Ritchie & Anor v Associated Co-Operative Creameries & Anor  (Unfair Dismissal )  (3 February 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	01099/00
01100/00

APPLICANTS:	Paul Ritchie
			Brian Wilson

RESPONDENTS:	1. Associated Co-operative Creameries 
			2.  Co-Operative Wholesale Society Ltd

DECISION
It is the unanimous decision of the tribunal that these applicants were not unfairly dismissed.   

Appearances:
The applicant was represented by Mr P Foster, Barrister-at-Law, instructed by Fearon & McCoy, Solicitors.
The respondent was represented by Mr A Montgomery, Barrister-at-Law, instructed by John McKee and Sons, Solicitors. 

The tribunal has given this decision in extended form as due to the nature and extent of the evidence given it considers the decision in summary form would be insufficient to explain its reasoning to the parties.

In reaching its decision the tribunal preferred the evidence of the witnesses for the respondent as being more convincing than the evidence given by the applicants in this case.  The tribunal found the following facts.

1.	Both applicants were employed by the first respondent which is a wholly owned subsidiary of the second respondent.  

2.	Both applicants were dismissed for gross misconduct which arose in and around irregularities in the management of the security of the site of the first respondent at Carrickfergus in Northern Ireland.  At the time in question the first applicant was a supervisor and the second applicant was a chargehand.  Both applicants had responsibility for security on the site when they were in attendance.  

3.	There had been a background of complaints made to the first respondent about the first applicant.  These were not investigated by the first respondent as the complaints were regarded as being without merit.  However, in or around 11th February 2000 the site manager, Mr Leader, received a number of complaints regarding removal of white pallets from the site from other employees of the respondent at the Carrickfergus site.  Mr Leader reported this to his line manager and Mr Brown conducted an investigation.  Mr Brown gave evidence to the tribunal that he conducted an investigation from 25th February 2000 to 6th March 2000.  He reviewed the statements that had been made to Mr Leader; he viewed the video tapes of the site for two weekends; he examined the logbooks for the site and he spoke to the applicants and gave them an opportunity to explain their actions.  He found that there were unexplained discrepancies over the completion of the log book and that the video tapes which were supposed to provide a security record of the site were switched off for periods substantially in excess of what would have been required for the simple changing of the tapes on a daily basis.  When he interviewed Mr Ritchie, the first applicant, the tribunal has noted that Mr Ritchie was the only person to deny that a lorry which was unauthorised had come on the site to remove the pallets.  The tribunal also noted in the course of his discussions with Mr Brown, Mr Ritchie changed his story several times.  The tribunal has also noted the perspective with which Mr Brown approached Mr Ritchie.  This was not a case of a manager who came with a preconceived notion.  In fact quite the reverse was the case.  Mr Brown made it clear that he felt that Mr Ritchie (before he started to interview him) had had a future with the company.  He felt respect for Mr Ritchie.  By the end of the interview, his view had changed and he considered that he could not believe a word Mr Ritchie said.  

(i)	The tribunal has further noted that in evidence of both applicants there were matters raised that were not put to the witnesses for the respondents, despite there being a full and detailed cross-examination by the applicant’s counsel and despite the fact that the tribunal allowed the applicant’s counsel an opportunity to check with the applicants to see if there were any outstanding matters that had not been put prior to release of both these witnesses.  

(ii)	In the course of the investigations, the tribunal has noted that there was no satisfactory explanation given regarding the log book inaccuracies and the taping over of the video for Sunday 20th February on Tuesday 22nd February 2000.  The tribunal has noted that a number of items came out in the evidence of both applicants that were not put to the respondents’ witnesses in cross-examination.  The tribunal considers that it is more likely on the balance of probabilities that if these matters were really matters that the applicants wished to advance on their behalf, they would have done so in the course of their investigatory discussions with Mr Brown and indeed with the other officers of the respondents who dealt with the subsequent stages of the disciplinary and appeal processes.

(iii)	The tribunal has further noted that there was a plethora of explanations advanced by the first applicant regarding the pallet removal from the site in question.  

(iv)	In relation to the evidence of the second applicant, the tribunal has noted specifically the detailed explanation given in this applicant's evidence concerning the first occasion upon which there was a discrepancy with the videotapes.  The second applicant contended that he had been called away to deal with an urgent matter concerning a lorry that had not taken a pallet of food for transport to Scotland.  This was a matter of such gravity, that this applicant contended strongly that he had taken stringent efforts to rectify the situation.  If this was really the case, the tribunal considers on the balance of probabilities that this would have been put to the witnesses for the respondents in cross-examination, and that it was not, suggests that it was not put to the officers of the respondent companies who were involved in the investigation, the disciplinary process and the appeal process.  Surely on the balance of probabilities, the proximity in time to this happening in February 2000 to the investigatory and disciplinary process on 6th March 2000, would have left this incident fresh in the memory of this particular applicant.

4.	The case of British Home Stores –v- Burchell [1978] IRLR 379 gives guidance to employers seeking to dismiss employees in cases in which dishonesty is involved.  Firstly the employer must establish the fact that a belief was held and secondly that there were reasonable grounds to sustain the belief in the guilt of the employee and thirdly as much investigation as was reasonable in all the circumstances of the case was carried out by the employer.  In this case the tribunal finds that the respondents have satisfied the Burchell tests.  The tribunal is satisfied that the respondents held a genuine belief in the guilt of the respondents.  The tribunal has already indicated that it prefers the evidence of Mr Brown and Mr Hanratty to that of the applicants.  In reaching this assessment of the genuineness of the belief, the tribunal specifically notes the frame of mind with which Mr Brown approached the evidence of Mr Ritchie.  If anything, he was reluctant to find him guilty.  He believed that Mr Ritchie had a future with the respondent company and was disappointed to find out that that was not the case.  There were statements made by a number of witnesses (which had been anonymised by a prior Order of the tribunal) and these were supplemented by a number of oral statements made by employees to the respondents in the course of the investigation.  There was a detailed examination of the video tapes and this showed on both occasions examined that Mr Wilson walked down the corridor, entered the machine room, switched off the machine and left it switched off for an unaccounted for length of time.  The explanation given for one of the delays concerned the tracking of a lorry.  The tribunal has already commented on this explanation not being given to Mr Brown, and considers it more likely than not on the balance of probabilities that if it was really operative in the mind of the applicant giving it, it would have been advanced in the investigation.  The tribunal also noted examples of discrepancies in the log.  On one occasion Mr Ritchie had signed the log for a day in which he was not even on the site.  For all these reasons the tribunal considers that the respondents had reasonable grounds for believing that the applicants were guilty of gross misconduct.  

5.	The tribunal also considers that the investigation carried out was satisfactory in all the circumstances.  Statements were taken:  Mr Brown came over from Scotland and carried out a very detailed investigation and in the course of this spoke to both the applicants.  He reviewed the videotapes and the log.  No satisfactory explanation was given to explain the discrepancies in the records.  This is not a case which rests, in the view of the tribunal, on inference alone.  There was more material before the investigating, disciplinary and appeal panels than mere inference.  There were various criticisms made of the investigation.  It is easy to criticise an investigation when points have not been raised.  Once again the tribunal noted in the evidence of Mr Ritchie before the tribunal there was an allegation that he sent more than one fax evidencing return of pallets to Scotland.  Yet, once again this evidence had not been put to Mr Brown or Mr Hanratty before they were released from the tribunal hearing.  It was also suggested of Mr Ritchie that there was an innocent explanation for removal of pallets.  That is to say that a pallet recovery service had been put in place by Mr Leader.  Again this was not put in evidence, and we consider it more likely than not that if this was really operative in the minds of the applicants, it would have been put in cross-examination and indeed put to the officers of the company in the investigation, disciplinary and appeal processes.  The tribunal did notice that there was some difficulty in establishing the exact extent of the loss of pallet and products alleged by the company.  However, this goes to extent rather than nature of the issue and, the tribunal is satisfied that some pallets and products were lost and does not consider that it is necessary for it to make a finding on the exact extent and monetary value of the loss suffered by the respondents.

6.	The only point on procedural issues made by Mr Foster was a suggestion was that the time of the investigatory and disciplinary hearings was very short.  While this may or may not be the case, it is settled law that inadequacies in a system can be cured by a fair appeal.  In this case there were two appeals, against which no objection was taken and we do not find that this alleged irregularity would be sufficient to render the decision reached by the disciplinary panel unfair.

7.	Costs had been reserved from a previous hearing at which Mr Brown was not present.  Mr Brown was not present due to ill health and, having now heard the evidence of Mr Brown the tribunal is satisfied that he was a central witness for the respondents without which they could not have proceeded to present their case properly to the tribunal.  Accordingly, the tribunal is not awarding costs on this occasion.

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Date and place of hearing:  18th December 2001 

Date decision recorded in register and issued to parties:  3 February 2002