At the Tribunal | |
Before
HIS HONOUR JUDGE H WILSON
MR D J HODGKINS CB
MR N D WILLIS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | Mr S A G Hall (In person) |
JUDGE WILSON:
"It is not for any Tribunal to seek proof of who misappropriated the missing £1,000 but only to determine whether or not Mr Carroll had a genuine belief that Mr Hall had been responsible for the deficiency. We find that such evidence was sufficient to justify his belief at that stage.
We then went on to ask whether the investigation carried out was a reasonable one in all the circumstances".
"The respondents by 5 October had ample evidence of a possible offence of gross misconduct which clearly required the disciplinary hearing. However, Mr Hall left that day, not to return to work and submitted a medical certificate the following day that he was off sick with stress for 2 weeks. He subsequently informed the Respondents that he would not attend any disciplinary hearing until he was signed back and fit for work. The Respondents wishing to bring the matter to a conclusion sought the opinion of their own Occupational Health Adviser, who, after speaking with Mr Hall, advised the Respondents that he was fit to attend the disciplinary hearing which the Respondents fixed for 16 December. The Respondents were informed by Mr Hall's Union representative, Mr Morton, that he could not attend and asked for the case to be postponed until Mr Hall's GP had produced a medical report, but the Respondents refused and wrote to Mr Hall stating that the hearing would proceed and would be held in his absence should he not attend. Mr Hall contends that he was told by Mr Morton that the Respondents had agreed that the hearing could not take place in his absence and had they given that assurance and then proceeded with a disciplinary hearing, this would have made the procedure fundamentally flawed. However, we are satisfied that no such assurance was given by the Respondents. The Discipline Code allows hearings to be held in an employee's absence and had they agreed, it would certainly have been confirmed by letter, but no such letter exists. Mr Morton's statement was produced by Mr Hall and although it records the contents of a telephone conversations between himself and the Respondents, it makes no reference to the Respondents, in the name of Ms McCutcheon, agreeing not to proceed with the disciplinary hearing on 16 December. Mr Morton however made it clear that he would not attend in the absence of Mr Hall. Although by this time, Mr Hall had seen his own GP, neither he or Mr Morton made any attempt to obtain a report from him for submission to the Respondents. Whilst it is preferable for an employee to be present or represented at a disciplinary hearing, it is difficult to see what else the Respondents could have done with the refusal to attend both by Mr Hall and his Union Representatives to proceed with the matter in the belief that Mr Hall was fit to attend the meeting and without any evidence to the contrary from Mr Hall's GP. They could not allow a situation to continue where Mr Hall decided when he was willing to attend the meeting".
"We then asked ourselves one further question; was the decision to dismiss that of a fair and reasonable employer? We find the decision falls within the band of reasonable responses of a fair employer and therefore the application is dismissed".