Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2677/15

 

 

 

CLAIMANT: Derek Donaghy

 

 

RESPONDENT: Alpha LSG Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed by the respondent. His claim of unfair dismissal therefore fails.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms E Bailey

Ms T Madden

 

Appearances:

The claimant was represented by Mr A Donaghy.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Eversheds, Solicitors.

 

Background

 

1. The claimant was employed for approximately five years as a shift leader in the respondent's bonded warehouse at Belfast Airport. That warehouse contained cigarettes and alcohol for duty free sale, as well as other items, such as soft drinks, crisps, paper cups, etc.

 

2. A pallet load of cigarettes was discovered to be missing from the warehouse. The retail value of that pallet load was in excess of £40,000.00.

 

3. The claimant felt that his ' best guess' was that he had dumped the cigarettes in a skip by accident.

 

4. The respondent was not content with this explanation. Following the claimant's suspension, an investigation, and a disciplinary process, he was dismissed for gross misconduct. This dismissal was confirmed on appeal.

 

5. The claimant alleged that he had been unfairly dismissed by the respondent. The respondent argued that this had been a fair dismissal for gross misconduct.

 

The Law

 

6. The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

 

7. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

 

"130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

(a) the reason (or if more than one, the principal reason) for the dismissal and

 

(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2) a reason falls within this paragraph if it -

 

(b) relates to the conduct of the employee,

 

(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

 

(b) shall be determined in accordance with equity and the substantial merits of the case."

 

8. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

 

"(49) The correct approach to [equivalent GB legislation] was settled in two principal cases - British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) -v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

 

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

 

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

 

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, and another quite reasonably take another;

 

(5) the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair."

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, it must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being "sure", as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion."

 

9. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

 

"I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer."

 

He continued at Paragraph 19:-

 

"It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal."

 

10. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

 

"In brief the council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the 'range or band of reasonable responses'. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity."

 

At Paragraph 38 of the decision, he continued:-

 

"On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council's dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller's claim."

 

11. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

 

"Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite"

 

"In A v B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."

 

12. It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal. It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal: ie whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.

 

The hearing

 

13. This case had been case-managed. The parties had exchanged full, signed and dated witness statements in advance of the hearing. Those witness statements took the place of oral evidence-in-chief. Each witness sworn or affirmed to tell the truth, adopted their witness statement as their evidence to the tribunal, and were then cross-examined and briefly re-examined.

 

14. The evidence was heard on Tuesday, 19 April 2016, and submissions were heard on Wednesday 20 April 2016. Following these submissions, the panel met and reached their decision. This document is that decision.

 

15. The claimant gave evidence on his own behalf. He had also exchanged two witness statements which were allegedly from two former work colleagues, Ms Aimee Rainey and Mr Michael McNally. Those two witness statements were short and contained nothing of obvious relevance to this case. They were also, word-for-word, identical to each other. In any event, neither Ms Rainey nor Mr McNally attended the hearing to adopt those identically worded witness statements as their evidence or to be cross-examined by the respondent. The claimant's representative applied for Witness Attendance Orders to compel their attendance. Given the lack of any apparent relevance in these witness statements, the suspiciously identical wording of those statements and the lateness of the application, the application to issue Witness Attendance Orders was refused.

 

16. Two witnesses gave evidence for the respondent. Firstly, Mr Mark Irons, who had conducted the disciplinary hearing and who had reached the decision to dismiss the claimant. Secondly, Mr Martin Rowe, who had heard the claimant's appeal and who had rejected that appeal against the dismissal decision.

 

Relevant findings of fact

 

17. The claimant was, at all relevant times, responsible as shift leader for the running of the bonded warehouse at Belfast Airport and for compliance with both internal and HMRC requirements. His supervisor, Alistair Lynas, left day-to-day control of the Belfast warehouse to the claimant.

 

18. In December 2014, the respondent introduced an internal audit system which provided, inter alia, for daily checks on alcohol and cigarettes held in each warehouse, including the warehouse at Belfast Airport. That audit system was obviously designed to ensure that actual stock could be reconciled with the stock recorded on the respondent's computer system. That new audit system was not properly introduced in the Belfast warehouse. Mr Lynas had assumed that it would have been implemented by the claimant. The claimant accepted in a disciplinary hearing on 4 September 2015 that Mr Lynas never went into the bonded warehouse.

 

19. In an e-mail dated 19 June 2015, the respondent's stock controller asked the claimant to establish how many John Player Blues, valued at over £40,000.00, were in ' pristine condition'. Those cigarettes had been discontinued by an airline customer and efforts were to be made to return the discontinued cigarettes to their original supplier.

 

20. In an e-mail dated 22 June 2015, the claimant advised the stock controller that he would ' need to open the pallet and have a look'. It seems clear that the respondent's warehouse premises in Belfast were not large and having ' a look' involved only locating the pallet within a smallish warehouse and, if necessary, peeling back the black plastic wrapping on that pallet to check its contents.

 

21. On the same day, 22 June 2015, the stock controller replied to the claimant and asked him to ' do so and provide a breakdown'.

 

22. Some four days later on 26 June 2015, the stock controller sent a reminder to the claimant. On the same day, the claimant replied:-

 

"I've had a look at the top ones on the PLT (pallet) and they are poor enough quality."

 

This response is of particular importance because the claimant was clearly indicating in that response that the pallet of cigarettes was in the warehouse on 26 June 2015 and that he had located that pallet and had inspected it.

 

23. Again on 26 June 2015, the stock controller asked in an e-mail:-

 

"So saying writing it all off?"

 

The claimant replied:-

 

"I wouldn't buy them as new."

 

24. The next relevant e-mail was about one month later on 23 July 2015 when the stock controller advised the claimant that a Mr David Eastwood from the airline customer was going to arrive on the following Monday to check the condition of the John Player cigarettes. The claimant was told:-

 

"Please have them ready."

 

25. On the day of Mr Eastwood's arranged inspection, on 27 July 2015 at 7.30 am, the stock control manager in Manchester received a telephone call from the claimant. In that telephone call the claimant stated that he had a big problem. He no longer had the cigarettes that Mr Eastwood was going to inspect that day. He told the stock control manager that they had been ' binned' back in February or March 2015.

 

The claimant now denies that he had stated to the stock control manager that they had been ' binned' back in February or March 2015. However, the tribunal can see no reason why the stock control manager would have either misrepresented or misremembered the details of that conversation when compiling a statement to the security branch of the respondent some three hours later on that same day. The claimant's denial is not credible and the tribunal prefers the evidence recorded by the stock control manager and reasonably relied on by the respondent in the disciplinary proceedings.

 

26. At 8.26 am on the same day, the claimant sent an e-mail to that stock control manager, to the stock controller who had originally raised queries with the claimant, and to his supervisor, which read:-

 

"All, regarding the jp blues I have been unable to locate these goods, unfortunately these were dumped with several other delist consumable products, see attached permission to destroy and best estimate that these goods were dumped some time after the 28 ^th of January 2015."

 

There had been no ' permission' to dump or destroy the cigarettes. Apart from the monetary value of the cigarettes, there were clear HMRC implications. HMRC should have been notified if such goods on which duty was payable were to be destroyed.

 

27. At this stage the respondent had been provided with three versions of events:-

 

(i) The cigarettes had been in the warehouse a month earlier on 26 June 2015 and had in fact been checked by the claimant on that date.

 

(ii) The cigarettes had been dumped some time after 28 January 2015.

 

(iii) The cigarettes had been dumped in February or March 2015.

 

28. Even if the respondent were to have felt that the second version put forward by the claimant was somewhat ambiguous and could be reconciled easily with the third version, the third version clearly conflicted with the first version. It cannot be the case that the cigarettes had been dumped in February or March 2015 when they had been inspected by the claimant on 26 June 2015. Both these conflicting versions of events had been provided by the claimant to the respondent. The respondent was entitled to be concerned about the conflict between the versions of events put forward by the claimant.

 

29. On the same day, 27 July 2015, the claimant was suspended on full pay pending an investigation. The respondent's disciplinary procedure provides at Paragraph 5.2 for a suspension where it is believed that the matter to be investigated involves gross misconduct or serious misconduct. It also stresses that any decision to suspend is not considered disciplinary action and does not imply that any decision has been made regarding guilt. The claimant sought to argue that in some way the decision to suspend was premature and unjustified. The tribunal does not agree. At that point the respondent were clearly faced with a serious incident in which a pallet of cigarettes with a retail value of over £40,000.00 had in some way disappeared and where conflicting versions of events had been put forward by the claimant. At the very least, the respondent was entitled to believe that the matter required investigation and that it could involve either gross misconduct or serious misconduct. The interview held on 27 July 2015 at which the suspension was implemented was conducted in compliance with the internal procedure. The claimant did not object to the suspension or ask any questions. The tribunal concludes that the decision to suspend the claimant was fair and appropriate. It did not in any way mean that his ultimate dismissal was unfair.

 

30. On 28 July 2015, the respondent wrote to the claimant confirming his suspension and inviting him to an investigatory meeting to discuss:-

 

"Involvement in anomalies relating to the disappearance of a substantial quantity of Thompson delist stock (cigarette stock).

 

Alleged breach of licensing and excise laws."

 

The letter stated that this would be defined as a gross misconduct allegation which had therefore resulted in his suspension. An investigation meeting was arranged for 4 August 2015. That investigation meeting was to be conducted by Ms McDonald, the security compliance manager. He was notified of his right to be accompanied by a colleague or a union representative. He was also provided with a copy of the disciplinary policy and of the suspension notes.

 

31. Ms McDonald and a representative from HR inspected documentation and interviewed various witnesses in advance of that investigatory meeting. The first witness was Arthur McCormick, a bond assistant. He stated that he was not sure whether the cigarettes had been wrapped but that they simply sat on one pallet. He stated that if the pallet were wrapped it would not go in the skip and that the pallet would have to be unwrapped to unload the cigarettes into the skip. As far as the audit process was concerned, he stated that the claimant normally did it. When the claimant was off work, he or another employee would have done it. When he did it he physically checked the stock in the warehouse and then checked that against the computer record. He stated that the claimant had recently on ' a lot' of times conducted the audit without physically checking the amount of stock present in the warehouse.

 

32. The next interview was with another bond assistant, Joel McTaggart. He had never been involved in the audit process or in destroying delisted stock. The audit process had been conducted by the claimant before they were in (work).

 

33. The next interview was with the claimant. He was represented by Mr Alistair Donaghy who was his representative in the course of these tribunal proceedings. Mr Donaghy was not a colleague and he was not a trade union representative in a trade union recognised or even present in the respondent's workplace. Mr Alistair Donaghy is a representative of ATL, a teacher's union, which has no connection with the respondent. Nevertheless the respondent facilitated his presence.

 

The claimant was asked if he remembered the size of the pallet containing the cigarettes. He stated:-

 

"It was a good sized pallet."

 

That response is significant because in the course of the tribunal proceedings the claimant sought to argue that the pallet containing the cigarettes had been small. He pointed to a table at which he was sitting which was relatively small. He argued, during the tribunal hearing, that a reconstruction exercise using a standard pallet was incorrect. However, that was not the position he had adopted in the investigatory meeting where it was quite clear that he did not say it was a small pallet or even a medium sized pallet. He said it was a ' good sized pallet'. That was the information properly relied on by the respondent.

 

The claimant was also asked whether he had looked at the cigarettes on 26 June 2015. His response was:-

 

"No."

 

Again, that response is significant because it was entirely different to his clear e-mail correspondence of 26 June 2015 in which he stated that he had inspected the pallet and that he had looked at the ' top ones' on the pallet and that they were of ' poor enough quality'.

 

His response on this point in the investigatory meeting was a matter in respect of which the respondent was entitled to be concerned.

 

34. In the course of the investigatory meeting the claimant stated that:-

 

"It would have been a large pallet but would fit in a skip."

 

The claimant also accepted that the procedure in the audit process was to count the stock but that he only ' sometimes' did that. When he was asked:-

 

"Do you understand the importance of doing a physical check?"

 

His response was:-

 

"No."

 

That response and his attitude towards the internal audit process was again a matter about which the respondent was entitled to be concerned.

 

35. In the course of the investigatory meeting the claimant's representative argued that it was a performance issue rather than a disciplinary issue and that the claimant had not been sufficiently trained in relation to the internal audit system. The tribunal is unable to see why additional training would have been required in relation to the internal audit system since the claimant clearly knew enough to conduct the physical check on some occasions and it is simply not credible that he did not understand the importance of a physical check and of reconciling that physical check with the computer record. It is also difficult to understand why additional training would be required to ensure that a ' good sized' or ' large' pallet of cigarettes with a retail value of over £40,000.00 was not thrown into a skip unopened and unchecked. The respondent was entitled to be concerned about all of this.

 

36. The next interview in relation to the investigation process was with Mr Lynas, the manager. Mr Lynas confirmed that the internal audit procedure required a physical check of the stock in the warehouse against the computer record. He stated that the claimant understood the system. He had received training on the matter from the bond manager in Dublin and had not requested further training.

 

The next person interviewed for the investigatory process was Ms Aimee Rainey. She had nothing of relevance to add. The next interview was with Mr Courtney Edgar, a bond assistant. He also had nothing of relevance to add. The next witness was a Mr Michael McNully, a bond assistant. He stated that he knew what the internal audit system was and that the claimant had trained him in that system. It required a physical check of the stock.

 

37. On 6 August 2015, the security investigation summary document summarised the findings of the investigation over some four pages. It also stated that on 3 August 2015 there had been a full stock take in the warehouse and that that stock take had indicated a total loss (including duty) of £152,229.77. That sum included the loss of the John Player cigarettes at slightly over £40,000.00. It concluded that the claimant had admitted to breach of procedures in relation to the audit process and that no reasonable explanation had been put forward for the loss of stock. Ms McDonald recommended that the investigation should proceed to a disciplinary level for gross misconduct. The matter was also reported to the police.

 

38. Given the comments during the interviews and the background to all of this, the decision to proceed to discipline in this matter appears to the tribunal to be entirely reasonable. Furthermore, the investigation appears to have been thorough and careful. It was not in any sense unfair. The reporting of the matter to the police was not unfair or unreasonable although the claimant appeared to challenge that during the course of this hearing. Any employer in these circumstances, particularly taking into account the HMRC implications, would have done the same.

 

39. On 7 August 2015 the claimant was invited to a formal disciplinary meeting on 11 August 2015. That letter set out three specific allegations:-

 

"(1) "Involvement in anomalies relating to the disappearance of a substantial quantity of Thompson delist stock (cigarette stock).

 

(2) Alleged breach of licensing and excise laws.

 

(3) Failure to follow company process and procedure."

 

He was advised of his right to be accompanied by a colleague or a certified trade union representative. Copies of the statements in the investigatory process were forwarded to the claimant together with relevant e-mails and documentation. The disciplinary process was to be conducted by Mr Mark Irons.

 

40. Before the disciplinary hearing, Mr Irons read the documentation and conducted a re-construction with the skip and a standard pallet to see if it was possible for the pallet, including the wooden pallet base, to be placed in the skip. The skip was a top-loading skip with a lid that was supposed to be closed. The exercise which was conducted by Mr Irons and Mr Lynas showed that if the pallet was balanced on top of the forklift blades (rather than with the blades of the forklift being inserted into the slots in the wooden pallet base) and if it was then dropped in to the skip, it could fit but the lid of the skip could not be closed and other pallets could not be placed on top of that pallet. The claimant sought to argue, as indicated above, in the course of the tribunal hearing that this had been a faulty re-construction and that the pallet used was far too large. Given the claimant's indication in the course of the investigatory meeting that the pallet of cigarettes was a ' good sized pallet' and a ' large pallet', the tribunal conclude that the respondent had been entitled, at the relevant time, to rely on the re-construction as indicating that if the claimant had indeed dumped the pallet together with the cigarettes in the skip, the skip could not have been closed and no other pallets could have been placed on top of that pallet.

 

41. The hearing commenced at 10.40 am and finished at 13.30 pm.

 

The claimant insisted he had dumped the pallet in the skip. He stated ' irrespective of report, I will stick to it forever and a day, I dumped the pallet by accident'. That certainty contrasted with his earlier e-mail on 27 July 2015 that it was his ' best estimate that these goods were dumped ... ' and his statement to the stock control manager that he ' thought they had been binned'.

 

In the course of a discussion about the number of pallets destroyed or dumped, the claimant's version was inconsistent. It was originally ' more than one pallet'. Then he appeared to agree two pallets. Then he stated:-

 

"Probably more than a couple of pallets."

 

Then it was three or four pallets. He appeared uncertain about how many pallets were put in the skip and initially whether they were put in at the same time or separately. That contrasted again with his certainty that he had dumped the pallet of cigarettes by accident. The respondent was entitled to be concerned at that contrast. He stated at one point in the hearing that he had not dumped the cigarettes at the same time as he had dumped other products. However he had told the stock control manager on 27 July 2015 that they had been binned when he had been asked to destroy other products.

 

42. When the claimant was asked in the course of the disciplinary hearing whether he had physically checked the quality of the cigarettes on 26 June 2015 he replied again " No". He then stated that he looked at the ones on the top. He did not physically check the quality of the cigarettes. That statement did not sit easily with his e-mails on 26 June 2015.

 

43. On 25 August 2015, as part of the disciplinary process, Mr Irons further interviewed several witnesses. The claimant sought to argue in the course of the tribunal hearing that this was in some way a significant breach of procedure and appeared to argue that the investigation process should have determined all matters and that, if any issues were raised in the disciplinary process, the respondent should properly have stopped the disciplinary process at that point and re-opened the investigation process. The tribunal does not agree. It is perfectly normal for disciplinary processes to involve further enquiries. Indeed it would be wrong if it did not do so. It is not the function of an investigation process to determine liability or to fix facts irrevocably. The investigation process is simply to indicate whether there is a prima facie case to answer. It is then for the persons conducting the disciplinary and appeal processes to determine whether or not those charges are upheld and indeed for those persons to consider everything that is said and to make whatever further enquiries they consider necessary.

 

44. The first witness was Mr Arthur McCormick a bond assistant. Mr McCormick stated that he was familiar with the internal audit process and that he did not think the claimant was recently physically counting stock in the course of that process. He stated that ordinarily only the sides of any pallet would be wrapped in black plastic and that it was difficult to get wrap over the whole pallet. He stated that when products were dumped, the pallet was taken to the skip and then the relevant stock was pushed off the pallet. The pallet itself did not go into the skip.

 

45. Again, as part of the disciplinary process, Mr Irons interviewed Mr Michael McNally a bond assistant. He stated, as had Mr McCormick, that the claimant had conducted the internal audit process early in the morning before the packers arrived. He stated that he had never witnessed a full pallet of stock going in the skip.

 

46. Again, as part of the disciplinary process, Mr Irons interviewed Mr Filip Liwerski, a bond assistant. He confirmed that the claimant had conducted the internal audit process early in the morning, unless he was on holiday when it was conducted by Mr McCormick. He had never witnessed a full pallet going into the skip.

 

47. Again, as part of the disciplinary process, Mr Irons interviewed Mr Joel McTaggart, a bond assistant. He stated that the internal audit procedure was normally conducted by the claimant. He had never witnessed stock destruction. He had never seen a full pallet being put in the skip.

 

48. Again, as part of the disciplinary process, Mr Irons interviewed Mr Courtney Edgar. He confirmed that the claimant normally did the internal audit process. He had seen the claimant physically counting stock a few times. He had never seen a full pallet of stock in the skip.

 

49. Again, as part of the disciplinary process, Mr Irons interviewed Mr Mark Kitson, a bond assistant. He confirmed that the claimant had conducted the internal audit process and that it was now conducted by Mr McCormick. He had not been involved in stock destruction.

 

50. Again, as part of the disciplinary process, Mr Irons interviewed Mr Aimee Rainey, a bond assistant. She stated that the claimant had conducted the internal audit process. She had not been involved in staff destruction and have never witnessed anyone putting a full pallet in the skip.

 

51. Again, as part of the disciplinary process, Mr Irons interviewed Ms Laura Smith, the stock controller. She set out the chain of events in relation to the John Players cigarettes. Mr Irons then interviewed the stock control manager. He explained the stock control process in detail.

 

52. On 27 August 2015, the claimant was invited to a further disciplinary meeting to be held on 4 September 2015 at 10.30 am following those further enquiries. He was advised again of his right to be represented. An additional allegation of:-

 

"suspicion of theft or gross negligence resulting in significant stock losses";

 

was added to the disciplinary charges.

 

53. The claimant sought to argue in the course of the tribunal hearing that the addition of an additional charge at this stage was in someway unfair and that it resulted in the ultimate dismissal being unfair. The tribunal cannot agree. As matters progressed the respondent was entitled to review the nature of the charges and, if appropriate, to put additional charges to the claimant, provided that the claimant had an adequate opportunity to respond. The tribunal is satisfied that the claimant did have an adequate opportunity to respond properly to this additional charge and that no unfairness or impropriety arose.

 

54. The claimant was unable to secure the representation of Mr Alistair Donaghy for this reconvened disciplinary meeting during the morning of 4 September 2015. Mr Irons was not going to be available later in the day and was going to go on holiday immediately thereafter. The claimant proceeded with the meeting and did not ask for a postponement and did not press the matter. It may have been more advisable for the respondent to have postponed the matter for some weeks to allow for Mr Irons' return and for representation to be arranged. However, in the tribunal's view it cannot be said that the respondent acted in anyway unfairly to a significant extent in this matter since the claimant did not ask for a postponement. In any event, even if there were unfairness in this regard, the matter has been remedied by a full re-hearing in the subsequent appeal hearing.

 

55. The reconvened disciplinary meeting commenced at 10.40 am and concluded at 12.33 pm. In the course of this meeting the claimant confirmed, on this occasion, that he understood the importance of conducting a physical check on stock as part of the internal audit process. He repeated that he had dumped the missing cigarettes. It is clear from the record of this reconvened disciplinary hearing that the accusation of alleged theft or gross negligence was put to the claimant and that he had a full opportunity to respond. In the course of the tribunal hearing the claimant sought to argue that that had not happened. The tribunal does not agree.

 

56. At the conclusion of the reconvened disciplinary hearing the claimant was advised orally by Mr Irons that the decision had been made to summarily dismiss him. In relation to the allegation of involvement of anomalies, the conclusion was that he had dumped a pallet of cigarettes and as a result there had been a breach of Customs & Excise laws. In relation to the alleged failure to follow company procedures, it was clear that he had failed to follow the internal audit process by not conducting physical checks. In relation to the charge of suspicion of theft or gross negligence resulting in stock losses, Mr Irons concluded that he could not prove theft but that gross negligence was apparent. The decision was confirmed in a letter dated 10 September 2015. The claimant was advised of his right of appeal. It is clear from the terms of that letter that the decision related to the loss of just over £40,000.00 in relation to the pallet of cigarettes. The additional stock losses of over £100,000.00 did not form part of that decision.

 

57. On 15 September 2015 the claimant appealed against the decision. He argued that Mr Irons had in some way merged the disciplinary process and the investigatory process by conducting his own enquiries. He stated that he had been unfairly suspended at an early stage. He stated he had been denied an adequate opportunity to consider documentation. He stated that the HR representative had overstepped the mark and had intervened too much. He stated that evidence he had provided had been omitted from consideration. He raised the question of representation at the reconvened disciplinary meeting. He stated that he had felt pressurised into attending that meeting without representation. He raised several matters which he queried in relation to the process. He denied theft. He stated there were mitigating circumstances and a lack of training. He denied negligence.

 

58. On 30 September 2015, the claimant was invited to an appeal meeting on 7 October 2015. That was to be conducted by Mr Martin Rowe who was the general manager for the respondent in the Southern England area.

 

59. At that appeal meeting the claimant was again represented by Mr Alistair Donaghy. The hearing commenced at 11.04 and continued through to 12.50. It was re-commenced at 13.15 and proceeded for a further short period. The claimant was afforded a full opportunity to raise every matter that he wished to raise and the matter was conducted as a full re-hearing.

 

60. The appeal hearing was to be reconvened. The purpose of that reconvened meeting was to provide the outcome of the appeal which would then be confirmed in writing. Following an exchange of correspondence it was not possible to reconvene that appeal meeting.

 

61. On 4 December 2015, Mr Rowe wrote to the claimant advising him of the outcome of the appeal. He stated that he had conducted the appeal as a full re-hearing. He went through each of the appeal points listed in the claimant's five page letter of appeal.

 

62. In relation to the first appeal point that the disciplinary and the investigation stage had been wrongly merged, Mr Rowe felt, for some reason, that the investigation and the disciplinary process could have been more clearly defined. The tribunal does not understand the basis for that conclusion. It seems clear to this tribunal that both the investigation and the disciplinary process had been conducted properly and carefully. However, he did not uphold that point of appeal.

 

63. In relation to the appeal point that he had been unfairly suspended at an early stage, Mr Rowe concluded that it was entirely reasonable to suspend the claimant in these circumstances and did not uphold that point of appeal.

 

64. In relation to the appeal point that the claimant had had an inadequate opportunity to consider documentation, he concluded that this had not been raised during the investigation or disciplinary process. There had been no request for additional time. The matter had, in any event, been completely re-heard in the appeal process and he did not uphold that point of appeal.

 

65. In relation to the appeal point that the HR representative had overstepped the mark, he did not uphold that point of appeal. Having reviewed the notes, he found no evidence to substantiate it.

 

66. In relation to the appeal point that Mr Irons had acted as both investigator and disciplinary manager, that is a matter which had already been dealt with. In relation to the appeal point that new evidence had been produced without allowing the claimant a chance to properly consider such material, that was rejected by Mr Rowe. Information had been provided properly and, in any event, the matter had been subject to a re-hearing on appeal.

 

67. In relation to the appeal point that a series of questions had not received a response, those matters related to incidents some time previously and were not supported by proper detail or corrobative evidence.

 

68. In relation to the appeal point that the reconvened disciplinary meeting on 4 September 2015 had proceeded even though the claimant's representative had been unable to attend, Mr Rowe pointed out that a postponement could have been requested by the claimant and it had not been requested. He stated that this could have been handled better and apologised for this. In the context where a failure to proceed with a reconvened disciplinary meeting would have resulted in a three week delay at least and where the claimant had not asked for a postponement and had not objected to taking part in the reconvened disciplinary hearing, the tribunal does not feel that the respondent could properly be criticised for proceeding with the reconvened hearing.

 

69. In relation to the appeal point that only some staff were interviewed during the investigation process, Mr Rowe stated that the staff interviewed were those employees that were on shift at the time the investigator was on site. He stated that it would not have been reasonable for a wider group of employees to have been interviewed and if they had been it would have made no difference to the outcome.

 

70. In relation to the appeal point that three people were interviewed within a 13 minute period, Mr Rowe simply referred to his comments in relation to the earlier ground of appeal.

 

71. In relation to the appeal point that three witness statements had no initials, Mr Rowe pointed out that having read the statements it would have been possible to discern who was writing the statement.

 

72. In relation to the appeal point that Mr Irons had spoken to Mr Lynas and had mentioned problems with processes, procedures and training, Mr Rowe stated that the information provided did not suggest any valid mitigation.

 

73. In relation to the appeal point that documentation had been produced in relation to ' extractions' and internal audit reports that had not been considered, Mr Rowe pointed out that the documents had been provided and had been referred to again on 4 September 2015.

 

74. In relation to the appeal point that an initial reference had been made to 20 ' extractions' and documentation produced in relation to only eight such extractions, Mr Rowe pointed out that the ' extractions' were only briefly referred to in the course of the meeting on 4 September 2015 and did not form a key part of the final decision reached. The point of appeal was not upheld.

 

75. In relation to two appeal points alleging that previous incidents had not been properly investigated, Mr Rowe stated that these matters referred to incidents some time previously and sufficient material had not been produced to enable an investigation.

 

76. In relation to the appeal point that there were wide scale breaches of procedure and items unaccounted for and the claimant had in effect been singled out when other matters had been ignored, Mr Rowe stated that the other incidents raised by the claimant were over a two year period and it would be difficult to establish the facts at this stage. On that basis, they could not properly ignore one wrongdoing (the loss of the cigarettes) because the respondent had allegedly failed to properly address others.

 

77. In relation to the appeal point that the investigation was flawed and that procedure not adhered to, Mr Rowe stated that it was a clear investigation and that Mr Irons had been appointed as the disciplinary manager responsible for making the decision. He stated that he felt the matter would have been handled better but having considered all matters after a complete re-hearing he concluded that a fair and reasonable decision had been reached. Again the tribunal does not understand Mr Rowe's apparent conclusion that there had been a procedural error in making further enquiries during the disciplinary process. However, in any event, the appeal point was dismissed.

 

78. In relation to an amalgamation of appeal points suggesting that there had been an inadequate explanation and mitigating circumstances and no proper investigation, Mr Rowe stated that during the course of the investigation and the disciplinary hearing the claimant had confirmed that he had been responsible for the disposal of the cigarettes and that he had failed to make appropriate checks at the time of disposal. The claimant had been aware of licensing & excise laws and of the audit process. There had been a clear breach of such procedures.

 

79. In summary, Mr Rowe found that cigarettes to the value of £40,877.24 had been disposed of, and that the claimant admitted that he had been responsible for this disposal. The claimant had failed to follow the correct procedure. The claimant had also contradicted himself initially indicating that he had inspected the cigarettes on 26 June 2015 and subsequently stating that they had been disposed of some time after 24 January 2015.

 

80. His conclusion was:-

 

"(i) You were clearly involved in the delist anomalies and having confirmed your understanding of the procedures still flagrantly breached them. You have failed to provide any reason why this was the case. This was an appalling failure on your part in relation to your job duties, particularly bearing in mind how experienced you are. This went far beyond mere poor performance. I therefore consider that it was such a serious failure such as to constitute an act of gross negligence, thus acting as a gross misconduct offence justifying summary dismissal.

 

(ii) The manner in which the delist cigarettes were disposed of is a clear breach of licensing and excise law. Again, you were able to explain the correct procedure for disposal of such stock and yet had failed to comply with the standard, in the absence of any reason for this failure.

 

(iii) Incorrect application of the PI (Internal Audit) procedure resulted in further significant stock losses but again you have failed to supply a reason for this ongoing procedural breach when you were clearly aware of the correct procedure.

 

(iv) Having reviewed the investigation and disciplinary processes I accept there are clear areas of improvement in this application. However, notwithstanding this, I believe your actions on their own (irrespective of (v) and (vi) below) constituted gross negligence/gross misconduct and as such the correct application of our disciplinary procedures would have made no difference to the outcome, being summary dismissal.

 

(v) For the reasons explained above, I consider that you were also likely to have been involved in the theft of the stock. This clearly constitutes an act of gross misconduct, but if I'm incorrect about this, you clearly committed an act of gross negligence as outlined above.

 

(vi) In addition, having reviewed this process from start to finish, your demeanour and responses during the investigation and disciplinary process were evasive and inconsistent. I therefore, in any event, have lost all trust and confidence in you as an employee of ours and do not consider that it would be appropriate for you to continue in our employment even if you had not committed an act of gross misconduct."

 

81. The appeal was therefore dismissed.

 

82. On 3 December 2015 the claimant lodged unfair dismissal proceedings.

 

Decision

 

83. The first issue for the tribunal to determine is the reason for the dismissal. In this case it is clear that the reason for the dismissal was misconduct, a potentially fair reason for the purposes of the 1996 Order. The suspension of the claimant and the subsequent investigation and disciplinary process started only when the loss of the cigarettes was discovered, and it is clear that no other reason existed for the dismissal.

 

84. The next issue to be determined by the tribunal, is whether or not the respondent believed in the fact of the misconduct. It is clear that Mr Irons and Mr Rowe both believed that there was a suspicion of theft and, at best, gross negligence in these circumstances. Mr Irons stated that:-

 

"At worst, due to the lack of plausible or logical explanation, your contradictions in your statements and, in our opinion, the flaws in your explanations we have reason to believe that your actions are tantamount to the potential theft of that product."

 

 

Mr Rowe stated that:-

 

"I consider that your were also likely to have been involved in the theft of the stock."

 

Mr Irons and Mr Rowe both also clearly believed that the claimant had significantly breached procedures in failing to conduct proper stock audit checks by physically checking stock in the warehouse and also by, on his own version of events, dumping the cigarettes valued in excess of £40,000.00 in a skip without checking the contents of the pallet first. Both also believed that licensing and excise laws had been breached.

 

85. The next issue to be considered by the tribunal is whether the respondent had reasonable grounds upon which to hold such beliefs. The tribunal considers that a reasonable employer was clearly entitled to hold those beliefs. The evidence of the claimant that the cigarettes had, either as a matter of assumption or as a definite fact, been disposed by him by putting them in a skip, either at some time after the end of January 2015 or during February or March 2015, could not be reconciled with his assertion that he had inspected the pallet of cigarettes on 26 June 2015. He did not argue during the course of the investigatory process or during the disciplinary process that this was a small pallet or a partly-filled pallet which had been disposed of at the same time as several other pallets. He accepted in the course of the investigation meeting that it had been a ' good sized' or a ' large' pallet. The respondent had conducted a re-construction with a standard size pallet and while they had been able to insert such a pallet into the skip, with some difficulty, the skip could not be closed. The evidence was also clear from several different witnesses and from the claimant himself that he had not followed common sense procedures in physically checking stock and then reconciling with the computer record. Given his particular position, as shift leader in the bonded warehouse with effective control of that warehouse, that was a serious matter and something that the respondent was entitled to view with some concern. Similarly, the answers and attitude of the claimant throughout the investigation, disciplinary and appeal processes were evasive and formed a proper basis for the respondent's conclusions.

 

86. The third matter for the tribunal to determine is whether the penalty was a proportionate penalty in all the circumstances of the case. Given the claimant's relatively lengthy service and his particular position, the tribunal concludes that this was a proportionate penalty. Even if the claimant's evidence had been accepted in full by the respondent, the claimant had still committed an act of gross negligence in disposing of the pallet of cigarettes without checking what he was putting in the skip. His failure to follow common sense procedures in relation to the internal audit process also contributed to the reasonableness of that penalty. The claimant's position in all of this has been that the respondent had not been entitled to dismiss him in these circumstances. It was all the fault of the respondent. The respondent had given him too much work to do and had not trained him adequately. When challenged, the claimant was unable to explain what additional training would have assisted in these circumstances or what additional training would have enabled him to take 30 seconds to check the contents of the pallet before tipping it into the skip. Given that the evidence before the respondent was that the claimant had received initial training in the system from the Dublin bond manager and that he had indeed trained others in the system, and had never asked for further training for himself, his attempt to fix the blame on others is not credible. The respondent was entitled to reach the conclusions that it did and to impose the penalty of summary dismissal.

 

87. The claimant's arguments that there had been serious breaches in procedure in this matter are not upheld. The argument that the respondent had wrongly investigated matters further at the disciplinary stage is not upheld. As indicated above, any employer in these circumstances is entitled, and indeed obliged, to consider all points made in the course of the disciplinary process and, if necessary, to conduct any further investigations and, if necessary, to further interview anyone that the disciplinary officer feels he should interview.

 

88. The claimant further alleged that when Mr Irons had met all his staff as a group after interviewing them individually it was in some way wrong. The tribunal does not agree. Even if it were correct that such a group meeting of staff would inevitably have lead to an inference that the claimant had been suspended because of suspicion of misconduct, that is not something which can influence the fairness or unfairness of the dismissal. In any event, a visiting general manager meeting all staff in a general group meeting does not seem to the tribunal to be particularly unusual or particularly significant.

 

89. Again, the arguments about an alleged lack of training are simply not credible. The claimant had been trained in the internal audit process. Even if he had not been trained in that process, any individual, particularly an individual of his experience, would have realised the importance of physically checking stock and then reconciling that with the computer records. In any event, the claimant also had trained others in the internal audit process and had never suggested to his own management that he had been inadequately trained or that he had required further training himself. He also demonstrated, on some occasions, his ability to physically check stock. He simply choose not to do so on other occasions.

 

90. The allegation of theft had been put to him at the second disciplinary hearing and he had a full and proper opportunity to respond. While he was not represented during that second disciplinary hearing, that was essentially his own choice. He did not ask for a postponement or object to the second meeting.

 

There was no breach of the statutory dismissal procedures and no significant procedural error. In any event, there had been a full re-hearing on appeal.

 

91. The claimant sought to argue that there had been mitigating circumstances. He had a clear record and significant service. Both those matters were taken into account by the respondent. However, the circumstances of this misconduct, whether the claimant's version of events is accepted or whether the respondent's reasonable suspicions were accepted, were such that a clear record and significant service did not alter the entitlement of a reasonable employer to summarily dismiss the claimant. In short, if a reasonable employer is not entitled to dismiss in these circumstances, he is never entitled to dismiss.

 

92. The claim of unfair dismissal is therefore dismissed.

 

 

 

 

 

Vice President

 

Date and place of hearing: 19 - 20 April 2016, Belfast

 

Date decision recorded in register and issued to parties: