accurate financial and administrative records to ensure that the work of the Centre is appropriately documented and that there is full accountability by the Executive Committee for the use of resources’.
36. In evidence the claimant asserted that he did discuss the proposed salary increase informally with executive committee members. The tribunal has not heard from any of those committee members or from Mahabur Rahman who was the co-signatory to the funding application which was submitted to the OFMDFM.
37. In evidence the claimant repeatedly relied upon the fact that when the CRC funding proposal was made the executive committee accepted and implemented the funding offered without comment in respect of the salary increase. This fact of itself does not however determine whether or not the salary increase had been authorised in advance of the submission of the application. It also does not determine whether or not the committee in fact appreciated that the proposed salary did represent an increase.
38. When the claimant was questioned at the hearing about the issue of executive committee approval for his proposed pay increase prior to the submission of the application for funding in January 2010, the tribunal found the claimant to be vague and evasive about this aspect of the case. This contrasted with an assertiveness and fluidity of response which he exhibited in other parts of his evidence.
39. Dealing with funding applications was one of the claimant’s key activities under his contract of employment. The respondent’s trustees and executive committee are unpaid volunteers and they were entitled to rely upon the claimant to take the lead in the submission of such applications. This did not however absolve them from their duty in the interests of the Belfast Islamic Centre to exercise proper oversight of such an important part of the claimant’s work. It is unfortunate that there was not such proactive oversight of the detail of the funding application which was submitted in 2010 to the OFMDFM and then the CRC. If such proactive oversight had taken place, this dispute about whether or not the claimant’s proposed 2010 salary increase was properly authorised would have been avoided. On the evidence it has heard, the tribunal accepts that when the application for funding was placed before the CRC that the committee members concerned with it did not appreciate that the salary proposal represented an increase for the claimant. It is however an unhappy state of affairs that the committee members themselves did not appreciate that was the case until much later.
Proposed salary increase 2011/2012
40. A further application for funding from the OFMDFM was submitted in 2011 in respect of the 2011/2012 funding year. The application form was in the same two part format as had applied in 2010. As before, Section A had to be signed by two responsible individuals on behalf of the respondent. Section B, which set out the financial detail of the application, did not require signature.
41. On this occasion, as in 2010, the completed Section B again included what would have been a pay rise for the claimant in the event that the funding application had been successful. This time the funding proposal proposed that the claimant’s salary be set at £29,236. As in 2010 the extent to which the claimant obtained appropriate authority for this proposal is in dispute
42. Section A of the application was signed and dated 4 February 2011 by both the claimant and Dr Mohey Ismail who was described as the ‘Chair’ of the respondent.
43. On the basis of the evidence presented at the hearing the tribunal concludes that Section B, which included the proposed salary increase for the claimant, was not shown to Dr Ismail before the application was submitted and proper authority was not sought by the claimant for the inclusion of such a pay increase prior to submission of the application.
44. In all the circumstances, including his outline job description and his management/business qualifications, the tribunal finds that the claimant was well aware that not only should the proposed salary increase contained in the application have been drawn specifically to the attention of Dr Ismail, but that proper authority should have been sought for the proposed increase prior to including it in any draft funding application.
45. On 18 January the Secretary of the Executive Committee, Dr Al-Wazzan, emailed the claimant to remind him of the 7th February dead line for submission of the funding application. Dr Al-Wazzan also commented: ‘As we agreed yesterday at EC meeting that the chair must sign the application before you send it. Please also send copy to Irfan [Basha, then Treasurer] and my self’.
46. In his reply sent the same day, the claimant gave no indication that he would not comply with the Secretary’s request that he and the Treasurer should be provided with a copy of the funding application before it was submitted: ‘Much appreciated. I will be in contact with Dr Mohey. If you have any idea or point which support the application please do so a week before the deadline. NO problem. Many thanks, Muhammad’.
47. The Treasurer replied by email on 18 January: ‘I am sure you will include most of the points. It might be better way if you could sent us a first draft of the application as soon as possible then we can add to it if anything is missing’.
48. Despite this correspondence, the claimant did not send a copy of the application which he submitted by email to the OFMDFM on 4 February.
49. When Dr Al-Wazzan emailed the claimant on 21 February to find out why the claimant had not sent a copy of the application to either Dr Al-Wazzan or the Treasurer prior to its submission, the claimant was unjustifiably obstructive. In an email dated 23 February he replied: ‘I worked with Mohey [Ismail] on the form. I would like to ask you why do you want a copy of it? As we agreed on the meeting the chair will sign the forms’.
50. The claimant has an MBA and is a Fellow of the Chartered Management Institute. He also has experience in business. In the light of good business practice, common sense and his outline job description, it is difficult to understand why the claimant should have found it anything other than both obvious and appropriate that the Secretary and Treasurer should see a copy of the funding application. The key activities in his outline job description include:
‘Providing monthly reports to the Executive Committee in relation to the Director’s own work and the work of the Centre.
Maintaining accurate financial and administrative records to ensure that the work of the Centre is appropriately documented and that there is full accountability by the Executive Committee for the use of resources…
Assist the Executive Committee in identifying funding requirements and accessing appropriate funding opportunities to support the work of the Centre…’.
By his obstructive response to Dr Al-Wazzan’s entirely reasonable request, the claimant failed to perform certain key activities of his role. The claimant’s contract of employment did not give him a free hand to complete funding applications as he pleased without appropriate authority.
51. On 18 January Dr Al-Wazzan had asked the claimant to send him a copy of the funding application prior to its submission. At no point in the January correspondence on the issue did the claimant indicate to Dr Al-Wazzan that he objected in principle to sending a copy of the funding application to the respondent’s Treasurer and Secretary. Had the claimant been candid in January about his views and intention in respect of disclosure of the funding application prior to its submission to the OFMDFM, there would have been a proper opportunity for a discussion about the issue and for the Executive Committee to resolve the issue. By his lack of candour in January, the claimant guaranteed that that the application for funding would be submitted in the terms which he desired personally.
52. On 23 February 2011 Dr Al-Wazzan replied in the following terms to the claimant’s obstructive email, ‘According to the current constitution (the new constitution as well) the secretary must keep a record of all corresponding [sic] I must see every application before every review them then the chair then sign them [sic]. Please read the current constitution and follow it’.
The claimant responded by email the same day, ‘You can read all the articles in the constitution, do not pick and choose’.
53. Despite his assertion in his email on 23 February that, ‘I worked with Mohey [Ismail] on the form’, the claimant did not send Dr Ismail a copy of Section B of the application for funding until 16 March 2011, around six weeks after it had been submitted. It was Section B of the form which contained details of the claimant’s proposed salary increase to £29,236.
54. In a short email dated 16 March 2011 the claimant wrote to Dr Ismail, ‘Please find attached part B of Funding form as promised’. In evidence the claimant said that he could not remember whether he had sent Dr Ismail a copy of Section B of the application prior to it being submitted. This is not a matter about which the claimant should be uncertain. It was, or should have been clear to the claimant that it was not for him to suggest unilaterally that his salary should be increased without any consultation with his employer.
55. In his email to Dr Al-Wazzan dated 23 February 2011, the claimant stated as a fact that he, ‘worked with Mohey [Ismail] on the form’. Section B is a crucial part of that form. In evidence, the claimant suggested that some emails from around that time had been deleted. He gave no adequate explanation as to why or how this had happened. If indeed he had sent relevant emails to Dr Ismail or others but they had been deleted from his own email account, the claimant could have expressly identified them in the hope that they might be recovered from the recipient.
