United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr John R Orme (Of Counsel) Instructed by: Messrs Desmond Pye Solicitors 256 New Cross Road London SE14 5PL


 


JUDGE WILSON:

1. This is the preliminary hearing of the proposed appeal by the Appellant against the decision of the Employment Tribunal that she had been unfairly dismissed but that it was just and equitable to reduce by 100% both the basic and compensatory awards. So far as the latter was concerned, the Tribunal's additional finding in the alternative that this was a case where, had the respondents acted in a procedurally fair way, the outcome would have still been the same if the Polkey test was applied, is also appealed.
2. Mr Orme on behalf of the appellant today has submitted that it was perverse for the Tribunal to say that the contribution to her own misfortune was 100%. That was too much. He submitted that what she did was not gross misconduct and he submitted that she was deprived of her chance to keep her job. It was perverse therefore to say that there was no chance she might have kept it.
3. We have had regard to those submissions against the background of the facts which were not in dispute. In her application the appellant alleged unfair dismissal from her employment as administrator/company secretary and says that she was tardily informed of a series of allegations which were inaccurate and untrue. The respondent said that the appellant had been guilty of gross misconduct and set out a series of what they described as grave mistakes of a professional nature, which resulted in serious financial muddles and compromised the respondent's reputation with the bank.
4. The Employment Tribunal decided at the end of a four day hearing, that the appellant had been unfairly dismissed but that her own conduct before dismissal caused it and made it just and equitable to reduce by 100% any awards she might otherwise have received. They said in terms that they did not believe the appellant where she was in dispute with what the other witnesses had said.
5. Paragraph 5(a) of the decision which runs to 12 pages of A4 typescript states that the appellant had started work in 1994 and her duties

"included responsibility for the management of the respondent's finances including, the maintenance of records relating to pay, and the issue of salary cheques".

6. Until 1996, in the opinion of her designated supervisor, the appellant performed her job competently, introducing new working practices and administrative procedures and computerising the accounts system.
7. Over the years 1996 and 1997 the respondent underwent a financial crisis through lack of funding as a result of which at one stage staff salaries and hours were cut by 20%. There were cash flow problems; there were large differences in projected and actual budgets; wage cheques bounced; there were financial problems with suppliers who were kept waiting for their money; and between 1996 and 1997 a number of written and oral complaints were made by members of staff about the appellant.
8. Matters came to a head and the facts found are summarised in Paragraph 9 of the decision. The Tribunal concluded on the balance of probability that the misconduct of which the respondent had believed the appellant to be guilty, had in fact occurred. The facts found were in accordance with those described by Mr Ferrigno in his report, subject only to some minor differences on matters of comparatively minor import.
9. Of the important facts one of them in relation to the salary standing orders was that the appellant had not repaid the overpayment made to herself. In her evidence to the Tribunal the appellant said that she had repaid the overpayment by paying for the food and drink and other items needed at the Respondent's 1996 Christmas show. She said that on the 17 December 1996 she paid by several personal cheques the sum of £409.16 for food and drink bought from Booker Cash N Carry at Greenwich. She also said that she could not prove the payment because she had mislaid her chequebook for the relevant period. This version of events was plainly not true. The Employment Tribunal later inspected copies of the respondent's bank accounts which showed clearly that the payment of the £409.16 was made out of their account.
10. As to the unbanked money in the bag and tin, the appellant's explanations for not banking the money was in essence the number of IOU's and the fact that the money was incomplete. This was an explanation which the Employment Tribunal found unconvincing not least because, as the appellant herself accepted, the fact that some money was still outstanding simply did not prevent the rest from being banked. She also failed to give any convincing explanation to the failure to bank the cheques which had been found.
11. Concerning the overpayment to the Inland Revenue the Appellant said she wasn't aware of it, but accepted that there had been an overpayment and that she alone dealt with the Inland Revenue. As to the wages overpayments to herself, she accepted that the sum of £448.03 had been overpaid which she said was an error. She accepted that she had now repaid £1085.21, but said that she had done so because the Solicitors said she should. It did not occur to her to say that not all of it was owing because she was upset having been arrested by the Police. The Employment Tribunal rejected this explanation for having repaid the sum.
12. The Employment Tribunal was satisfied on the evidence that the appellant had removed the documents on the 12 August 1997 although they were unable to make any finding as to the nature of the documents taken. They found as a fact that the appellant had refused to supply the payroll system password. They accepted Mr Holloway's evidence that the appellant did not qualify her refusal or give any reason for it, and rejected the appellant's evidence that she said she "would not give the password over the phone".
13. Paragraph 10 of the decision continues;

"The Tribunal was of the opinion that on the facts as found, the Applicant's dismissal was wholly caused by her misconduct when taken together with her decision not to attend or to be represented at the disciplinary hearing on 9 September 1997, the hearing which had led to her dismissal".

14. Those are findings of fact behind which this tribunal is not entitled to go, and Mr Orme does not invite us to go behind them. What he says however is that, even on those facts, it is not just and equitable but perverse for the Tribunal to say that the awards should be reduced by 100%. It seems to us that that is equally a matter for the Employment Tribunal's discretion. In order for Mr Orme to succeed, he has to show that it was perverse for a Tribunal to find 100% contribution on the facts which they had found proved, because no reasonable Tribunal, properly directing itself, could reach such a conclusion.
15. We find that he fails in that submission. It may well be that another Tribunal would have made a lesser finding of contribution but that is not a matter about which we can speculate. It seems to us that the conclusions reached by this Tribunal were conclusions which a reasonable tribunal properly directing itself was entitled to reach. Accordingly the appeal has no hope of success and should be dismissed forthwith.