56. As is set out later in this decision, the issue of whether or not the proposed increase to £29,236 was properly authorised was raised in subsequent disciplinary proceedings. Dr Ismail sat on the panel at the disciplinary hearing. When asked why the proposal for the increase had not been shown to the Executive Committee and trustees, the argument raised in response by his union representative, Ms Ni Mhearain, was that the funding application was a speculative application to increase funding and not the salary of the director. It was described as a bargaining exercise. What is particularly striking about that hearing is that at no point, despite the claimant’s presence throughout, was it suggested that Dr Ismail prior to the submission of the application had either known of, or approved of, the proposed increase in the claimant’s salary.
57. If the claimant had indeed been transparent with Dr Ismail about the proposed salary increase prior to its inclusion in the submitted funding application, it is extraordinary that at no time during the disciplinary hearing when this issue was raised was that point made either directly to Dr Ismail, or to his fellow panel members in the presence of Dr Ismail.
58. In evidence the claimant implied that he did not say anything at the disciplinary hearing because, ‘Dr Mohey [Ismail] insulted me, he never mentioned my name and he was obnoxious’. The tribunal has had an opportunity to observe the claimant’s demeanour in giving evidence and under cross-examination. The tribunal is in no doubt that the claimant is not afraid to assert himself when he feels traduced. The claimant amply demonstrated his ability to assert his point of view in his email correspondence with Dr Al-Wazzan concerning disclosure of the funding application prior to its submission. The tribunal rejects as lacking in credibility, any express or implied suggestion that because of Dr Ismail’s attitude at the disciplinary hearing the claimant did not advance the case, whether directly or through his representative, that Dr Ismail knew of the proposed salary increase in advance of submission of the application. It might be thought that if indeed Dr Ismail was being obnoxious towards the claimant and insulting him, that would present considerable motivation for the claimant to be forthright at the disciplinary hearing in pointing out in the presence of Dr Ismail that Dr Ismail knew of the proposed salary increase all along.
59. In all the circumstances, the tribunal finds that, prior to submission of the application, the claimant withheld from the Executive Committee and its officers, the proposal contained in the funding application that the claimant’s salary should be increased. By not inviting the committee to agree to the proposed salary in advance, the claimant ensured that it would be included in the funding application. If the funding application was successful the claimant knew that the committee would be presented with a fait accompli and that any funding specifically approved for his salary would have to be paid to him as salary. He would obtain a pay increase without having to go through the inconvenient process of persuading his employer that such an increase was merited.
60. For the reasons set out later in this decision, ultimately no disciplinary finding was made in respect of the increase to £29,236. The claimant’s evidence and conduct in respect of this matter does however bear upon his credibility.
Progress of 2011/2012 application for funding
61. The 2011 application submitted by the claimant did not in any event progress smoothly. The total funding sought in Section B of the form was £55,000. This was £10,000 in excess of the £45,000 cap which was imposed by the OFMDFM in respect of each applicant organisation. On 16 June 2011 Ken Fraser, who was the Race Policy Lead at the OFMDFM, emailed the claimant to point this out and to request urgently the submission of further specified documentation which applicants were required to submit. Mr Fraser informed the claimant that, despite the £45,000 annual funding limit, the OFMDFM was not authorised at that time to commit funds beyond 30 September 2011. Consequently Mr Fraser asked the claimant to submit, ‘a revised schedule indicating how £22,500 in development funds will be spent during the six month period beginning on 01 April 2011’.
62. The Secretary, Dr Al-Wazzan, had been copied in to Mr Fraser’s email via the general enquiry email address of the Belfast Islamic Centre. He immediately emailed the claimant highlighting Mr Fraser’s rapidly approaching deadline. It was then Thursday and the deadline was the following Monday. Dr Al-Wazzan requested that the claimant provide him with the required documents by Friday so that Dr Al-Wazzan could work on the application over the weekend.
63. By letter dated 19 June 2011 Dr Al-Wazzan sent Mr Fraser an amended funding proposal. The proposal reflected the outcome of an executive committee meeting on 7 June 2011 which had agreed a re-organisation plan for the management of the Belfast Islamic Centre. This would have involved splitting the duties of the director between two new posts, that of office manager and that of strategic planner. The office manager post would have been paid at a lower rate than the claimant’s existing salary. In the event this restructuring was not put into place and by email dated 7 September 2011 Dr Al-Wazzan submitted to the OFMDFM a revised schedule of funding for the period April to September 2011. This included provision for payment of the claimant pro rata at his existing rate of £28,000 per annum.
OFMDFM concerns about rate of claimant’s salary increase
64. Mr Fraser of the OFMDFM on 19 August 2011 wrote to Dr Ismail in his capacity as Chair of the Belfast Islamic Centre. The letter addressed a number of issues which had arisen. Mr Fraser raised a query about the rate of increase in the claimant’s salary since he commenced employment with the respondent. He wrote: ‘Also, I am puzzled as to why the application form for this year’s fund should have the Director’s pay as some £29,000 when the ‘Statement’ suggests that the salary should be £20,000. Clearly, we need to guard against inflating wages in the sector and have to make sure that these are in line with NJC pay scales. Can the executive committee explain how the Director’s salary has increased by almost 50% in the last 6 years?’.
65.
By the time this letter was sent,
Dr Al-Wazzan was not only Secretary of the executive committee but, following
the departure of the previous treasurer,
Dr Al-Wazzan was now also acting Treasurer. Mr Fraser’s letter was the
catalyst for Dr Al-Wazzan to look into the history of the claimant’s salary
increases. Paragraphs 49 and 50 of the Response to the Claim set out his
actions following receipt of Mr Fraser’s letter. Dr Al-Wazzan, ‘…tried to
gather the information on the Director’s salary history. Dr Al-Wazzan
contacted the BIC accountant, CRC, OFMDFM and some members on the ex-Executive
committee in order to investigate the issue. On 6 Sep 2011, Dr Al-Wazzan
provided an email report to all BIC Executive Committee and trustees setting
out the information he had obtained in relation to how the Claimant’s salary
had increased by almost 50% over the past 5 years. He noted that in
accordance with the pay rises set by the NJC scale, his salary should have been
£21,806.25 as opposed to £29,236’.
The claimant’s line manager
66. The claimant’s outline job description included the following details:
‘Employer: Belfast Islamic Centre (BIC)
Responsible to: The Chairman Belfast Islamic Centre
Reporting to: The Executive Committee’.
Under ‘key activities’ the job description included:
‘…Preparation of personal work plan to reflect the priorities within the strategic plan and agreeing this with the Chairman/Executive Committee on a monthly basis…
Line managing any staff employed by the Centre in an administrative or operational capacity ensuring that good practice is observed in terms of human resources management, discipline, grievance etc…’.
67. The minutes of an executive committee meeting on 5 October 2010 record that at that meeting Dr Ismail nominated Dr Al Wazzan to be the line manager of both the claimant and a secretary, Hassan Mansour, who was employed by the respondent to assist with the administration of the BIC. The Executive Committee unanimously agreed with this proposal.
68. On 6 October 2010 Dr Al-Wazzan emailed the claimant and Mr Mansour to inform them that the Executive Committee had nominated him to be the line manager for each of them. Included in his email was the statement, ‘From today you shall report all your activity to me’.
Google calendar and signing in book
69. By email dated 1 December 2010, Dr Al-Wazzan notified the claimant, Mr Mansour and the members of the Executive Committee that he had created a password protected online calendar using google. He told them, ‘To improve our communication regarding BIC meetings, schedules, event and activity, also to make a transparent system where all executive committee members and staff knows what is going on, I have created an online calendar which enable every one to log in from anywhere and view all BIC activity/meeting/event. All of you are also able to schedule a meeting or book an event’.
70. The claimant responded to Dr Al-Wazzan on 1 December and said that, ‘We will start using it for our events and activities from today’.
71. By 28 February 2011 Dr Al-Wazzan was unhappy with the way in which the google calendar was being used. Dr Al-Wazzan was dissatisfied with the level of information included in the calendar. He emailed the claimant and Mr Mansour complaining, ‘I still don’t know how you spend your time, which meeting you attend on behalf of the BIC and what is the outcome of the meetings’.
72. In his email Dr Al-Wazzan went on to explain that, ‘After consultation with NICVA last Friday, I therefore introduce the following new procedure of time reporting:
The new procedure will include the following:
1) All paid employee must sign in and out of the BIC (employee including: Director, Secretary, School coordinator, teachers and casual workers). I will bring a sign book to the BIC this week.
2) No employee allowed to attend any meeting outside the BIC until they get prior permission from their line manager. If the line manager outside the country, then he/she will nominate other member of the executive to report to.
3) Permission to attend a meeting outside BIC can be obtained by email or text message and on emergency cases by telephone.’
73.
As events transpired, the new
signing-in book did not resolve the issues as
Dr Al-Wazzan had hoped. The issue of recording attendance was to remain
an issue of contention between Dr Al-Wazzan and the claimant.
74. On 2 June 2011 Dr Al-Wazzan emailed the claimant to inform him that he had noticed that no-one had signed the book since 24 May. Dr Al-Wazzan asked the claimant to meet with him the following day, ‘to explain to me why you fail to sign the book’. The claimant’s reply sent on 3 June 2011 was short and direct: ‘If you have any problem contact the Chair. Please do not contact me regarding any issues relating to my work if you have any issue contact the Chair’.
75. The relationship between Dr Al-Wazzan and the claimant continued to deteriorate. On 7 June 2011, Dr Al-Wazzan complained at an executive committee meeting that the claimant did not recognise him as his line manager. At that meeting the Executive Committee confirmed that Dr Al-Wazzan was the claimant’s line manager.
Grievance
76. By email dated 19 June 2011 the claimant raised a grievance with Dr Ismail concerning, inter alia, Dr Al-Wazzan’s behaviour and attitude towards the claimant. In particular he focussed on an incident which had taken place on 17 June 2011 when the claimant had refused to hand over to Dr Al-Wazzan certain documents relating to the funding application and Dr Al-Wazzan had then unsuccessfully attempted to pull the documents from the claimant’s hands. This email was supplemented by a further grievance letter dated 30 June 2011 which was sent to Dr Ismail by the claimant’s union representative. By an email dated 27 June 2011 the claimant was informed by Dr Ismail that pending resolution of the grievance Dr Al-Wazzan would stand down as the claimant’s line manager.
77. What was described as a grievance hearing took place on 23 August 2011 and the claimant was informed of the outcome of that by letter dated 13 October 2011. The claimant appealed against the outcome of the grievance procedure and he was informed of the outcome of that appeal by letter dated 19 April 2012.
78. The grievance appeal panel found that the claimant had never fully recognised Dr Al-Wazzan as his line manager and the panel felt that the incident on 17 June 2011 was the culmination of some months of friction between the claimant and Dr Al-Wazzan arising from what it described as a ‘frustrated line management relationship’. The panel concluded that, despite the uncomfortable line management relationship, the incident on 17 June could have been avoided had Dr Al-Wazzan followed procedures. The panel recommended that Dr Al-Wazzan should not undertake further line management responsibilities without undertaking line management training. In respect of the other aspects of the grievance, the panel recommended that: a mediation process should be put in place in an effort to rebuild trust and productive working relationships between the claimant and the Executive Committee; a proper management structure should be put in place to clarify the role of the Executive Committee; all the staff should be appraised annually by their line managers; and that there should be a process of mentorship for the claimant.
Misconduct investigation
79. On 4 November 2011, the respondent instructed Dr Hakeem Yusuf to conduct an investigation into seven specific allegations of alleged misconduct. At that time Dr Yusuf was a law lecturer at Queens University. Dr Yusuf is not an employment lawyer. His academic specialism is in the field of human rights. He has in the past practised as a prosecutor in Nigeria. Prior to being asked to conduct the investigation his involvement with the Belfast Islamic Centre was confined to going to the Centre to pray, and occasionally leading prayers on Friday. After Friday prayers he would meet and socialise with the other attendees.
80. Dr Yusuf commenced his investigation on 28 January 2012 and the report setting out the outcome of his investigation is dated 16 April 2012.
81. The respondent’s disciplinary policy and procedure dated March 2011 states that: ‘The objective of the investigation will be to: establish the nature of the allegations and the evidence to substantiate them and give the employee the opportunity to state his/her case. The investigator will report to the Executive Committee or Appointed members of the Executive Committee on the evidence; the Executive Committee or appointed members will decide if there are ground for holding a disciplinary interview. Investigations will be conducted objectively. As part of the investigation, the employee may be asked to attend an investigatory interview. Where appropriate witnesses may also be interviewed and signed statements produced’.
82. The seven allegations investigated by Dr Yusuf were as follows:-
1) ‘He does not recognise the line manager, who has been appointed by the Executive Committee.
2) Poor time keeping.
3) Breaches of policies and procedures set by the Executive Committee.
4) He instructed the accountant on 15th December 2008 to pay him £600 of overtime without authorisation from the Trustees.
5) He has increased his salary from £26,000 to £28,000 without Executive Committee authorisation on May 2010.
6) He has increased his salary again from £28,000 to £29,236 without Executive Committee authorisation; he also refused to send copy of the fund application to executive Secretary and the Treasurer.
7) He refused to be accountable to his own work and report his work to the line manager’.
83. At the conclusion of his investigations Dr Yusuf reported that, ‘The evidence clearly establishes that all the allegations except number four are clearly established against [the claimant]’.
84. Dr Yusuf’s investigation was thorough. In addition to conducting interviews with the claimant and Dr Al-Wazzan, he also spoke to seven other witnesses. The notes of his eight separate investigation sessions with the various individuals (some sessions split between one or more people) total 51 typewritten pages. His report itself totals 44 pages of typescript.
85. The title of the report is, ‘No Sides but the Side of Truth’. The claimant asserts that the title is a misnomer. He says that Dr Yusuf failed in his duty to carry out an objective investigation in accordance with fairness and the respondent’s own disciplinary policy.
86. When he met Dr Yusuf, the claimant was accompanied by his union representative, Ms Ni Mhearain. At the outset of the interview there was a discussion between Dr Yusuf and Ms Ni Mhearain as to her role in the meeting. Ms Ni Mhearain told the tribunal that, ‘Dr Hakeem [Yusuf] seemed to believe that my role was to be silent and that I should be seen and not heard. I reminded him that I was a full-time trade union official. Eventually he agreed that I had a right to consult. Dr Hakeem [Yusuf] was very aggressive challenging and confrontational’.
87. At the outset of the interview with the claimant Dr Yusuf did set out his understanding at that time that Ms Ni Mhearain was entitled to be present at the interview but not to intervene. He expressed his view firmly on this issue. As Ms Ni Mhearain indicated in her evidence however, she stood her ground and ultimately she did intervene and consult with the claimant as she saw fit. Ms Ni Mhearain’s steadfastness ensured that no unfairness ensued by reason of Dr Yusuf’s initial attempt to limit her role to that of observer.
88. The claimant told the tribunal that he found Dr Yusuf ‘controlling…even if I have an idea he directs me to what he wants to…He was just making up a case to accuse me, to find me guilty whether I like it or not…Dr Hakeem [Yusuf] was not a fair investigation, it just saying I am getting rid of you’.
89. The tribunal has had an opportunity of considering Dr Yusuf’s investigation report and the minutes of the various meetings on which the report was founded. It is clear that Dr Yusuf himself reached firm conclusions on the information which he had gathered. The tribunal finds however, that these conclusions, whatever their merit and whether they exceeded his mandate, were the product of an honestly conducted effort to carry out an objective investigation. Dr Yusuf’s conclusionsm, whether right or wrong, were the result of an extensive investigation rather than a pre-ordained outcome.
90.
It was suggested to Dr Yusuf in
cross-examination that some evidence of
pre-judgment on his part is found in the fact that page two of his report
contains the observation that, ‘The evidence clearly establishes that all the
allegations except number four are clearly established against Mr Muhammad
Al-Qaryooti’. The tribunal rejects this suggestion. The highlighted
observation appears under a heading ‘Executive Summary’. In a 44 page report
the inclusion of an executive summary at the outset is a matter of authorial
style and this does not assist the tribunal in determining whether the
investigation was based on a pre-judgement of the issues.
91. In addition to setting out his own conclusions on the evidence he has gathered, Dr Yusuf’s report sets out his investigation in detail including his meetings with the claimant and other relevant individuals.
92. The claimant complains that Dr Yusuf’s manner was ‘hectoring and aggressive’. This is denied by Dr Yusuf in the strongest possible terms, ‘that was the greatest lie of the century…untrue, unfair, unjust’.
93. The tribunal has considered the evidence of the claimant, Ms Ni Mhearain, Dr Yusuf and the contents of the investigation report and minutes of the investigation minutes. The tribunal is satisfied that the claimant was informed of the nature of the matters under investigation and he was also informed in broad terms of the reasons why those matters were being investigated. The claimant was given an opportunity to answer the questions and to make any points which he wished to. The claimant had the assistance of Ms Ni Mhearain who on occasions intervened and took short periods of time out for discussion with the claimant. The tribunal is not satisfied that the claimant was subjected to persistent hectoring and aggressive questioning. The questioning may at times have been firmly focussed on particular issues but that of itself does not makes it hectoring or aggressive.
94. Criticism has been made of Dr Yusuf in respect of some of the language which he uses in the report of his investigation. In submissions on behalf of the claimant, Mr Grainger expresses concern that Dr Yusuf’s conclusions and recommendations, ‘together with his frequent use of hyperbole betray a hostility to the claimant’. Examples given by Mr Grainger include Dr Yusuf’s conclusions that: the Claimant, ‘has thoroughly abused his office because of an overabundance of trust reposed in him…’; and, ‘Dr Al Wazzan should be highly commended for his diligence and courage in raising these very pertinent allegations which have revealed gross abuse of office and trust by [the claimant] over the years’.
95. Dr Yusuf concluded his executive summary with the following words: ‘In view of my findings on these allegations, I advise that the Executive Committee and the Board of Trustees take decisive action to secure redress from Mr Qaryooti through either serious disciplinary measures or outright disposal of his services in line with BIC internal rules and the rights of Mr Qaryooti…’
The summary went on to make criticisms of what Dr Yusuf said were, ‘serious management lapses in the running of BIC…lack of adequate scrutiny of the day to day running of BIC by the Director…These weaknesses suggest the need for acceleration of current efforts to reform management of BIC for efficiency and transparency’.
96. The trenchant criticisms which Dr Yusuf made in respect of the management of the Belfast Islamic Centre are a mark of the independent minded approach he applied to his task. Both the claimant and Dr Mazhar Khan, a trustee of the Centre who was to chair the disciplinary hearing in respect of the claimant’s alleged misconduct, assert that he exceeded his role as investigator in arriving at firm conclusions and recommendations as to disciplinary action.
97. Dr Khan wrote to Dr Yusuf on 20 April 2012. In a letter which extends to more than two A4 pages of typescript Dr Khan complained that Dr Yusuf had exceeded his mandate in making findings about the overall management of the BIC. He wrote to Dr Yusuf, ‘In the executive summary [comments about management of BIC] it should be your observations and not findings as your mandate did not cover those aspects referred to by you…The investigation has thus clearly exceeded its mandate and judgemental about issues on which it had no remit’. Dr Khan was also strongly critical about what he regarded as ‘adverse remarks and conclusions which could be against their interest’ in respect of individual trustees and members of the executive committee.
98. In concluding his letter Dr Khan wrote, ‘I may ask the EC to accept only that part of the report which deals with the director and as being an investigation the final punitive or other measures should be dealt with [sic] the disciplinary procedure’.
99. The letter of Dr Khan is significant for a number of reasons. Firstly it is evidence that in compiling the report Dr Yusuf both acted and exercised his judgment independently. It is quite clear that Dr Yusuf was not working to a brief from anyone in authority at the BIC as to the desired outcome of his investigation.
100. Dr Yusuf’s report not only included his own adverse conclusions concerning the claimant’s conduct, it also contained his recommendations that two named trustees and one named member of the executive committee should be asked to resign or step down in light of what Dr Yusuf perceived to be their shortcomings. As noted above, Mr Grainger drew the tribunal’s attention to the terms in which Dr Yusuf praised Dr Al-Wazzan. These terms of praise must be balanced against Dr Yusuf’s comments in respect of two trustees, whether the comments were justified or not, that, ‘it has become apparent that they are not capable of discharging their office as Trustees any longer given their limited literary capacities’.
101. A second matter of significance arising from Dr Khan’s letter to Dr Yusuf is Dr Khan’s insistence that the investigation was a separate matter from any decision as to disciplinary measures. This is something which Dr Khan felt should only take place within the disciplinary procedure. Dr Khan did not feel that it was appropriate to be bound by Dr Yusuf’s own conclusions and recommendations contained within the investigation report as opposed to considering the investigation itself.
The Disciplinary Meeting/Hearing
102. On 25 April 2012 Dr Ismail emailed the claimant in the following terms: ‘Following the recent investigation carried out by Dr H Yusuf, allegations of gross misconduct bordering fraud have been found and upheld…A disciplinary hearing will be set in due course and you shall be made aware of date, time and venue. You are advised to inform your union’.
103. The claimant’s union representative, Ms Ni Mhearain, replied on his behalf. The response included the following: ‘I note that you state in your letter that the investigatory panel has ‘upheld’ the allegations made against Mr Al Qaryooti and that these ‘border on fraud’. I must point out that it is not the function of the investigatory process to uphold allegations and that at no time during the investigatory process was Mr Al Qaryooti informed by you of allegations that ‘border on fraud’. I therefore must ask you to refrain from making any further possible prejudicial statements of this nature’.
104. Further correspondence ensued concerning the claimant’s proposed disciplinary hearing. This included an email sent to the claimant on 7 May in which Dr Ismail set out the proposed disciplinary allegations and then stated: ‘…Dr Hakeem Yusuf was appointed by the Executive Committee and Trustees to investigate the above issues and held an interview with you for that purpose. You were given the opportunity to provide an explanation and you opted to have a representative from the Union present. You made admissions in relation to increasing your own salary, as well as the remaining allegations. Dr Yusuf has also interviewed other members of the Charity and has concluded his report in relation to this matter, a copy of which is attached for your information. According to this report you made admissions in relation to increasing your own salary, as well as the remaining allegations. Further, and on the basis of Dr Yusuf’s report and your very own admission, you are now required to attend a disciplinary hearing at the Belfast Islamic Centre on 25 May 2012 at 15:00 hours to give you a further opportunity to provide explanations. You may bring any documentary evidence or witnesses to support your case…’.
105. During the course of Dr Yusuf’s investigation the claimant did acknowledge that he had submitted applications for funding which included provision for an increase in his own salary, but at no point did he admit any wrongdoing in his conduct.
106. Ms Ni Mhearain objected to the tone of Dr Ismail’s email and in an email dated 18 May 2012 remonstrated that she was, ‘…concerned that you continue to make prejudicial statements, namely that Mr Al Qaryooti made admissions to the investigating officer. This is untrue. I would once again request that you cease forthwith from making statements that are aimed at influencing and possibly corrupting what should be a fair and impartial process’.
107. Dr Ismail in turn objected to the tone of Ms Ni Mhearain’s email. All ensuing correspondence between them was expressed by each of them in forthright terms.
108. In due course when Ms Ni Mhearain learned that Dr Ismail was likely to be a member of the disciplinary panel she objected in writing and stated that, ‘I strongly object to his presence given the prejudicial nature of the statements he has made on this matter’ [email to Dr Khan dated 22nd August 2012]. On 24th August 2012 the claimant emailed Dr Ismail in almost identical terms, ‘…a number of trustees appear to be aware of the makeup of the panel and have informed me that you will chair the panel. I strongly object to this given the prejudicial nature of the statements you have made on this matter’.
109. Due to the claimant’s ill health the disciplinary hearing was delayed and it did not take place until 20 September 2012. The claimant attended the meeting with his union representative Ms Ni Mhearain. The disciplinary panel comprised Dr Mazhar Khan (Chair), Dr Ismail, and Mr Mohammad Akram. At the hearing no objection was taken by Ms Ni Mhearain to the composition of the panel. She told the tribunal that she, ‘…did not think that it would be instructive to raise the point. It was a point I would raise on any appeal’.
110. The claimant faced the following four allegations at the disciplinary hearing:-
(1) ‘Unilaterally increasing your salary from £26,000 to £28,000 per annum on the funding application dated 18th January 2010 without the prior authority of the executive committee.
(2) Attempting to further unilaterally increase your salary from £28,000 to £29,236 per annum on the funding application for the year 2011/12.
(3) Poor time keeping and leaving work without prior permission or authority.
(4) Failure to recognise you line manager, who was appointed by the executive committee and further failing to abide by his instructions.’
111. Prior to the disciplinary hearing the claimant had been sent a copy of Dr Yusuf’s investigation report. He was not provided with a copy of the minutes of the various investigation meetings held by Dr Yusuf.
112. During the disciplinary meeting both the claimant and Ms Ni Mhearain addressed the panel. The notes of that meeting seem to indicate that on occasions during the meeting it was Ms Ni Mhearain who did most of the talking on the claimant’s behalf. She robustly advanced the claimant’s case and sought to protect his interests in respect of the allegations.
113. In respect of the alleged unauthorised salary increase from £26,000 to £28,000, Ms Ni Mhearain focussed on events which took place after the application had been submitted on 18 January 2010. The matters she referred to suggested that there came a point when the executive committee would have been aware that £28,000 appeared in the funding application and that members of that committee were also aware that funding was ultimately granted on the basis of a £28,000 salary. Neither Ms Ni Mhearain nor the claimant referred the disciplinary panel to any information which might indicate that prior to the submission of the application the claimant had either sought appropriate authority from his employer for the proposed increase or even drawn it specifically to the attention of his employer.
114. In respect of the proposed increase from £28,000 to £29,236 for the funding year 2011/2012, the minutes of the hearing record that the case advanced on the claimant’s behalf by Ms Ni Mhearain was that the inclusion of the proposed increase in the funding application, ‘…was not an attempt to increase in salary [sic]; this was only a bargaining exercise…’. Asked by Dr Khan who was chairing the disciplinary panel whether her argument was that, ‘…the funding application was a speculative application to increase funding and not the salary of the director’, Ms Ni Mhearain replied yes.
115. In respect of time keeping and the claimant’s alleged failure consistently to sign in using the google calendar when it was set up, Ms Ni Mhearain questioned whether anyone in the Belfast Islamic Centre had used the google calendar appropriately. She highlighted what she said were inadequacies in the calendar as it did not take into account weekends and bank holidays. Ms Ni Mhearain also pointed out that on occasions people signed in retrospectively.
116. During the course of discussion concerning the allegation that the claimant failed to recognise his line manager, Dr Ismail referred to the claimant’s ‘obnoxious behaviour’. Ms Ni Mhearain immediately objected to the use of that term. Following intervention from Dr Khan, the word ‘obnoxious’ was withdrawn by Dr Ismail.
Disciplinary panel findings
117. Dr Khan told the tribunal that the disciplinary panel had meetings over a period of three days before reaching a final conclusion.
118. The disciplinary panel found that the claimant unilaterally increased his salary from £26,000 to £28,000 on the funding application dated 18 January 2010 without the prior authority of the Executive Committee. The panel found this to be gross misconduct and described it as, ‘…a highly irregular course of action as it was directly related to director’s own salary and resulted in his personal gain and also amounted to breach of trust’. This was the only finding of gross misconduct which the panel made.
119. The disciplinary panel found to be proven allegation (3) concerning poor time keeping and leaving work without prior permission or authority. A similar finding was made in respect of allegation (4), namely the claimant’s failure to recognise his line manager and failing to abide by his instructions. In respect of both allegations (3) and (4) the disciplinary panel found that the claimant’s conduct amounted to misconduct.
120. In respect of allegation (2) which related to an attempt to increase the claimant’s salary from £28,000 to £29,236 on the funding application for the year 2011/12, the panel thought that the claimant’s conduct amounted to a surreptitious attempt to increase his salary and that it was a breach of the trust which had been placed in the claimant as Director of the Belfast Islamic Centre. In the panel’s view it raised questions of probity and transparency in respect of the claimant. Despite this the panel did not make a formal disciplinary finding and the allegation was withdrawn. Dr Khan told the tribunal that there had been a dispute as to whether allegation (2) amounted to a serious disciplinary matter or not. Dr Khan’s personal view prevailed. He told that tribunal that his opinion was that the allegation, ‘was not established because it was not fraud, it didn’t succeed. It was an attempt to increase his salary fraudulently’.
121. The tribunal is satisfied that the disciplinary panel did believe that the claimant had engaged in misconduct as they found. Having carefully considered the evidence of Dr Khan, the tribunal is satisfied as to the sincerity of his belief in the findings made. The time which the panel took to consider their decision is inconsistent with the findings having been made simply due to what the claimant alleged was, ‘a concerted campaign to oust me’. The claimant suggested to the tribunal that Dr Khan had been part of such a campaign.
122. Similarly, Dr Khan’s explanation as to why allegation (2) was not proven is inconsistent with a prejudged, prejudiced approach to the allegations. As a member of a three man disciplinary panel, Dr Khan alone could not have dictated the outcome in respect of allegation (2). At least one other member of the panel had to agree with him. The tribunal recognises that on the basis of the finding made by the panel as to the surreptitious nature of the claimant’s conduct in respect of allegation (2), some other disciplinary panels may not have withdrawn the allegation. The fact that this panel did so is a mark of its good faith and its effort to reach conclusions which it genuinely felt were merited by the information presented to it.
123. In view of its findings the panel recommended that the claimant be dismissed. By letter dated 8 October 2012, Dr Khan informed the claimant of this outcome and advised him as to his right to appeal.
Appeal against disciplinary findings
124. The claimant gave notice that he wished to appeal and in a document headed, ‘Appeal letter from Muhammad Al Qaryooti to Belfast Islamic Centre’ he set out his reasons for appeal.
125. Dr Khan told the tribunal that it was not easy to find three suitable panel members to deal with the appeal. In respect of the composition of the original disciplinary panel Dr Khan told the tribunal, ‘We are a small community and it is very difficult to select people out of the community who can serve on this type of panel’. Ultimately Dr Khan succeeded in finding three people who were prepared to deal with the matter: Dr Kassim (a consultant physician), Professor Nadjaz (an academic), and Dr Yousuf (a businessman and entirely distinct from the author of the disciplinary investigation report).
126. The tribunal heard from Dr Kassim who was the chairperson of the appeal panel. Prior to sitting on the appeal panel, he had no involvement in the affairs of the Belfast Islamic Centre other than with the mosque regeneration project. Dr Khan had been his senior hospital consultant for six months in 2002. Dr Khan is now retired. Dr Kassim has never met Dr Ismail face to face. He has only met Mr Akram at prayers at the mosque. He did not know his colleagues on the appeal panel until he was invited to be a member of the panel.
127. The appeal panel members met for the first time in the Wellington Park Hotel a couple of weeks before the hearing. Dr Khan was present at the meeting and it was then that the panel members were given the documents. Dr Kassim told the tribunal that Dr Khan explained the background to the matter, ‘Dr Khan explained that there was a disciplinary hearing and he recollected what had happened as far as Dr Hakeem’s report. It was a summary of what had happened and that was why we took Dr Hakeem’s report as the gold standard’.
128. It is submitted on behalf of the claimant that the fact of this meeting between Dr Khan and the members of the appeal panel, ‘is sufficient to undermine the fairness and transparency of the appeal process’. Whether it was desirable for such a meeting to take place or not, the tribunal has had the benefit of hearing Dr Kassim give evidence in person. The tribunal is in no doubt that Dr Kassim approached his task with care and an independent outlook.
129. Dr Kassim did not perform his task alone. No evidence has been adduced which suggests that either Professor Nadjaz or Dr Yousuf failed to exercise their own independent judgment in considering the appeal.
130. Dr Khan gave evidence and was cross-examined about a range of issues. The tribunal is unable to detect anything in his evidence or conduct which might substantiate a suggestion that in arranging the meeting in the hotel he either wished to prejudice or did prejudice the appeal panel members to reach a particular conclusion.
131. The tribunal has seen the minutes of the appeal hearing which took place on 20 December 2012. The hearing was voice recorded by a note taker who subsequently prepared a typed minute of the meeting. The claimant again attended with Ms Ni Mhearain. As at the original disciplinary hearing, Ms Ni Mhearain assisted the claimant and addressed the panel as she saw fit. At the outset of the meeting she read to the panel a prepared address which set out the claimant’s position in respect of the allegations.
132. The claimant was reminded of the allegations at the outset of the hearing and the appeal panel worked through the allegations with the claimant and Ms Ni Mhearain. The panel asked questions about the allegations and both the claimant and Ms Ni Mhearain contributed to the answers and explanations.
133. In his letter setting out the reasons for his appeal, the claimant addressed allegation (1) which dealt with the proposal to increase his salary from £26,000 to £28,000. The reasons given for appealing against that finding focussed on events which post-dated the submission of the application for funding. No assertion was made in the appeal letter of any fact which might support a case that the Executive Committee had been informed of the proposed increase to £28,000 prior to the submission of the funding application.
134. In her opening address to the appeal hearing Ms Ni Mhearain stated that the funding application was prepared by the claimant with the support of Mr Mahabur Rahman who was then treasurer. During the course of the appeal hearing the claimant was asked by the panel member Dr Yousuf, ‘Who authorised your 2010 salary increase to £28k/yr?’. The claimant replied, ‘I am fully confident that I have discussed with Mr Akram, Mr Joya, Dr Irfan and Babu [Mahabur Rahman] everybody (informal) they knew about this’.
135. Ms Ni Mhearain sought to explain the absence of any documentary evidence of authority prior to the submission of the application by stating that there was no written approval procedure to go through in the Belfast Islamic Centre.
136. Dr Yusuf’s disciplinary investigation report which was considered by the appeal panel records that when Mr Rahman was spoken to by the investigator Dr Yusuf, Mr Rahman said that he had signed Section A of the form but that he had not seen Section B which dealt with the financial aspects. Mr Rahman told the investigator that he had no idea how much was applied for. When the claimant was asked by the investigator about who had authorised the pay rise he referred by name only to Mr Rahman. The claimant told the investigator, Dr Yusuf, that Mr Rahman had signed the application and worked with him. When told by Dr Yusuf that Mr Rahman asserted that he had not seen Section B of the application, the claimant thought that it was strange that Mr Rahman did not know the figures. The claimant was asked by Dr Yusuf if there was any meeting where the claimant’s salary was increased from £26,000 to £28,000. The claimant responded by referring to the letter of offer of funding which he said was distributed to everyone. By its very nature this letter offering funding post-dated the submission of the application for funding. The claimant went on to explain to Dr Yusuf that when his salary was £26,000 he had an issue in getting paid for his mobile phone and his travelling expenses. He explained that instead of doing the mobile phone expenses on a monthly basis at a cost of £50 or £60 per month, he felt it was the same thing to put his own salary up to £28,000.
137. The appeal hearing commenced at 1.30 pm. At 3.10 pm one of the panel members, Dr Yousuf, left to catch a flight to a business engagement in Leeds. By that stage the panel had completed discussion with the claimant concerning the salary increase issues. Dr Yousuf was present and actively participated throughout the substantive discussion in respect of the salary increase issues. No objection to Dr Yousuf’s departure was raised at the time by either the claimant or Ms Ni Mhearain.
138. The hearing continued in Dr Yousuf’s absence when consideration was given to the time keeping and line management allegations. In respect of his apparent absences as indicated by the google calendar, the claimant insisted that he had not been absent. He did not know how he had missed signing in on those days. He said that they had a proper register for time keeping but that the previous committee didn’t sign and nor did the volunteers. The claimant explained that he felt unfairly targeted over the issue.
139. The meeting concluded with Ms Ni Mhearain agreeing to circulate to all three panel members by email certain documentation which it appeared that they did not have.
140. Dr Kassim told the tribunal that a panel meeting took place after the documentation and the typed minute of the meeting was available. All three members of the panel participated, this included Dr Yousuf. On 6 January 2013 Dr Kassim sent the claimant what was described as a ‘summary reponse to the appeal hearing’ to inform him of the outcome. This was followed up by a full response with reasons dated 20 January 2013. The appeal panel were in agreement with the findings and decision of the disciplinary panel.
141. A claim form alleging unfair dismissal was delivered by hand to the tribunal office on 7 January 2013.
LAW
Unfair dismissal
142. Article 126 of the Employment Rights (Northern Ireland) Order 1996 [‘ERO’] provides that an employee has a right not to be unfairly dismissed by his employer. Article 130(1) of the ERO provides that 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 principle reason) for the dismissal, and
(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
143. Under Article 130(2)(b) of the ERO a reason which relates to the conduct of the employee is capable of justifying dismissal.
144.
Article 130(4) of the ERO
provides that 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.
145. The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal. The standard procedure consists of three steps. At Step 1 an 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 and 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 requires a meeting and Step 3 an appeal.
146. A dismissal may be regarded as automatically unfair under Article 130A (1) of the 1996 Order where one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal, the procedure has not been completed, and, the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements, otherwise Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.
147. Judicial guidance on the proper application of Article 130 has been offered on many occasions. Morgan LCJ in Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 at paragraph 15 commented that:
‘Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.’
148. At paragraph 19 of Rogan Morgan LCJ commented further that: ‘The issue as to what if any conduct constituted the reason for dismissal was clearly a matter on which the belief of the disciplinary was the critical issue and the agreed and correct legal position of the parties was that having established the belief of the disciplinary panel the tribunal should not rehear the allegations but should consider whether the employer acted reasonably having regard to the material available to it and the investigation carried out by it.’
149. The court in Rogan went on to approve the approach to the application of Article 130(4) as set out in the case of Iceland Frozen Foods v Jones [1983] ICR 17:
(a) The starting point should always be the words of Article 130(4).
(b) In applying the Article 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.
(c) 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 from that of the employer.
(d) 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 and another quite reasonably take another.
(e) 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.
150. The question of dismissal in the context of alleged misconduct was considered by Arnold J in British Home Stores v Burchell [1980] ICR 303. He stated:
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds 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 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 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 circumstances be a reasonable conclusion”. [Emphasis added]
Procedure
151. The Court of Appeal in Taylor v OCS Group Ltd [2006] IRLR 613 CA addressed the issue of fairness in the procedure adopted during the disciplinary process. Lady Justice Smith at paragraph 47, in considering internal appeals against disciplinary findings stated:
‘The use of the words 'rehearing' and 'review', albeit only intended by way of illustration, does create a risk that ETs will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal hearing was a rehearing or a mere review. This error is avoided if ETs realise that their task is to apply the statutory test. In doing that, they should consider the fairness of the whole of the disciplinary process. If they find that an early stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at the early stage.’ [Emphasis added]
152. Lady Justice Smith continued at paragraph 48:
‘In saying this, it may appear that we are suggesting that ETs should consider procedural fairness separately from other issues arising. We are not; indeed, it is trite law that s.98(4) requires the ET to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal, as they have found it to be. The two impact upon each other and the ET's task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. So for example, where the misconduct which founds the reason for the dismissal is serious, an ET might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee. Where the misconduct was of a less serious nature, so that the decision to dismiss was nearer to the borderline, the ET might well conclude that a procedural deficiency had such impact that the employer did not act reasonably in dismissing the employee. The dicta of Donaldson LJ in Union of Construction, Allied Trades and Technicians v Brain [1981] IRLR 224 at p.227 are worth repetition:
'Whether someone acted reasonably is always a pure question of fact. Where parliament has directed a tribunal to have regard to equity – and that, of course, means common fairness and not a particular branch of the law – and to the substantial merits of the case, the tribunal's duty is really very plain. It has to look at the question in the round and without regard to a lawyer's technicalities. It has to look at it in an employment and industrial relations context and not in the context of the Temple and Chancery Lane.'
153. It is clear from the dicta O’Donnell LJ in Ulsterbus Ltd v Henderson [1989] IRLR 251 NICA that a disciplinary process does not have to be dealt with in a quasi judicial manner:
“What the tribunal appears to be suggesting is that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses, and cross-examination of witnesses. While some employers might consider this to be necessary or desirable, to suggest as the Tribunal did that an employer who failed to do it in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside: ‘…a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view’, is in my view insupportable.”
154. The Employment Appeal Tribunal in Premier International Foods v Dolan UKEAT/0641/04/MAA applied Ulsterbus Ltd and commented at paragraphs [23]-[24]:
‘We consider those authorities to establish three clear propositions:
(1) There is no general obligation on an employer to carry out a quasi-judicial investigation involving a confrontation of witnesses, and/or cross-examination of witnesses, before concluding that an employee should be dismissed.
(2) There is, accordingly, no requirement that in each and every investigation of a disciplinary nature the complainants be available to be cross-examined by the employee subject of the complaints.
(3) However, there will be exceptional cases in which a properly or reasonably conducted workplace investigation of misconduct will require that the complainants make their statements in the presence of the employees whose conduct is in question and/or that they can be questioned about those complaints.
[24] Those principles are to be applied against the general background that the question that the Tribunal hearing a claim for unfair dismissal has to ask itself is “whether, in all the circumstances, the investigation undertaken as a whole was fair”.’ [Emphasis added]
155. During the disciplinary process the claimant was provided with a copy of the investigation report. He was not provided with a copy of the minutes of meetings which Dr Yusuf held with relevant people during the course of the investigation. The tribunal was referred by Mr Phillips to Fuller v Lloyds Bank PLC [1991] IRLR 336 where the Employment Appeal Tribunal addressed the question of whether or not a disciplinary process is rendered unfair by an employer’s failure to provide an employee with statements taken from witnesses during the course of internal disciplinary proceedings. It held that although it was normally desirable that the material upon which a disciplinary investigation is founded and on which any penalties may be based should be made available to the person being disciplined, failure to provide such material is not conclusive of unfair dismissal. Any defect in disciplinary procedure has to be analysed in the context of what occurred. Where there is a procedural defect, the question that always remains to be answered is did the employers’ procedure constitute a fair process? A dismissal will be held unfair either where there was a defect of such seriousness that the procedure itself was unfair or where the results of the defect taken overall were unfair.
156. In his written submissions Mr Grainger has referred the tribunal to a series of cases to support the proposition that it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite. In such circumstances the tribunal is urged to scrutinise carefully the reasonableness of the disciplinary investigation. The cases the tribunal was referred to include: A v B [2003] IRLR 405 EAT; Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA; TDG Chemical Ltd v Benton EAT 10 September 2010; Stuart v London City Airport Ltd EAT 09 November 2012; and Turner v East Midlands Trains Ltd [2013] ICR 525.
157. In Premier International Foods v Dolan UKEAT/0641/04/MAA at paragraph 33 the Employment Appeal Tribunal considered whether an investigator could also fairly be the chair of the disciplinary meeting:
‘[33] However, in our judgment, it is for the Employment Tribunal, as the “industrial jury” to determine whether, on the facts of a particular case, having regard to the nature of the allegations made, the manner of the investigation, the size and capacity of the employer's undertaking, and all other relevant circumstances, whether it was unfair in a particular case for the investigator to also chair the disciplinary meeting and be the dismissal decision-taker.’
Conclusions
158. The tribunal has reached the following conclusions on the basis of the findings of fact and having given careful consideration to the oral and written submissions advanced on behalf of each party.
159. On behalf of the claimant, Mr Grainger submits that:-
(a) The disciplinary investigation was unfairly conducted.
(b) The firm conclusions reached by Dr Yusuf tainted the subsequent disciplinary hearing.
(c) Dr Ismail should not have been on the disciplinary panel due to: (i) his having provided evidence to the investigation, and (ii) his being prejudiced against the claimant having prejudged the matter.
(d) Mr Akram should not have been on the disciplinary panel having also provided evidence to the investigation.
(e) The claimant should have been given a copy of the minutes of the investigation meetings held by Dr Yusuf.
(f) At the disciplinary hearing no real consideration was given to mitigating factors.
(g) The transparency and fairness of the appeal process was fundamentally undermined by: (i) Dr Khan meeting with the panel for one hour when they first met, and (ii) One member of the appeal panel absenting himself part way through the hearing.
160. On behalf of the respondent, Mr Phillips submits that:-
(a) The decision to dismiss was fair.
(b) The tribunal is not required to dissect forensically each part of the disciplinary process, the issue is overall fairness.
(c) In contrast to the disputed pay increase, there was documentary evidence to demonstrate that two previous pay increases had been expressly authorised.
161. The tribunal is satisfied that, notwithstanding criticism which might be made of aspects of the disciplinary process, taking the process as a whole the respondent’s decision to dismiss the claimant was taken in accordance with Article 130(4) and the case law thereon.
162. They may have different reasons for reaching the conclusion but both the claimant and Dr Khan are united in a belief that Dr Yusuf went beyond his mandate in respect of the investigation. He not only made recommendations in respect of matters which fell outside the scope of his instruction, but he also made firm recommendations as to the appropriate outcome of the disciplinary proceedings.
163. The tribunal has found however that the substance of the investigation itself was extensive and it was approached in an entirely independent mindset by Dr Yusuf. The fact that by the end of his investigation Dr Yusuf had reached firm conclusions does not of itself indicate that the investigation was approached by him in anything other than an objective manner. The evidence in respect of the proposed salary increases was investigated fully. The allegations were set out clearly to the claimant and he was given a full and fair opportunity to respond to them.
164. The investigation report itself reproduced substantially the information contained in the minutes of Dr Yusuf’s investigatory meetings with witnesses. The claimant had access to this report during the disciplinary process. At the tribunal hearing the claimant had copies of the minutes of the investigatory meetings. The tribunal was not directed by the claimant to any substantial information appearing in the minutes which was not also contained in the investigation report itself, or to any particular instance of unfairness occasioned by not having earlier access to the minutes. In the particular circumstances of this case the tribunal finds that the absence of access to Dr Yusuf’s minutes during the disciplinary process was not the cause of fundamental unfairness in the disciplinary process.
165. As is set out in the findings of fact, the tribunal finds that sight of Dr Yusuf’s recommendations did not fundamentally taint or cause prejudgement by the disciplinary panel chaired by Dr Khan. The disciplinary panel utilised the information gathered by Dr Yusuf as set out in the report of the investigation but it approached the issue of findings independently. It is quite clear from the tone of Dr Khan’s letter to Dr Yusuf that he did not intend to be bound by any of Dr Yusuf’s findings or recommendations. The tribunal is satisfied that Dr Khan approached the disciplinary hearing as a strong chairperson and with an open mind as to the outcome.
166. The Belfast Islamic Centre depends on a core group of volunteers. Inevitably the pool of those available, willing and suitable to participate in a disciplinary panel is limited. Objection was taken to Dr Ismail’s participation in the panel prior to the hearing but was not renewed at the disciplinary meeting itself. Ms Ni Mhearain, ‘…did not think that it would be instructive to raise the point. It was a point I would raise on any appeal’. In other words, if the meeting was a success from the claimant’s perspective nothing more would be said about Dr Ismail’s presence on the panel, but if the outcome was poor then Ms Ni Mhearain would rely on the issue. No objection was raised to Mr Akram’s presence on the panel.
167. In his meeting with Dr Yusuf for the purposes of the investigation Dr Ismail expressed a strong belief that the claimant’s conduct had fallen short of what was appropriate. Dr Yusuf records that Dr Ismail described the claimant as obnoxious at one point, a term which he was to repeat at the disciplinary panel. In all the circumstances it is unfortunate that the size of the organisation did not more readily allow for a panel to be selected from those who had no extensive prior involvement with the claimant. The claimant occupied a pivotal role in the Belfast Islamic Centre and doubtless it would have been difficult to find among the Executive Committee and trustees individuals without extensive prior engagement with the claimant.
168. Despite the difficulties in the panel selection, the tribunal is satisfied that the overall conduct of the initial disciplinary panel was fair. The panel formed a genuine belief that the claimant had been guilty of misconduct. This belief was formed on reasonable grounds and following a reasonable investigation.
169. The Executive Director’s role was a vital one as is evident from the outline job description. A high degree of trust was placed in him. He was the most senior salaried member of staff and he occupied a leadership role. His job description required him to assist in the preparation of strategic plans for the Centre and to maintain accurate financial and administrative records. He was expressly required to, ‘assist the Executive Committee in identifying funding requirements and accessing appropriate funding opportunities to support the work of the Centre…’. The claimant has academic and professional qualifications in business administration. In the circumstances, it is difficult to understand why he should not have ensured that his request for a salary increase was not formally submitted for the Executive Committee’s consideration prior to submission of the application for funding on 18 January 2010.
170. The tribunal rejects the suggestion made by Ms Ni Mhearain that this is explained because there was no procedure to follow. As an educated business professional in a leadership role it should have been obvious to the claimant that he should seek authority before seeking funding for any increase in his salary. It is what he had done in previous years. The executive committee meeting minutes of 13 May 2008 record that there was a, ‘Pay rise for the director of 15% to £23,000 per year, after a request from the director, approved by the committee’. On 21 April 2009, it was a trustee Mr Latif who wrote to the respondent’s accountants to confirm a pay increase for the claimant. [Emphasis added]
171. The evidence before the disciplinary and appeal panel would have been different if the claimant had ensured that there was a proper documentary record of in respect of his request for an increase in his salary prior to the submission of his funding application. The tribunal is satisfied that in view of the seniority of the claimant’s post and the absolute requirement for trust and transparency in his conduct, that the respondent’s decision to dismiss the claimant in respect of the finding of gross misconduct concerning the salary increase from £26,000 to £28,000 fell within the band of reasonable responses open to them.
172. In respect of the appeal panel, the tribunal has found that they approached their task independently notwithstanding the meeting with Dr Khan at the Wellington Park Hotel. The absence of Mr Yousuf for part of the appeal hearing is unfortunate but in the particular circumstances does not undermine the overall fairness of the hearing. By the time that Mr Yousuf departed, discussion concerning the allegation of gross misconduct had already been completed. When the panel came to consider its decision, Mr Yousuf had the benefit of a note of the appeal hearing in typescript. The appeal panel was in any event a three person panel which ultimately reached a unanimous decision.
173. The tribunal is satisfied that the decision to dismiss was one which in all the circumstances of the case was properly a decision which it was open to the respondent to make. In view of the vital importance of the claimant’s role at the BIC it was essential that the respondent could have absolute confidence in his probity. This fundamentally necessary trust was breached by the claimant’s lack of transparency in advancing his personal financial interests in the funding application while failing to secure appropriate advance authority from his employer as the claimant knew he was required to do. The nature of the breach of trust was such that the decision to dismiss immediately fell within the range of permissible responses which was available to the respondent.
Chairman:
Date and place of hearing: 28 October – 1 November 2013, Belfast.
Date decision recorded in register and issued to parties: