THE INDUSTRIAL TRIBUNALS

CASE REF:  03750/99UD; 03751/99BC

CLAIMANT: 			Alison Ince

RESPONDENT:		East Antrim Institute of Further and Higher Education

DECISION ON REVIEW

The tribunal concludes that it should review its Decision of 3 August 2005 on reinstatement and re-engagement. 

The tribunal confirms the terms of its Decision in regard to reinstatement.  However the tribunal varies the terms of its Decision on re-engagement and orders the respondent to re-engage the claimant on the terms set out in the schedule annexed hereto. 

In default of re-engagement (and the tribunal is conscious of the respondent's declared unwillingness to reinstate or re-engage the claimant, and the reasons therefore), the tribunal orders the respondent to pay the claimant compensation of £104,315 as set out in the table in the Decision below.

The tribunal dismisses the claimant's application to amend her application to include a claim under the Public Interest Disclosure (Northern Ireland) Order 1998 on grounds of lack of jurisdiction (the Order not having come into effect until 31st October 1999, four and a half months after her dismissal).  The tribunal in addition concludes that the claimant had never made what could be considered a qualifying protected disclosure prior to her dismissal by the Institute.

Constitution of Tribunal

Chairman:		Mr Eamonn McArdle

Members:		Mr Albert Jackson
Mr Brian Orr

Appearances

The claimant represented herself.

The respondent was represented by Ms Anne Finegan, of Counsel, instructed by Mr Peter O'Rawe of the South Eastern Education and Library Board’s Legal Services.

The claim and the defence

1.	This was an Unfair Dismissal claim in which liability had been conceded by the respondent.  Remedy was the main issue.  An outline of the previous history of the proceedings is set out in Appendix 1 to this Decision. 

The claimant claimed reinstatement.

The respondent claimed that although the claimant's dismissal had been unfair on procedural grounds the claimant had been wholly or in large part to blame for her dismissal by reason of her contributory conduct.  The respondent maintained that this, in addition to considerations of practicability, ought to bar the claimant from the relief she sought, reinstatement or re-engagement.

The claimant maintained that a proper consideration of the circumstances of her dismissal would establish that there was little or no contributory fault on her part; that such as there was could be explained by reason of the harassment and bullying to which she was subjected by her line management; and that the respondent's real, undeclared reason for dismissing her was to punish her for having disclosed fraudulent malpractice on the part of her line manager to the respondent's Director.

Sources of evidence

2.	The tribunal heard evidence for the respondent from Mr John Blaney, Mr Allen Hall, Mrs Sylvia Gourley and Mr Sean McAleese.  The tribunal also heard evidence from the claimant, from Ms Patricia Lindsay, Mr David Lisk, Mr Ansley Magee, Mr Derek Martin, Mr Tom Dominic Hayes, Ms Loraine Fergie and Mr Andrew Marshall.  Mrs Gourley and Mr McAleese were both recalled at the claimant's request to permit additional cross-examination by the claimant.  Other witnesses were subpoenaed but were not, in the end, called to give evidence.

In addition the tribunal was referred to four bundles of documents, two each from the claimant and respondent.

The issues

3.	The main issue for the tribunal was the claimant's alleged contributory fault.  The tribunal was directed to the history of disciplinary action against the claimant culminating in her dismissal and the rejection of her first stage appeal against dismissal.  That remained a principal focus for the tribunal throughout the course of a lengthy hearing.  As part of its effort to determine the extent of any alleged contributory fault, however, the tribunal was asked to consider the claimant's allegations of harassment and bullying of the claimant in the workplace and whether the course of disciplinary action taken against her amounted to a form of victimisation for disclosures she claimed she made about the alleged fraudulent activity of one of her line managers. 

Analysis of the evidence

4.	On careful consideration of the witness and documentary evidence the tribunal unanimously rejected the claimant's claim that her treatment by the Institute amounted to victimisation by reason that the claimant had reported to the respondent's Director that her line manager was committing fraud in the way he maintained the respondent's records. 

The tribunal was satisfied, on the other hand, that the claimant had been subjected to oppressive and unfair treatment at work, amounting at times to harassment and bullying.  Moreover the tribunal concluded that the disciplinary proceedings taken against her had been unfairly weighted against her, and in regard to the disciplinary charges leading to her dismissal, the indictment had been overloaded with contradictory and nonsensical allegations.  The injustice of the disciplinary allegations raised against the claimant was compounded at the stage of the internal disciplinary appeal by management's failure to disclose to the Board of Governors matters clearly relevant to the claimant's defence.

The tribunal was also satisfied that although the claimant had tried on at least two occasions to highlight her difficulties with line management to senior staff her representations were effectively ignored, and the experiences acted to discourage her from pursuing a formal grievance. 

The tribunal, notwithstanding these conclusions, considered that the claimant should not escape criticism.  Having worked more or less autonomously for a number of years, the claimant reacted badly to changes in the workplace driven by the expansion and reorganisation of the respondent's Jobskills operation.  Having been, understandably, disappointed in being passed over for the post of Jobskills Administrator in favour of a colleague (despite her protestations before tribunal to the contrary), she appears to have set out to show that he was the wrong choice and to undermine him in the role.  Even after agreeing a Fresh Start, in a variety of ways the claimant maintained a sullen resistance to the line manager's attempt to manage, from the game of cat and mouse she played with him over the monitoring of leave, to the blizzard of Memos she directed at him.  The claimant, in brief, could be an awkward employee, and was not easy to manage. 

The respondent, on the other hand, was in the driving seat.  It did little or nothing to address the problems highlighted by the claimant, from September 1997 onwards, by way of monitoring of her line manager(s), for example, and it made little attempt to provide her with support in respect of the areas of work in which she was perceived to be under-performing.  The evidence pointed, on the contrary, to her line manager making it harder for her to do her job properly.  As the disciplinary proceedings progressed, the claimant's health suffered, her behaviour became evasive and erratic, and she became less and less the agent of her predicament at work and more and more the victim of it.  At an early stage the respondent's line management appear simply to have lost interest in attempting to help the claimant address performance issues or in retaining the claimant in the department, and at the end of the summer of 1998 seized on a pretext that offered to be rid of her. 

The Tribunal found the following facts proven, on the balance of probability

5.1	The claimant commenced employment with Newtownabbey College in 1992, two years prior to its merger with Larne College to become the East Antrim Institute, and at the relevant times was engaged as an Employment Liaison Officer (ELO) based on the Newtownabbey campus until her dismissal for misconduct in June 1999. Thanks to previous service with the Education and Library Board the claimant had a total of 11 years continuous service with her employer at the time of her dismissal.

5.2	The role of ELO was to assist in arranging work placements for trainees enrolled in the college, to help monitor trainees once placed, to maintain trainee records and to deal with any welfare issues.  This had previously been the responsibility of tutors and the plan was that the ELO should relieve the tutors of the burden of this work.  In addition the claimant among other miscellaneous admin duties, had been charged with invoicing private sector training organisations for college tuition services.

5.3	Between 1992 and January 1996 the claimant was the sole ELO on the Newtownabbey campus.  A Ms Christine McFettridge carried out a similar role on the Larne campus.  The ELO clients were mainly young trainees on the Government-funded YTP programme.

5.4	The claimant's line manager during this period, and up until end-August 1997, was Mr Ansley Magee, the YTP Co-ordinator and Head of the Mechanical Engineering Department.  Mr Magee's line management role in relation to the claimant was a modest one, by his own account, limited to dealing with occasional queries she referred to him in the limited time he allocated to the role each week.  The claimant was largely self-managed.

5.5	As sole ELO at Newtownabbey the claimant had a free hand in liaising with the Training & Employment Agency (T&EA), tutors, trainees, their parents, employers and other organisations, paying visits to prospective employers, etc.  It is clear that she had considerable control over the organisation of her work and priorities, and the disposal of her working time.  She also devised her own systems of trainee records and additionally compiled an Employer Database.  She maintained the database on an Apple Mac computer on loan to her from the respondent's IT department.  By general consent she was very good at her job, highly regarded by the tutors she dealt with and popular with trainees.  She also enjoyed a good working relationship with Mr Magee who was content to let her get on with the job.

Jobskills

5.6	In 1994-5 the respondent Institute was awarded a new training contract, Jobskills, by the T&EA, which replaced YTP.  Jobskills was a training programme for the unemployed, enabling them to train for NVQs in their chosen vocational area.  It represented the prospect of a significant income stream for the respondent, some one and a half million pounds per year in the initial stages.  Retention of the contract would depend on the respondent satisfying the strict standards set for training providers by the T&EA.  As part of the shift from YTP to Jobskills the T&EA prescribed a variety of new procedures and associated paperwork that had to be adopted (for inducting trainees on to the scheme for example).  A major innovation was the requirement to use a T&EA supplied computerised program for record keeping (Trainee Information Management System, or TIMS).  Management standards in the administration of the scheme were required to comply with standards set out in quality management systems (JQMS, IIP), etc.  With the increase in trainee numbers anticipated and the increase in associated paperwork, record-keeping and the need for more placements the respondent prepared to expand its team of ELOs from 2 to 4.

5.7	The respondent re-organised its management structure in 1995. Mrs Sylvia Gourley was appointed Head of Training and Income Generation with an overall responsibility for the training centre, officially designated by the T&EA as a Recognised Training Organisation or RTO but referred to generally as the Jobskills department.  The department moved to a former caretaker's bungalow on the campus in Newtownabbey in late 1995.  Mr Magee in Newtownabbey and Mr Morton in Larne, Ms McFettridge's line manager, were renamed Campus Co-ordinators.

5.8	Although as Campus Co-ordinator he was still nominally the first tier manager of the RTO, Mr Magee (and many of his colleagues) viewed his change of title as a demotion from his former post as department head.  He was reinforced in this view when he twice received invitations in 1996 to consider voluntary redundancy, before being made compulsorily redundant in August 1997.  He sensed that decision making on important matters relating to Jobskills had passed to Mrs Gourley.  As evidence of this he was sidelined in relation to the appointment of two new ELOs in January 1996, Mr Sean McAleese and Mrs Pat Morrison.  Mr McAleese moved into the bungalow, to join the claimant, Mr Magee, the office supervisor, Mrs Lily Craig and clerical staff.  Mrs Morrison, after a brief spell at Larne, also moved into the bungalow.

5.9	Where, previously, the claimant filled the servicing role of ELO single handedly, reporting to Mr Magee, and with the assistance of the supervisor and clerical staff, there were now three ELOs, the claimant, Mrs Morrison and Mr McAleese.  Where, before, the claimant had overall responsibility for ELO work, Mrs Gourley at the start of 1996 divided the trainees up into different groups which she allocated to each of the ELOs according to vocational sector.  She also allocated areas of additional responsibility as between ELOs.  In particular she assigned to Mr McAleese the key role of invoicing employers for payments.  (At hearing it emerged that Mr McAleese had experience as a banking official.)  The claimant was evidently unhappy about this although she raised no objection at the time.  She was allocated special responsibility for maintaining an Employer Database.  From May-June 1997 onwards Mrs Gourley played a more visible day-to-day role in Jobskills, and in particular around the times of any T&EA audits.  All of this represented a sea change in the claimant's working environment.

5.10	Mrs Gourley insisted that she had had an arms-length relationship to the Jobskills department until the period leading up to the audit in June 1997, because the Director, Mr Bonar Hill, had advised her to concentrate on income generation.  On a regular basis she did, however, liaise with Mr McAleese in regard to employer contributions and invoice matters.  Mr McAleese would refer issues related to invoicing and administration directly to Mrs Gourley.  Mr Magee felt bypassed, one way or another, even though he had no special responsibility for employer contributions.  This practice of Mrs Gourley's, a second-tier manager, of coming into the Jobskills department on a regular basis and dealing directly with Mr McAleese on finance matters, may well have been one source of a perception that Mrs Gourley was favouring Mr McAleese.  Mrs Gourley would sometimes send messages to the other staff through him.  Most notably, at or around the time of an audit held in early 1997 when she expected to be in Glasgow for the day, Mrs Gourley actually nominated Mr McAleese as her deputy for the occasion.  In the event she did not go and Mr McAleese did not deputise, but the impression created was clear enough.  Whether by reason of their regular collaboration over finance matters or for other reasons, Mrs Gourley was creating the firm impression that Mr McAleese was the person with whom she preferred to do business in Jobskills.

Trainee Information Management System (TIMS)

5.11	A further factor appeared to strengthen Mr McAleese's profile in the department.  The T&EA software, the TIMS program, was the means by which the respondent and ultimately the T&EA kept track of the administration of the Jobskills scheme.  TIMS was used to integrate payroll information (for payments to trainees), trainee record data and data on employers and employer contributions to the cost of the scheme.  The TIMS program was accessible only on a PC, it was not accessible on an Apple Mac of the type used by the claimant.  It was placed on two PCs in the main office in the Jobskills bungalow, one used by Mrs Craig, the other by Mr McAleese.  Moreover, different levels of access to the data stored were possible.  To guard against the risk of corrupting the data Mr Magee ordained that Mrs Craig, the office supervisor until early 1997, should alone have top level access, allowing her to input, alter and access all of the data on trainees for payroll and claims purposes.  Mr McAleese, because of the importance of his role in invoicing employers, also had a higher level access to the TIMS data.  For these purposes he also had priority access to one of the PCs.  The remaining ELOs should have had third level access, sufficient for their needs to interrogate the data held on trainees.

5.12	All of the ELOs were provided with some introductory training in the use of TIMS.  An inquiry later carried out by the Director, Mr Bonar Hill, established that only two of the ELOs, Mr McAleese and the claimant, showed much interest in the use of the software.  From an early stage, however, the claimant was disadvantaged in relation to access and use of the TIMS software.  In part this was caused by objective constraints, the limited number of PCs, the absence of any networked arrangement between them, the priority accorded to Mr McAleese's work on invoicing, the incompatibility between TIMS and the Apple Mac.  For a period the claimant did not even have a password she could use to access one of the PCs, assuming that they were not in use by Mrs Craig or Mr McAleese.  Following representations from the claimant Mr Magee took steps to address these problems.  A hybrid PC/Mac was obtained for the claimant which permitted her access in principle.  However, in the absence of any network, the claimant (and Mr Magee, who was in a similar position himself) relied upon Mr McAleese's willingness to download updates on a regular basis of the master copy on Mrs Craig's PC onto a floppy disk and make it available to the claimant to transfer onto her hybrid.  It is clear that Mr McAleese failed to facilitate the claimant in this respect (he was hardly much more obliging for his Line Manager, Mr Magee) and that it was a source of continuing tension between them a long time in advance of the recruitment for the post of Jobskills Administrator in the autumn of 1997.  Mr McAleese obtained an edge over the other ELOs in the period up until then by virtue of the greater familiarity with the TIMS system that his role involved. In the period after he became Jobskills Administrator he misused his authority to continue unreasonably to frustrate the claimant's access to the TIMS software.

5.13	In a variety of other less immediately obvious ways Mr McAleese exerted a forceful presence within the Jobskills department.  A trainee assigned to the Jobskills office, in principle to provide a shared service to the ELOs, came under his influence in such a way that she functioned more as his secretary than as a support service for all the ELOs.  Two witnesses from different perspectives confirmed the growing influence he acquired in the Jobskills department.  Mr Magee stated that he believed Mr McAleese was being groomed as his replacement but felt helpless to raise the matter with either Mr McAleese or Mrs Gourley.  Because he felt he was on the way out he was reticent about challenging Mr McAleese or Mrs Gourley over such issues.  Mrs Fergie, acting office manager after Mrs Craig left, and assigned to Jobskills from May 1997 onwards to put in place new systems of filing and information management, to 'sort out the office' in compliance with the requirements of the T&EA, stated on the basis of her impressions on arriving in the office that Mr McAleese would be an obvious choice for the post of Administrator because he was effectively performing the role already.

5.14	It is unnecessary to accept all of the claimant's complaints against Mr McAleese to recognise that, in Mr Hall's understated terms, he was deficient in certain managerial skills, or interpersonal skills more generally.  Mr Magee, who was broadly sympathetic to the claimant, insisted that Mr McAleese had, contrary to the claimant's contentions, made a reasonable fist of his work as ELO.  Mr Magee, as his line manager until August 1997, was better placed than the claimant to make that judgment. Nevertheless Mr Magee admitted that Mr McAleese's relations with his ELO colleagues were often abrasive.  On at least one occasion he publicly belittled Ms McFettridge while she was on a visit to the Newtownabbey campus, causing her serious upset.  Mrs Fergie described him as dogmatic, and a bit schoolmasterly in his dealings with other staff.  Under pressure he was volatile, quickly agitated and ready to shout at colleagues or look for a scapegoat when something went wrong.  These accounts were consistent with both the documentary record of the disciplinary warning he received in January 1999 for shouting at and reprimanding a member of female staff, Ms Susan Lewis, in front of others in the Jobskills office, and with the claimant's account of his frequently raising his voice and adopting a hectoring and bullying tone in his dealings with her (and with other members of staff) after he became her line manager.  There was no evidence before tribunal to suggest that Mr McAleese had had the benefit of either managerial experience or management training. 

5.15	The respondent's management were unlikely to have been entirely ignorant of these aspects of Mr McAleese's performance at work.  Mr Magee remarked on his 'abrasive' relations with (mostly female) colleagues.  Ms McFettridge reported him after the incident cited in 1997 to her line manager who reported him in turn to Mrs Gourley, but without apparent result.  (It is possible to infer this from the fact that in January 1999, at the time he was issued a formal warning for an incident involving a public reprimand of a member of the clerical staff, despite a warning about a similar incident - of shouting at a junior member of staff - 3-4 months earlier, he had no disciplinary record.)  Subsequent to Mr McAleese's appointment as Administrator Mr Derek Martin, a longstanding tutor, who had worked for some time with both Mr McAleese and the claimant, felt obliged to intervene when Mr McAleese launched into a verbal attack on the claimant in or around December 1997, in order to defend the claimant and to berate Mr McAleese for his own shortcomings as ELO.  Mr Marshall, a trainee, witnessed a similar episode when Mr McAleese, coming into the Jobskills office and discovering a secretary printing off some documents from the TIMS system for the claimant who was present, demonstratively ordered her not to hand the documents over to the claimant.

T&EA Audits

5.16	As part of the process of ensuring that the Jobskills contract was being properly administered the T&EA made regular inspection visits to the respondent's premises.  These visits would be flagged up in advance and tended to concentrate on one aspect or another of the respondent's record keeping, management systems, performance against targets, and other areas of concern.  They would inspect, for example, Participating Partnership Agreements (PPAs), the placement contracts agreed between the respondent and employers, Start Forms, monitoring records or trainee time sheets.  In the first years of its operation of the Jobskills scheme it is clear that the respondent's management systems had not been up to the mark.  Mrs Gourley came under pressure from the T&EA from May 1997 onwards to take a more direct interest in the running of the Jobskills department and to improve its systems.  Mrs Fergie was put in place to introduce method and order to the office in readiness for the audits, in accordance with T&EA expectations.  Mrs Gourley issued a memo exhorting staff to present a positive face for the organisation in the course of these visits and to avoid using the occasions as an opportunity to moan.  The tribunal found little merit in the claimant's contention that this amounted to a 'gag' on free speech or an implicit instruction to staff to lie on behalf of the organisation.  A similar literal mindedness on the claimant's part led her likewise to accuse Mrs Fergie of being content to tell lies on Mr McAleese's behalf by telling telephone callers (on his instructions) that he was not available to take calls.  The tribunal attributed such criticisms to a lack of realism and want of practical judgment on the claimant's part, evident at a number of junctures in the course of hearing.

June 1997 Audit

5.17	An audit took place in June 1997.  One of the areas it focused on was the record of trainee timesheets for a fixed period over the preceding months.  The relevant regulations at that time permitted the submission of trainee timesheets up to a period of three months after they were actually due.  Nevertheless, account taken of this built-in flexibility, acknowledging the reality that some trainees would often not be at the training centre to hand in their timesheets for weeks on end (the case for example with block release trainees), it was clear to the management that sizeable numbers of timesheets were missing.  Mrs Fergie described a period of hectic activity in the lead up to the audit in an effort to gather in the missing forms.  Mr Magee said it was a time for 'all hands to the pump'.  He went out on the road along with other staff to chase up missing timesheets from trainees in scattered locations.  The claimant did likewise. Mrs Gourley and Mr McAleese worked in the Jobskills office attempting to assess the extent of the shortfall and assisting Mrs Fergie to arrange files and records in presentable order.

5.18	Mr Magee worked late in the office on the evening before the audit was due to take place but went home at some stage.  The claimant joined Mrs Gourley and Mr McAleese and the three worked throughout the night until the audit began the next morning, 24 June 1997.  They managed to compile lists of the missing timesheets.  As a result of their inspection the T&EA later 'clawed back' £13,577 from the respondent, doubtless a reflection of the T&EA's dissatisfaction with the state of affairs disclosed by their inspection of the timesheet records, and a measure of the disparities identified by the audit.  Following feedback from the T&EA the respondent was given a period of grace to improve its systems, according to Mrs Gourley.  In two subsequent years (1998 and 2001) the corresponding figures for claw back were £1,801 and £3,224, also in respect of missing/incomplete timesheets.  The evidence suggests that after getting off to a shaky start the respondent's administration was gradually coming to terms with and satisfying the standards of administration set down by the T&EA.  It does not bear out the claimant's claim that Jobskills was in a state of chaos by reason of incompetent management.

Allegations of Fraud

5.19	In 2002, some five years after the event, and three years after her dismissal, the claimant claimed that Mr McAleese had committed fraud in the preparation for the June 1997 audit by fabricating evidence to stand in place of missing timesheets, and applied pressure on her to fabricate evidence also in relation to missing timesheets.  He allegedly did so not so much from hope of immediate personal gain but out of fear for his job.  At hearing before tribunal, in her direct evidence, the claimant additionally alleged that Mrs Gourley had been a willing accomplice to this fraud, and she described a scene she said she witnessed in Jobskills at the time of the audit where Mrs Gourley was alleged to be holding a 'wand' from a bottle of correcting fluid and asking the clerical officer Ms Alison Webb, 'What date do we need on this one?'

5.20	There are a number of noteworthy matters in relation to these allegations.  First, despite obtaining a witness order for Ms Alison Webb and having had her attend the tribunal a number of times in expectation of being called to give evidence, the claimant elected not to call Ms Webb to give evidence, despite the potentially obvious critical support she might have been able to provide for the claimant's allegation against Mrs Gourley.  Second, despite having cross-examined Mrs Gourley twice, after the tribunal had acceded to her request to recall the witness, and despite the tribunal's repeated and detailed explanations of the obligation she was under to put the salient points of her case to the witness, the claimant conspicuously failed to put any such allegation to Mrs Gourley before making the allegation in her direct evidence.  She could have been under no misapprehension at this stage of the hearing as to the seriousness of the allegation and the weight that the tribunal would give to such an allegation introduced in this manner.  Third, the sole other witness to the audit (if we discount Mr McAleese who denied her allegations of fraud, and Mr Magee, who was unable to offer any supporting evidence) to appear before tribunal, was Mrs Fergie.  Mrs Fergie was in some respects at the centre of the office operation, co-ordinating the efforts of the staff in the compilation of the relevant documentation over a period of days in advance of the audit. Mrs Fergie's evidence was matter of fact: she had witnessed no irregularities.  Had there been such on the industrial scale the claimant implied was taking place it would quickly have come to the notice either of herself or of the clerical staff working for her.  And she was equally clear that as the office manager she would have had no hesitation in reporting it to an appropriate senior manager.  The tribunal found Mrs Fergie a particularly impressive witness.  She had pulled no punches in her account of Mr McAleese's relations with the claimant and with other staff.  Her evidence on this issue therefore carried substantial weight with the tribunal.

Investigations of allegations

5.21	At the outset of the hearing the tribunal noted that the claimant's allegations of fraud at the East Antrim Institute had been brought to the attention of a number of public authorities in the period 2002-2004.  Those allegations had been investigated by the Department for Employment and Learning which had referred its findings to the PSNI for further investigation.  The PSNI's Fraud Unit having conducted their own investigation concluded there was insufficient evidence to found a successful prosecution, or even to warrant a criminal investigation.  (Letter from Mr/Ms? Bernie O'Hare of DEL to Mr John Blaney, Director of the East Antrim Institute, 20 March 2006.)  The tribunal made clear that it did not regard Ms Ince's Unfair Dismissal remedies hearing as the appropriate vehicle to review or second-guess the findings of the departmental and police investigations into the allegations of fraud.  The tribunal was willing and entitled to consider such evidence as was placed before it only in so far as it assisted the tribunal to determine issues of contributory fault and to determine whether the disciplinary proceedings pursued against the claimant had as she alleged, been driven by a desire to punish her for her refusal to take part in an alleged fraud and her alleged decision to report the fraud to the Institute's Director.

Tribunal findings and conclusion on fraud allegations

5.22	On the basis of the witness and documentary evidence before it the tribunal concluded there were no grounds for finding that Mr McAleese and Mrs Gourley had engaged in any fraud of the kind alleged by the claimant at the time of the audit in 1997.  Mr Derek Martin's evidence on the other hand did point to Mr McAleese, at some later stage, between October and November 1997, asking him to sign 4 trainee timesheets that did not accurately reflect the trainees' attendance.  When Mr Martin refused, Mr McAleese found a more compliant colleague who was willing to endorse the timesheets.  Mr Martin also established that Mr McAleese on one occasion in the same period had collected blank, signed timesheets from the trainees in his workshop.  The tribunal is not in a position to speculate on the scale of such irregularities, if such they were.  The tribunal declines to make any finding whatever in relation to Mr Martin's claims that he had reported his concerns in relation to these episodes in late autumn 1997 to Mr Lisk and to Mrs Gourley, on the grounds that, as happened often at hearing, these matters had not been put to the relevant witnesses, even though, in Mrs Gourley's case, she had been cross-examined twice by the claimant.  The tribunal concludes that the claimant on learning of these matters from Mr Martin some years after the event, sought to reinterpret what had happened in Jobskills in June 1997 while she was out scouring the countryside for trainees and their timesheets.  The tribunal concludes that she did so from the embittered perspective of a dismissed former employee fired by a sense of injustice, which led her to embroider the facts.

Whistle Blowing

5.23	The tribunal came to a similar conclusion in regard to the other central allegation made by the claimant in respect of this strand of her case.  The claimant maintained as part of her case from 2002 onwards that several months after the June 1997 audit, between November 1997 and April 1998, on an uncertain date, and at a stressful period for her during which she was undergoing disciplinary procedures, she met with the respondent's Director, Mr Blaney, as part of the ongoing disciplinary process.  During the meeting she claims that she stated to the Director that her line manager Mr McAleese had engaged in fabricating evidence, committed fraud, as part of his preparation for the June 1997 audit.  She claimed that Mr Blaney had replied he proposed to do nothing about it, or that he had 'swept it under the carpet.'  Mr Blaney denied the claim.  The sequel, the drawn-out disciplinary procedure culminating in the decision to dismiss her, the claimant alleged, was driven by the respondent's determination to punish her for refusing to take part in the fraud and for blowing the whistle on Mr McAleese.  The tribunal, after careful consideration of the totality of the evidence, concluded that the conversation had never taken place and that the claimant's story did not stand up.

5.24	Among the matters on which the tribunal relied in rejecting the claimant's evidence and her claim on this issue was the claimant's failure to make this case at any time between November 1997 and September-October 2002.  The claimant had shown, as will appear further below, that she was not lacking in pluck in confronting her employer. In regard first of all to the allegation of fraud itself, she had failed to raise it with any of the auditors at the time of the audit.  She had failed to raise the matter at the time of the audit or subsequently with her then line manager, Mr Magee, who nevertheless was sympathetic to her and had his own difficulties with Mr McAleese and Mrs Gourley, until some unspecified date long after he had left the Institute. She had failed to raise it at her September 1997 interview for the post of Jobskills Administrator, in the course of which she had felt free to make wide-ranging criticisms of her second tier line manager, including the complaint that Mrs Gourley had practically rigged the interviews in favour of Mr McAleese. Nor, in her defence to disciplinary allegations in April 1998, when she prepared a lengthy document cataloguing a miscellany of complaints against Mr McAleese, did she raise any reference to Mr McAleese's alleged fraud. In view of the serious allegations she made on these two occasions against Mrs Gourley and Mr McAleese, it is clear that she was not refraining from making allegations of fraud out of fear of the reaction, or to spare the delicacy of anyone's feelings. Despite the arrival of a new second tier manager, Mr Allen Hall, who arrived in early summer 1998 to take over Mrs Gourley's role, and with whom the claimant had a private interview ranging over the tensions and problems within Jobskills, the claimant once more omitted to raise the matter of alleged fraud.

5.25	In relation to the claim that she had reported the matter to Mr Blaney but that he had told her he intended to ignore it, the claimant omitted to make any reference to the matter throughout the course of the disciplinary procedure, prior to its referral to the Labour Relations Agency. She did not raise it as a defence at the staffing committee of the Board of Governors disciplinary hearing, which decided to recommend her dismissal, in January 1999, when it was clear the gloves were off and the stakes were high. She did not raise it at the Board of Governors appeal hearing in June 1999, which upheld the decision of the staffing committee to dismiss. Nor did she make any reference to it in her claim form to the Industrial Tribunal complaining of unfair dismissal and breach of contract in September 1999. These would have been obvious and ideal opportunities for the claimant to make the case that the action taken against her was essentially motivated by a desire to punish her for exposing wrongdoing. She failed to do so.

5.26	The tribunal was further reinforced in its conclusions by this consideration.  An issue at hearing was the claimant's extensive reliance on the printed word to communicate with her line managers, by way of Memo, to the evident vexation of both Mr McAleese and Mrs Gourley.  It became clear that as a matter of policy the claimant had resolved to lay a paper trail for any subsequent inquiry into how she was doing her job and the relations between her and her line management.  She had determined, by her own admission, that she would commit practically everything to writing so as to 'cover her back' against possible subsequent censure by Mr McAleese.  At hearing the claimant submitted over 600 pages of documentation covering all aspects of her work in the Jobskills department and her sometimes fractious relations with line management over a number of years.  This included documentation ranging from the critically important, to the relatively minor, from trainee records to Minutes of team meetings to Memos about the overnight storage of a pair of trainee boots.  The tribunal was led through the minutiae of day-to-day business in Jobskills over many days of hearing on the basis of the claimant's careful accumulation of paper records, many of them created originally by the claimant with just such a purpose in view.  The claimant was perfectly well aware therefore of the evidential value of documentary records.  At hearing under cross-examination she disputed that her line manager had ever asked her to stop sending him memos.  'There is no written evidence he told me to stop,' she said.  'He has no written evidence to support his claim.' Hardly anything moved in Jobskills, on the other hand, without the claimant reducing it to writing. 

5.27	In respect of this pivotal part of the case she wished to make to the tribunal, however, what she allegedly stated to the Director about Mr McAleese and fraud, the claimant could point to no supporting contemporaneous record of having raised the allegation with Mr Blaney or with anyone else.  Nor could she call a witness to corroborate having raised the matter.  The tribunal thought it defied belief that the claimant, in view of her conscientiousness over record keeping, should fail to have a documentary record of something of such moment to her claim of victimisation for reporting fraud.  The claimant had no explanation for these failures that remotely stood up before tribunal.  Nor could she explain why she had omitted to cross-examine Mrs Gourley on her alleged participation in the fraud, and introduced the allegation in evidence only after Mrs Gourley had been called twice to give evidence, and therefore having given her no chance to deny or rebut it.  For all of these reasons the tribunal found that the claimant failed to make out her case either that her line managers had been engaged in fraud or that she had reported it to the Director and had been hounded out of her job on that account.

5.28	In other circumstances this finding might have been enough to dispose of the claimant's case.  The claimant's willingness to raise false allegations against Messrs McAleese and Blaney, as well as Mrs Gourley on such serious matters ought arguably to have barred her from obtaining the relief she sought before tribunal.  Of all the questions the tribunal deliberated upon, this was the most difficult.  Having listened to all of the evidence, however, relating to the circumstances of her dismissal, the tribunal concluded that the claimant was not the only witness to appear before it to have been careless with the truth, on major as well as minor issues.

Jobskills Administrator post

5.29	In August 1997 the respondent trawled within the college for the post of Jobskills Administrator, a position that would replace Mr Magee's role in Jobskills.  Mr Magee's post was redundant from the end of August 1997, although he remained at the college on a part-time basis for a further month or two.  The internal trawl was a departure from the Institute's Promotion Procedure outlined by the then Director Mr Hill in January 1996.  That committed the respondent to trawl such posts throughout the Education and Library Service.  Here the trawl, confined to the respondent college, and job description, limited the field of possible applicants to a maximum of the four ELOs.  Only two applied, Mr McAleese and the claimant.  Called on to explain why the post had not been trawled according to procedure across the Education and Library Service, Mr Blaney said it 'would have been agreed' between Mr Hill the Director, and the Education and Library Service.  He offered no explanation as to why it should have been so agreed.  A witness order had been issued for Mr Hill but the tribunal discharged the witness order following representations from Mr Hill regarding his caring responsibilities for a disabled dependant.  The tribunal therefore remained in the dark as to any possible legitimate reason for such arrangements.  The tribunal concluded that any such arrangements would have been at the request of the relevant departmental manager.  Mr Magee, it was clear, played no role.  That left Mrs Gourley in the frame, with the possible co-operation of then Deputy Director Mr Blaney.  In view of the situation described at 5.10-5.13 above, the tribunal concluded that this arrangement clearly worked to the advantage of Mr McAleese in reducing the field of competition for the post.  The tribunal also concluded that assisting Mr McAleese in this way was potentially in breach of the equal opportunities policies to which the respondent was signed up under JQMS.  The breaches of procedure around the arrangements for the trawl were potentially aggravated by the evidence of a disparity of treatment between the claimant and Mr McAleese in the preceding period in respect of access to training and professional development, notably in regard to the use of relevant software.  The claimant, that is, on the face of it, had a legitimate grievance against her employer.

5.30	The claimant wrote to an official of the Education and Library Service asking to discuss the matter of the restricted trawl but when no one got back to her she let it drop.  She did not pursue the matter through her union either.  Neither in advance of nor subsequent to the appointment procedure did she take out any formal grievance in relation to it.  Instead the claimant applied for the job and was shortlisted and invited for interview in the first week in September 1997.  She did not, she claimed, receive the invitation for interview, but the interview panel, informed of the fact that she was present on campus on the day of interview, with the Education service's approval, sent for her to attend.  The claimant attended the interview, albeit reluctantly, after her request for a postponement was refused.  At hearing, the claimant alleged that she didn't want the job but only applied in order to go along to interview to challenge the arrangements that had been made and to criticise the partiality of line management in relation to the recruitment procedure. 

5.31	The tribunal did not accept the claimant's evidence that she hadn't really wanted the Administrator job.  As the longest serving, most experienced ELO, as the ELO who had in the early years contributed substantially to shaping the role, and as a sharp critic of the shortcomings of her colleagues, in particular Mr McAleese, the claimant regarded herself as the better candidate for the Administrator role and did indeed want the job.  Alternative, and more effective, routes than attendance at interview to challenge the terms of the trawl, at less personal cost, were potentially available to the claimant through representations to the Education and Library Service, through trade union representations, or through the grievance procedure. She chose not to pursue these routes.

Claimant's allegations at interview

5.32	Mrs Gourley did not sit on the interview panel.  She did provide the interview panel with a list of suggested questions for candidates.  One of the questions asked the candidates whether they had identified a problem in operating the TIMS system, and if so, to describe how they had overcome it. Mr Hill, the Director, acted as Secretary and professional assessor to the panel.  Mr Blaney, Deputy Director, sat on the panel as did a number of the Institute's Board of Governors.  At interview the claimant in answer to the question regarding TIMS bluntly told the interview panel that she had been denied access to the system and had had no opportunity to become familiar with it.  She didn't even have a password.  She backed this up by producing a copy of a memo she had earlier sent to Mr Magee outlining her difficulties.  She informed the panel that the other candidate for the post had been 'coached' by Mrs Gourley who had shown favouritism towards him for a considerable period.  She also asked why the post had not been trawled across the five Boards and asked whether the arrangements for recruitment had been agreed with the Union.  There was consternation on the part of the panel.  Mr Hill immediately sought advice from the Education and Library Service who approved a suspension of the recruitment procedure pending the results of an investigation into the claimant's allegations, which he was authorised to carry out.  The claimant, and presumably also Mr McAleese, received notification that the interview panel was seeking clarification of certain matters and that there would be a delay in the appointment procedure.  Mr Hill conducted an inquiry, the results of which he communicated in a brief report to the interview panel, but neither the report, or its conclusions, or the witness statements on which it was based were ever provided to the claimant prior to the remedies hearing before tribunal.  She was never afforded an opportunity therefore to agree with or to challenge its findings.  The sole subsequent response to the representations she had made at interview was at the end of the month in the form of a letter from Mr Hill to advise her she had not got the job and that Mr McAleese had been appointed.

Mr Hill's inquiry into claimant's allegations

5.33	Mr Hill's inquiry focused almost exclusively on the issue of the claimant's and other ELOs' access to TIMS, on the grounds that it was a key criterion for the post trawled.  His report had nothing to say on the terms of reference of the trawl notice and very little to say about the allegations of favouritism.  He took statements from Mrs Gourley, the Head of Department, from Mr Magee, the former Manager and from the 4 ELOs.  Mr Hill found on the basis of the claimant's own statement that she had overstated her case at interview in that she admitted in her statement to him that she had in fact received a password after raising the matter.  Mr Magee's statement, which Mr Hill appears to have relied on quite heavily, said that the claimant had been provided with a separate computer (the hybrid) on which she could access TIMS.  Mrs Gourley gave assurances that all of the ELOs had been given access and a password.  Taken in conjunction with the absence of any formal grievance and the consideration that there were clearly interpersonal tensions affecting the ELOs, Mr Hill concluded that the claimant's complaint regarding access to TIMS was ill-founded.  In light of the evidence he gave at hearing on the claimant's behalf, Mr Magee was cross-examined by the respondent in relation to the statement he gave to Mr Hill.  Although he was a little hazy in his recollection, Mr Magee, to his credit, admitted that by way of self-exculpation before the Director about matters that had happened while he was in charge, he had probably understated the claimant's difficulties in accessing TIMS.  This considerably skewed the report's conclusion on the issue, which dismissed the claimant's complaint.  Mr Magee, her line manager, appeared to be saying there was no real problem, contrary to what he had told the tribunal.  Two additional criticisms might be made of Mr Hill's report, independently of this flaw.  He makes no mention of what the other ELOs had to say on TIMS. Second, he took Mrs Gourley's assurances about the individual strengths of staff being used to improve the efficiency of the unit, 'eg finance -- bills to employers' at their face value, and declined to probe further the allegations of favouritism. 

Feedback failure

5.34	A more serious criticism might be made of the restricted use made of Mr Hill's report.  The report was presented to the panel and they were advised that they could proceed, if they thought it justified, to make an appointment.  The panel went on to appoint Mr McAleese.  The claimant's allegations, so far as she knew, were left hanging in the air.  Whether or not they amounted to a formal grievance was neither here nor there.  An experienced and valued member of staff in the Jobskills office (valued at least by her former manager, her tutors and her trainees) had taken a personal risk in using her interview to raise serious and potentially embarrassing issues for senior management that could have, for example, landed the respondent in an employment tribunal defending discrimination complaints. No steps were taken to explain the findings of Mr Hill's report to her or the statements on which they were based. She was kept in ignorance. Instead, she was left with the strong impression that Mr Hill and/or Mr Blayney would have reported her complaints at interview to Mrs Gourley who, in turn, would have reported them to Mr McAleese, who had now been appointed as her line manager.  Since Mr McAleese, in common with the other ELOs, had also been interviewed by Mr Hill, some idea of what had happened would have become apparent to him in any case. 

5.35	The potential for victimisation in these circumstances ought to have been obvious to Mr Hill and to Mr Blayney, and measures ought to have been taken to guard against such a possibility.  There is little evidence in the sequel to this episode of any awareness of the risk on the part of senior management, or of any effort on their part to prevent it.  In summary, therefore, the claimant had raised a number of issues alleging unfair treatment at work.  Not only had she received no satisfaction, but she had not even received the courtesy of an explanation of how her complaints had been dealt with.  It is little wonder that the outcome had a deleterious effect on the claimant's performance in the months that followed.  It has to be admitted, however, that the claimant did not help herself in the period following Mr McAleese's appointment as Jobskills Administrator.

Disciplinary proceedings (1)

5.36	The claimant had no disciplinary record until the summer of 1997.  On 4 June, in over zealous enforcement of the Institute's No Smoking policy, the claimant asked a trainee to put out his cigarette in college.  When he refused, the claimant attempted to reach for the cigarette, her hand making contact with the trainee's face.  He complained to his departmental head that the claimant had slapped him on the face.  Mr Hill, when the complaint reached him, assigned Mrs Gourley to investigate.  She interviewed the complainant, in the presence of his witnesses, and dissuaded him from pursuing the matter with the police.  She interviewed the claimant and accepted that she had not slapped the student deliberately as was being alleged, but found that she had acted out of anger and had pushed the cigarette from his mouth and in doing so had come in contact with his face.  Mrs Gourley correctly explained that this might well be considered an assault and was a serious matter.  On 28 June 1997 she issued a formal written warning to the claimant which would remain live for 6 months.  The claimant did not appeal the decision, although at various times during the tribunal hearing she sought to take the bad look of the offence by relying alternately on the terms of the No Smoking policy or Mrs Gourley's personal feelings of dislike towards her.  The tribunal finds that Mrs Gourley's action on this occasion was entirely proper and find no fault with her decision. 

5.37	On 20 October 1997 Mr Blayney convened a meeting at the college with Mrs Gourley and a Mr G Laverty of the Education and Library Board.  The meeting was convened to discuss the functioning of the two RTOs since the 1994 merger, the changes in management that had followed, and the functioning of the ELOs.  There was a detailed discussion relating to one ELO who was not identified by name but who was clearly the claimant.  The discussion was structured on the basis of a list of perceived or alleged problems linked to the claimant, or for which she was presumed to be responsible.  They included the following:

1.	Repayment for non-placement of trainees following T&EA audit.

2.	Unexplained absence last week.

3.	Alleged grievance from a second ELO.

4.	Post of RTO Administrator.

5.	Written warning following a complaint from a trainee.

6.	Effects of Job Evaluation.

7.	Lack of a car for several months last year.

8.	Personal statements of unhappiness from the individual concerned.

9.	Recent complaint from trainees.

The claimant did not become aware of this meeting or the list of presumed problems with her performance until the tribunal hearing and in cross-examination of the respondent's witnesses was able to demonstrate that the list was a highly contentious affair in so far as it purported to be a neutral account of difficulties caused by her at work.  Many of the matters had never been raised with her and were patently vague and insubstantial.  Nevertheless, the outcome of the discussion was the formal adoption of a 'fresh start' approach in relation to the claimant.  Duties and reporting mechanisms would be established for all ELOs with an emphasis on a professional approach.  This would be agreed and recorded by the Head of Department and monitored on a weekly basis by the RTO Administrator.  Responsibilities should be clearly laid down and reporting monitoring arrangements should also be agreed.  It is noteworthy that despite the adoption of this approach the respondent failed to maintain any such performance records, or at least failed to produce anything resembling them at the tribunal hearing.

Tensions at work

5.38	On taking up the post as Administrator in mid-October 1997 Mr McAleese introduced a number of new workplace practices and procedures.  As part of the new regime he required ELOs to hand over their monitoring returns on a regular basis and to submit regular updates on placements. Weekly targets were set.  Regular team meetings became a feature as one of the methods of introducing greater accountability.  The claimant appears to have chafed at the changes, some of which entailed a tighter monitoring and supervision.  She no longer enjoyed the freedom to decide priorities, or the same discretion over the disposal of her working day.  Greater emphasis was being given by line management to the routine work of monitoring trainees and submitting timely reports.  Simmering tensions, doubtless in part the legacy of the claimant's unresolved complaints to the interview panel, erupted on two occasions on 6 and 10 November 1997.  On the first, the claimant was reported to have delivered a defiant challenge to Mr McAleese in front of other staff, telling him she would not be turning up for a meeting with him because she had not managed to complete the monitoring returns she was due to deliver.  On the second occasion, witnessed by Mrs Gourley, the claimant interrupted an informal meeting between Mrs Gourley, Mr McAleese and two others and berated Mr McAleese for his failures as an ELO and as a Manager.  She had called to ask for leave to deal with an emergency at home.  When Mr McAleese refused the initial request she became involved in an altercation with him only defused by Mrs Gourley's intervention.  The claimant exhibited signs of stress and extreme agitation. Clearly this type of confrontation could not carry on.  In addition, on two successive Fridays in early November 1997 she had failed to comply with the targets set for her monitoring returns. 

Disciplinary proceedings (2)

5.39	Mr McAleese complained to Mrs Gourley.  At a meeting convened by Mrs Gourley attended by Mr McAleese and by the claimant on 13 November 1997, Mr McAleese's complaints were considered.  Mrs Gourley additionally criticised the claimant for citing her name in correspondence with the T&EA in a manner which Mrs Gourley claimed portrayed Mrs Gourley in an unflattering light.  Throughout, the claimant exhibited a hostile attitude to both of her accusers, and only calmed down towards the end of the meeting.  Mrs Gourley upheld Mr McAleese's complaint and referred the matter to the Deputy Director, Mr Blayney.  He initiated a formal disciplinary investigation under the respondent's disciplinary procedure, in early December 1997, although a disciplinary interview could not be arranged until after the Christmas break, in large part because of evasive action by the claimant, failing to reply to correspondence, going out on sick leave, pleading difficulties liaising with her union representative.  The meeting finally convened on 14 January 1998.  Over the holiday period the Director Mr Hill retired and Mr Blayney was appointed to replace him. 

5.40	In the workplace matters continued to deteriorate. Mrs Fergie described the atmosphere in Jobskills as tense and volatile.  Two further episodes are symptomatic.  On one occasion in December 1997 Mr Martin described being in the claimant's office with the claimant in the Jobskills bungalow when Mr McAleese burst in.  He spoke to her aggressively in a loud voice in front of Mr Martin and criticised her for shortcomings of one sort or another in regard to her work.  Mr Martin felt constrained to intervene in defence of the claimant and ended up berating Mr McAleese for his work as an ELO.   Mr Martin witnessed a further incident involving the claimant and Mrs Gourley that happened in or around late November 1997.  The claimant had been waiting outside the Jobskills admin office in the main building where she had been summoned to a meeting by Mr McAleese.  Mr McAleese wasn't there and the claimant waited for some time before she was joined by Mr Martin who had come to speak to Mrs Gourley, whose office was nearby.  The claimant asked Mrs Gourley if she knew when Mr McAleese was due back and met with a curt reply.  In reply to Mr Martin's query about how long she was expected to wait Mrs Gourley was imperious in reply:  'As long as I say so, as I'm the boss.'  When Mr McAleese eventually arrived, late in the afternoon, he told the claimant he was going home, casually dismissed her and told her he would meet with her another day.  The tribunal did not accept Mr McAleese's explanation that that was the very day that the staff had gone home early on the advice of the central office because of power cuts. 

Action on hold - a second fresh start

5.41	The disciplinary meeting convened by Mr Blaney on 14 January 1998, and attended by Mr McAleese and the claimant, explored a series of issues that were causing friction.  In return for disciplinary action being put on hold, the claimant: undertook to carry out the duties assigned to her by Mr McAleese; agreed to work standard hours and to refer variations to the standard week to her line manager; was reminded of the procedures to be followed in case of sickness absence, and governing the removal of computer equipment from the premises (the claimant had taken her computer home and when she remained out on sick leave the information it contained could not be accessed); was given clarification on her role in regard to and responsibility for timesheets, communication within the RTO, the procedure applying to taking of annual leave. Although the claimant continued to evince hostility towards Mr McAleese and Mrs Gourley the Director recorded that the claimant had understood what her duties were and agreed to carry them out.  A review hearing convened two weeks later, on 30 January 1998, heard that despite difficulties, a working relationship had been established and it was agreed that further disciplinary action against the claimant should be stayed until June, subject to the right of her line manager to refer any breaches of the agreement back to the Disciplinary Authority, Mr Blaney.  Arguably this proposed resolution of the difficulty was evidence of good faith on Mr Blaney's part at least and the renewed offer of a fresh start represented a hopeful development.  There is no evidence in this initial stage of the disciplinary procedure that Mr Blaney was working to any sinister agenda in regard to the claimant. 

5.42	That is how matters stood in respect of the disciplinary procedure until 30 March 1998 when Mrs Gourley referred the matter of disciplinary action back to Mr Blaney.

5.43	Although the disciplinary context seemed hopeful, the reality in the workplace was not.  As early as October 1997 Mrs Gourley had expressed impatience with the claimant's reliance on Memos to communicate with colleagues.  For years the claimant, in part because of arthritis which made handwriting more difficult than keyboarding, in part because of a well-organised approach to her work and a tendency to work regularly outside core office hours, regularly communicated with colleagues by typed memo.  This was in the period before the widespread use of email.  She would update Mrs Craig, and later Mrs Fergie with factual information relating to trainees or other matters. She would also communicate with her ELO colleagues in the same way.  The claimant placed increasing reliance upon Memos for communicating with Mr McAleese following his appointment as Jobskills Administrator. Initially at hearing the claimant attempted to maintain that she did so for neutral reasons because of their efficiency as a means of communicating, and feigned not to understand the objection of her line managers to her Memos, even when she was sending memos to Mr McAleese at a rate of sometimes 7, 8 or even 10 or 11 a day. Later she admitted that she relied so heavily on Memos as a means of communicating with Mr McAleese in order to 'cover her back' against criticism from her line manager.  Her memos to Mr McAleese, moreover, were not confined to conveying matters of fact or information of the type that Mrs Fergie found so convenient.  They frequently contained implied criticisms, sometimes legitimate, it seemed to the tribunal, of Mr McAleese for the manner in which he was doing his job, and sought to hold him to account for this.  On one view the claimant took this to extremes. On another view she was entitled to a shield against unfair criticism.  Mr McAleese responded by taking her computer away from her, notifying her, by memo, a couple of days after the suspension of the disciplinary proceedings in January 1998 which had appeared to bring peace.  The pretext was the decision to centralise typing facilities.  In reality the decision was intended to put an end to the claimant's memos. In this respect the manoeuvre was less than a success for the memos kept coming throughout February and March 1998, the claimant presumably accessing a separate computer in the general office for the purpose.

5.44	In January 1998 the claimant had been counselled, among other matters, on the procedural requirements for taking leave, notably, as a minimum, the need to inform and obtain agreement in advance from her line manager before taking leave. It is clear that the claimant continued to disregard this obligation on her part.  It was an issue once more in the matters raised against her at the end of March.  At hearing the claimant attempted, disingenuously in the tribunal's view, to suggest that in the absence of a clear written policy there was no such obligation, and that in leaving a leave request slip on Mr McAleese's desk or in his pigeon hole just before taking leave she was complying with the requirements.  The claimant also made it difficult for Mr McAleese to monitor her leave of absence by, for example, turning up at the office and working on days for which she had been granted leave, without explanation to the manager, and failing to provide her line manager with a replacement of her mislaid leave card - over a period of months.  The tribunal found that in this matter the claimant was being deliberately obstructive, had played a game of cat and mouse with Mr McAleese, and had attempted to mislead the tribunal as to what the position was with regard to the notice obligations placed on staff.  This was one of the ways in which the claimant maintained a policy of surreptitious non-co-operation, a form of passive resistance. 

5.45	The decision to remove her Apple Mac nevertheless caused hardship for the claimant.  Apart from its use for Memos she was substantially reliant on the Mac for typing her own correspondence and maintaining her own trainee information.  The loss of her computer increased her dependence on typing support from clerical or secretarial staff in the Jobskills department who were frequently under instruction from Mr McAleese not to provide her with typing support.  Some examples cited by the claimant went unchallenged.  On one occasion she attempted to obtain typing support for the typing of CVs for three of her client trainees from trainees assigned to the Jobskills office on IT training.  Mr McAleese did not permit her to make use of their services.  A running complaint arose from the transfer of the claimant's Employer Database from the claimant's Mac to one of the office PCs, a requirement under T&EA guidelines.  The Employer Database was one of the specific areas of responsibility assigned to the claimant by Mrs Gourley in 1996.  Mr McAleese refused to allow the claimant the right to supervise the transfer and updating of the data by the trainee clerical worker assigned to carry out the task, in order to assure the accuracy and adequacy of the transfer.  The result was the introduction of multiple errors in the database that could have caused the respondent serious embarrassment among its employer clients.  Following the theft of her car along with some of her trainee records from outside her house the claimant had sought assistance in reconstituting her records by obtaining printouts from TIMS.  Mr McAleese intervened to prevent a clerical worker in Jobskills from printing off copies of printouts from TIMS.  In these and other ways Mr McAleese had scope for making life difficult for the claimant.

5.46	In March 1998 the claimant discovered that a team meeting had been held in her absence at short notice.  She was advised by an ELO colleague that Mr McAleese had told the team meeting that the T&EA had clawed back money in respect of 2 Motor Vehicle trainees, one of the vocational groups for which the claimant had responsibility, and that the fault had been the claimant's.  There was no basis to the allegation but the claimant's request for Minutes of the meeting were studiously ignored by her line manager, as was a great deal of the rest of her correspondence to him.

5.47	In parallel to her problems at work from the autumn of 1997 onwards the claimant began to suffer bouts of ill-health and depression.  She sought medical advice and obtained some psychotherapeutic counselling.  In early 1998 she joined a support group which met on Wednesday afternoons and derived considerable support from the sessions.  The claimant's leave record confirms that she would take a (half-) day's leave each Wednesday in order to attend her group sessions from February through to June 1998.  In early June 1998 Mr McAleese decided to change the times for team meetings.  Prior to then they had been held on a Monday or Friday. From this time forward they would be held on Wednesday afternoons. Of the first four meetings scheduled for Wednesday afternoons in June/July Mr McAleese was in attendance at only one.  Asked about the reasons for this change at hearing Mr McAleese would say only that it was made for operational reasons.  The tribunal was unimpressed with this explanation and concluded that the change had been decided upon by Mr McAleese deliberately to make life difficult for the claimant. 

5.48	Further examples of Mr McAleese's oppressive treatment of the claimant, and an illustration of how he was blocking her attempts to do her job, are afforded by the following episodes.  The timesheet records were stored in the main office, pursuant to T&EA guidelines.  One of the claimant's client employers raised with her queries in relation to the payments made to a trainee who had not been attending the workplace and could not therefore have obtained the employer's signatures for his timesheets.  The employer asked the claimant to check the trainee's time sheets.  A photocopier sat in the same office as the file containing the timesheets.  However Mr McAleese refused the claimant permission to have the timesheets that were the subject of the query photocopied, and returned to the file, on the flimsy pretext that they were not to be removed from the office, under the guidelines.  On occasion, the claimant, having completed her monitoring reports on the appropriate form, delayed handing them in to Mr McAleese until she could arrange to photocopy them on a photocopier with A3 photocopying facilities.  She photocopied these documents as a matter of routine out of concern that she should have an exact record of her work and out of fear that Mr McAleese should mislay any of them.  Access to this copier was sometimes difficult.  The claimant in the meantime provided Mr McAleese with a list of the names covered in the reports, so that he should be satisfied the reports had been completed in advance of actually receiving them.  They would, in any case, in the claimant's view, only have been sitting in the corner of the Jobskills office.  Mr McAleese would exert officious and unnecessary pressure on the claimant at times to hand these reports over even though he knew they had been completed.  A third example is furnished by the claimant's requests for monitoring reports from Mr McAleese.  The claimant inherited in mid-year from Mr McAleese a number of trainees in different vocational groups.  She reasonably requested access to or copies of Mr McAleese's previous monitoring reports for these trainees to assist her with the work of monitoring the trainees.  Mr McAleese ignored the claimant's repeated requests for this documentation. He also withheld from her monitoring reports provided to him by another ELO.  Far from co-operating with the claimant in this regard he complained to Mrs Gourley that the claimant was pursuing him with time-wasting and futile requests.

5.49	In the foregoing ways, and in refusing to deal with many of the legitimate matters that the claimant regularly raised with him by memo (including a plethora of micro issues affecting individual trainees) or at team meetings the tribunal found that Mr McAleese misused his authority as the claimant's line manager to make it more difficult for her to carry out her duties effectively.

Disciplinary action re-opened

5.50	On 30 March 1998 Mrs Gourley compiled a report relaying to Mr Blaney a number of complaints raised by Mr McAleese against the claimant, and re-triggering the Disciplinary procedure that had been put on hold in January. Mrs Gourley cited a series of matters.  The claimant was allegedly missing deadlines for work, misspending her time on writing 'critical and futile memos', making 'pointless' requests for Mr McAleese's monitoring reports, being generally unco-operative and being rude and hostile at team meetings.  Mr McAleese additionally complained that the claimant was failing to seek his permission in regard to leave, and simply leaving leave slips on his desk immediately before going off on leave.  Mr Blaney formally notified the claimant by letter of 3 April 1998, that he was re-opening the disciplinary proceedings on two grounds: that she did not carry out the duties agreed with Mr McAleese on student monitoring and that she had been insubordinate to her line manager.  A copy of Mrs Gourley's report, relaying Mr McAleese's complaints was sent to the claimant, and she was invited to a disciplinary hearing, eventually fixed for 21 April 1998.

The claimant responds

5.51	On the day fixed for the hearing the claimant arrived accompanied, not by the Union official she had hoped to enlist but by a part-time Staff representative, Mr Andrew Crossan.  The claimant brought with her an 8-page document setting out her answers to the allegations against her on a point-by-point basis.  The document then also set out in 20-odd paragraphs an extended detailed criticism of Mr McAleese's performance in post as Jobskills Administrator in ways that had a clear bearing on both the more general allegations against the claimant and the specific and persuasive reasons why the claimant was having to raise so many matters with Mr McAleese by Memo.  The document sets out matters of substance and detail ranging across Mr McAleese's treatment of staff, trainees and employers.  The claimant cites having witnessed Mr McAleese reduce two of the clerical staff, Mrs Alison Webb and Lisa (McNicholl?) to tears.  In regard to Mrs Gourley's allegation that the claimant was rude to Mr McAleese at team meetings the claimant reasonably invited the Disciplinary Authority to take statements from others attending the team meetings to determine where the fault lay.  The document then goes on to make critical remarks about Mr McAleese's handling of a sizeable number of issues in Jobskills.  Mr Blaney and Mr McAleese adjourned to a side office to read the document.  On their return Mr Blayney stated that the second part of the document did not apply to the disciplinary charges, but rather amounted to a grievance against Mr McAleese that was 'not allowable at a disciplinary hearing. 'The hearing then proceeded to consider the disciplinary allegations.  Mr Crossan argued for a further fresh start.  The hearing went on to find the disciplinary allegations proven. Later the same day the Disciplinary Authority administered a Final Written Warning to the claimant, and advised her of her right to appeal the warning.  Although at an emotional level the claimant did not accept the verdict, refusing for example, ever to sign the warning as requested, she reluctantly accepted the advice of her staff representative not to appeal the warning.

The 'grievance' ignored

5.52	It is not necessary to accept the entire case the claimant makes in this document, some of which is clearly self-serving and consists of weakly argued justifications for her behaviour, in relation to leave, for example, in order to be persuaded that she had raised a strong prima facie case against Mr McAleese that (a) deserved investigation and (b) if proven, or partially proven, put a very different complexion on the complaints against the claimant raised by Mr McAleese and Mrs Gourley.  The tribunal concluded that when the claimant was making so many allegations against her line manager with such a direct bearing on the complaints being raised against her, then in fairness, and as a matter of good practice, Mr Blaney ought to have adjourned the Disciplinary Hearing pending the determination of the claimant's grievances by an independent investigation.  The tribunal considers that the failure to do so completely vitiates the value to the employer's case of the unappealed Final Warning against the claimant.  Alongside of this principal conclusion, the tribunal's concerns over the adequacy of the documentary evidence considered by the Disciplinary Hearing (in view of the decision in January that the ELOs' performance should be measured and recorded against targets) and over the adequacy of the record of the Disciplinary Hearing must take second place.

5.53	Even more surprising, in the tribunal's view, was the failure of the respondent to make any inquiry of its own subsequent to the Disciplinary Hearing into the matters aired in the claimant's document.  Mr Blaney said at hearing he thought it was the claimant's responsibility if she wished to pursue these matters to raise a formal grievance in relation to them.  In light of the gravity of the matters that had been raised by the claimant, the tribunal take the view that this was making a fetish of formalism, and amounted to a serious lapse of judgment on the part of the Director.  The tribunal took the view that Mr Blaney appeared to have run out of patience with the claimant.  For the second time, the claimant had, albeit on this occasion as a defence to disciplinary claims being brought against her, taken a substantial risk in raising serious allegations against her line managers in Jobskills.  For a second time, and even more comprehensively than on the first occasion (at interview) she had been given to understand that her allegations did not carry any weight against the allegations of her line managers.  Moreover, no steps were taken to ensure that as a result of the matters she had raised at the Disciplinary Hearing the claimant would be protected from victimisation.  Mr Hall, it is true, on his arrival in June 1998 to replace Mrs Gourley, did attend one Jobskills team meeting, which, according to the claimant, succeeded in putting manners on Mr McAleese, for the duration of the meeting at any rate.  And he also took confidential soundings from the members of staff about the state of morale in Jobskills.  This had not been done before.  Otherwise the claimant was simply expected to return to Jobskills and continue with work as though nothing of any note had happened between her and her line manager.  No evidence was placed before tribunal of any forward programme for improvement of the claimant's performance.  In these circumstances the tribunal finds it unsurprising that in the succeeding months the claimant's performance underwent deterioration, as she acknowledged at a later stage of the disciplinary procedure.

Harassment persists

5.54	The following months provided additional evidence of Mr McAleese making life difficult for the claimant as the occasion offered.  Reference has already been made to his unilateral decision to transfer team meetings to Wednesdays.  Mr McAleese also attempted to put obstacles in the way of the claimant pursuing her travel claim allowances by withholding his signature on the grounds that they had been submitted on the wrong forms.  There were no reasonable grounds for his objection.  He gave instructions both to the secretarial worker and the office manager not to assist the claimant with TIMS printouts when she was attempting to re-constitute missing records stolen along with her car in May 1998.  A request from the claimant to Mrs Fergie to assist her with printouts was referred back to her on Mr McAleese's instructions to refer the request to him.  Arguably more importantly over the summer months, the prime time for ELOs to work on obtaining possible placements for trainees, restrictions were placed by Mr McAleese on out of hours telephone contacts with employers and visits to employer sites without special reasons, such as signing PPAs with prospective employers.  These restrictions had a particularly adverse impact on the claimant's ability to do her preparatory placement work for trainees wishing to work in joinery or brickwork, more so than for other vocational groups.  It was often difficult to contact such employers in office hours, often self-employed journeymen, at work on sites, before the widespread use of cell phones.  

Disciplinary proceedings (3)

5.55	A review of the claimant's performance following her Final Written Warning was scheduled for end of June.  It was deferred over the summer months and did not in fact take place, as renewed disciplinary action was initiated against the claimant in September 1998 leading to her suspension from duty on 16 September.  Mr Hall for the Senior Management Team at some stage during or shortly after the induction of new trainees in the week beginning 7 September 1998 asked Mr McAleese to obtain an update from the ELOs on the position with regard to trainee placements, in order to allow the SMT to determine whether additional resources were necessary for certain sectors in the search for placements before the limited period allowed under the regulations had elapsed.  Mr McAleese initially asked ELOs on Wednesday the 9 September for the information to be given to him on the Friday. He then asked for the information to be handed over to him later the same day, again at the request of the SMT.  Mr McAleese's unchallenged evidence was that all that he was asking for were the figures for trainee placements in each of the four vocational groups for which the claimant was responsible.  Unlike the other two ELOs, the claimant was not in a position to hand over the required information immediately and told Mr McAleese as much.  She told him she required to do additional work on her induction forms, to liaise with tutors and employers for confirmation before she would be able to hand over the information. 

5.56	It is reasonably clear that the claimant was in a state of high anxiety over this request. Mr McAleese explained the urgency and she still could not comply until, she claimed, she had done the additional work.  Mr McAleese reported back to Mr Hall who contacted the claimant and pressed upon her the need for an immediate turnaround of the information.  The tribunal did not accept Mr Hall's evidence that he had told the claimant unless she complied that it would be a matter for disciplinary action.  In light of the disciplinary history, however, the claimant must have been aware of its potential for disciplinary consequences.  The claimant provided the information requested on the Friday, or 2 days later than requested. In the interim, at Mr Hall's request, Mr McAleese had attempted to assemble the information independently, sourcing it largely from the trainees themselves.  Mr Hall, on the basis of discrepancies between the figures supplied by the claimant and those supplied by Mr McAleese, without further inquiry, assumed that Mr McAleese's figures must be correct and the claimant's incorrect, and that the claimant's figures had been intended to mislead in the sense of painting a more optimistic picture than the reality permitted.  The accuracy or integrity of the rival sets of figures did not become an issue in the subsequent disciplinary hearings, although the claimant did mount a partly successful challenge to the reliability of Mr McAleese's figures at hearing. 

5.57	An episode at the start of the week helps throw some light on the claimant's defensiveness when faced with Mr McAleese's request.  Over the weekend immediately preceding induction week the claimant had spent considerable time at home partially completing, as far as it was possible to do so in advance, the paperwork required for inductions.  The T&EA had altered the format of the forms in 1998 requiring additional information in respect of each trainee placement.  On the Monday, the claimant showed the part-completed forms to Mrs Fergie by way of reassuring herself she had completed the appropriate parts correctly.  Mrs Fergie confirmed to her that she had.  Shortly afterwards Mr McAleese came into the office, had a look at the claimant's forms, and became agitated.  In Mrs Fergie's account Mr McAleese became angry and raised his voice and accused the claimant of having failed to complete the paperwork correctly.  Mrs Fergie retained a clear recollection of the incident because she herself had advised the claimant that the forms had been completed correctly.  Mr McAleese, as appears to have commonly happened, had got the wrong end of the stick.  If this kind of overbearing scrutiny did not justify the claimant's slowness to co-operate, it explains at least the claimant's anxiety to try and ensure she got her facts and figures right before turning them over to her managers.

Suspension

5.58	On 16 September Mr Hall drafted a memo to Mr Blaney recommending the suspension of the claimant, relying inter alia, on the claimant's failure to produce the information when asked, either to Mr McAleese or to Mr Hall, on discrepancies between the figures she had supplied and what he called 'the true state of affairs' identified by Mr McAleese.  These concerns formed points 1-4 of Mr Hall's Memo.  Arguably these represented legitimate concerns on the part of line management over the claimant's performance, albeit subject to confirmation of the 'true picture'.  In the tribunal's view, even if proven, however, the allegations did not warrant dismissal without more.  A number of additional claims, points 5-7, relating to the claimant's creation of a separate database, taking home induction packs, and mishandling of ballot tickets, the tribunal finds were entirely spurious allegations that should have formed no part of any disciplinary proceedings.  To take one example, Mrs Fergie gave evidence that in taking induction packs home in advance of induction the claimant was only doing her job conscientiously.  In taking them home after induction, in order to complete paperwork that could not be completed in the hectic atmosphere of the induction itself, she was again only doing her job and also doing what the other ELOs and Mrs Fergie herself were doing.  In the tribunal's view this made a nonsense of the disciplinary charge brought against the claimant.  In addition the claimant had no difficulty in showing that the other two charges were also groundless. In the tribunal's judgment these bogus allegations raised a clear inference of bad faith on the part of management in maintaining the allegations.  The respondent failed to dispel this inference.  The tribunal is reluctant to speculate as to the real authorship of those allegations.  They did, however, alongside the weight of the Final Written Warning, cloud the deliberations of both the Disciplinary Hearing in January 1999 and the Appeal Hearing in June 1999.  Their impact was clearly adverse to the claimant's prospects at both hearings.

5.59	As the purpose of the present Decision is to consider the contributory fault of the claimant leading up to her dismissal and not the fairness or unfairness of her dismissal, the tribunal has not thought it necessary or appropriate to cite the record of the disciplinary hearings in any detail, although what happened in the course of those hearings has of course had a bearing on the tribunal's deliberations.  In relation to the issues before it, however, the tribunal considers it is important to record as a fact that the Appeal hearing was additionally misled in a material sense by the respondent's Director through his failure to disclose to the appeal hearing the disciplinary warning given to Mr McAleese in January 1999, a matter that was highly pertinent to the defence that the claimant was attempting to mount on her appeal. 

Conclusions

6.	The tribunal unanimously reject the respondent's case that the claimant was solely or largely responsible for her own dismissal.  The claimant, having carried out her duties effectively and conscientiously for a number of years, was dealt a poor hand by Mrs Gourley in 1996-1997.  At interview in September 1997, she attempted to set out for senior managers why she thought this was so.  Mr Hill made a perfunctory attempt to examine her complaints but his report was flawed for reasons discussed above, not least the statement given to him by Mr Magee, a manager otherwise well-disposed to the claimant.  Rejected for the post, and left in the dark as to the fate of her complaints, the claimant was then at the mercy of those she had criticised.  No attempts were made to guard against the risk of victimisation.  The claimant's grievances, which the tribunal consider were often well-founded, mounted between October 1997 and April 1998, and many were set out in her paper to the Disciplinary Hearing in April 1998.  The claimant was not without fault in this period.  The tribunal found that in a number of ways she raised both an active and a passive resistance to her treatment by Mrs Gourley and by Mr McAleese, at times deserving of censure.  Nevertheless, the comprehensive dismissal of her grievances without investigation and the imposition of a Final Written Warning on the claimant in April 1998 did not do justice to the facts.  No more did her dismissal. 

The Law

7.	In reaching its decision the Tribunal took into account the matters set out in Articles146-158 of the Employment Rights (Northern Ireland) Order 1996.  It also had regard to the authorities set out in Harvey on Industrial Relations and Employment Law.

Article 148 deals with reinstatement, Article 149 with re-engagement.  The tribunal saw no reason to vary the terms of its Decision of 3 August 1995 on reinstatement.  The tribunal, on the basis of its finding on contributory fault, decided it should vary the terms of its Decision in respect of re-engagement.

Article 149, 'Order for re-engagement' provides:

(1)	An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or a successor to the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment.

(2)	On making an order for re-engagement the tribunal shall specify the terms on which re-engagement is to take place, including –

(a)	the identity of the employer;

(b)	the nature of the employment;

(c)	the remuneration for the employment;

(d)	any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of re-engagement;

(e)	any rights and privileges (including seniority and pension rights) which must be restored to the employee; and

(f)	the date by which the order must be complied with.

(3)	In calculating for the purposes of paragraph (2) (d) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of the employment and the date of re-engagement by way of –

(a)	wages in lieu of notice or ex gratia payments paid by the employer, or

(b)	remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances.

Article 150, 'Choice of order and its terms' so far as material, provides as follows:

(2)	If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. 
(3)	In so doing the tribunal shall take into account -
(a)	any wish expressed by the complainant as to the nature of the order to be made, 
(b)	whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and 
(c)	where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms. 
(4)	Except in the case where the tribunal takes into account contributory fault under paragraph 3 (c) it shall, if it orders re-engagement, do so on terms which are, so far as is reasonably practicable, as favourable as an order of reinstatement.

8.	The tribunal was required to consider the issues of both practicability pursuant to Article 150 (3) (b) and the justice of making an order for re-engagement pursuant to Article 150 (3) (c).  Notwithstanding the findings of fact in its Decision of 3 August 2005, in relation to the practicability of re-engaging the claimant, the tribunal, on reviewing those findings, which were finely balanced, considered that the practical difficulties for an organisation of the respondent's size and resources should not present insuperable difficulties, given sufficient resolve. 

In respect of the second issue, the tribunal was required to consider whether it would be just to order re-engagement.  The tribunal was required to reach an assessment of contributory conduct on the claimant's part and it concludes that a fair figure is 25 per cent.  The tribunal does not believe that such contributory fault as found should prove a bar to the remedy of re-engagement and the tribunal therefore makes an order that the respondent should re-engage the claimant on the terms set out in the Schedule below. 

9.	The tribunal notes the position of the respondent regarding reinstatement or re-engagement as expressed (a) by its refusal to implement the recommendation for reinstatement of the Appeals Committee which met under the aegis of the LRA in January 2004, (b) in correspondence to the claimant and to the tribunal from Mr O'Rawe of the SEELB Legal Services in November 2004, and (c) as stated by Mr Blaney in his evidence to the tribunal in May 2005, on the grounds particularly that the claimant continues to maintain allegations of fraud against senior officers of the respondent.  The tribunal has a certain sympathy with this position, in view of its unequivocal findings on those allegations.  The tribunal has already devoted considerable time to hearing evidence and argument on whether the claimant could or should be re-engaged. On the authority of the English Court of Appeal case of Parry v National Westminster Bank [2005] IRLR 193, which dealt with a situation analogous in this respect, the tribunal determines on the basis of the evidence and submissions it has already heard, that on confirmation by the respondent of its unwillingness to implement the order for re-engagement, the respondent must pay to the claimant compensation for Unfair Dismissal computed as follows (See Selfridges Ltd v Malik [1997] IRLR 577 EAT): a Basic Award, plus a Compensatory Award plus an Additional Award, as provided for under  Article 151 (3) of the 1996 Order.

	(a)	Basic award:	16.5 x £220= £ Minus 25 per cent = £2,722
		
	(b)	Compensatory award: Future losses, from date of re-engagement for 26 weeks; 26 weeks x £421 (weekly pay at 2007 rate), Minus 25 per cent = £10,946 - £2,736 = £8,210.

		Plus Arrears

Losses from date of dismissal to date of re-engagement (minus 11 weeks' notice pay).

	9 June 1999 - 1 April 2000		=	£13,076
	Year commencing 	1 April 2000	=	£17,587
				1 April 2001	=	£18,171
				1 April 2002	=	£18,815
				1 April 2003	=	£19,527
				1 April 2004	=	£20,046
				1 April 2005	=	£20,648
				1 April 2006	=	£21,258
				1 April 2007	=	£  1,824
	(to date of re-engagement: 1 May 2007)
						=	£150,952
			Minus 11 weeks pay=	£    2,487
			Minus Incapacity
			Benefit*		=	£  24,221
						=	£124,244
			Minus 25 per cent	=	£  93,183						
Plus Loss of statutory rights		=	£        200
						=	£   93,383
Less Additional Award  (26 x £310 limit) 	=	£     8,060

(further to Article 158 (4) of the Order, suspending the cap so far as necessary 'to enable the aggregate of the compensatory and additional awards fully to reflect the amount specified as payable under [Article 149 (2)(d)]'.  Emphasis added.  See Malik.)				

Summary

Gives Compensatory award of 	£    8,210 	(Future losses)
				Plus	£  93,183	(Arrears)
				Plus	£       200	(statutory rights)
				Minus	£    8,060	(offset by Additional Award)
				=	£  93,533

Add 	Basic Award			£    2,722
And Additional Award		£    8,060

Gives  Monetary Award		£104,315

*Note: Incapacity Benefit paid from 
12 June 1999 to 23 February 2006
(date of claimant's 60th birthday)	£  24,221

Net Monetary award of:		£104,315
(Subject to any recoupment applicable in relation to claimant's receipt of Income Support.)
See 'Annex to Decision on Recoupment'	

This is a relevant decision for the purposes of the Industrial Tribunal (Interest) Order (Northern Ireland) 1990.

SCHEDULE TO ORDER FOR RE-ENGAGEMENT

The tribunal orders the respondent (the East Antrim Institute) to re-engage the claimant on terms not less favourable than those which apply to the post of NVQ Support Officer*, the post which replaced the former post of Employment Liaison Officer at the Institute.  The re-engagement should, after appropriate re-training and a phased return to work, offer the claimant scope to apply the skills of a teacher or vocational support worker in respect of the Institute's trainees.

(*Remuneration of the position in which the claimant is re-engaged will match the remuneration scales applicable to the post of NVQ Support Officer.)

The re-engagement will commence with effect from 1 May 2007, and all rights and privileges (including seniority and pension rights) must be restored to the claimant.

The respondent will pay arrears of pay for the period from the date of the claimant's dismissal (account taken of notice pay paid), to the date of re-engagement, discounted 

by 25 per cent for contributory fault.  On figures supplied by the respondent the tribunal calculates the arrears of pay to be £93,183 taking account of notice pay, £24,221 the claimant received in Incapacity Benefit and 25 per cent reduction for contributory fault. 

Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Chairman:				

Place and dates of hearing:	2 May, 4-5 May, 8-10 May, 12 May, 22-23 May, 25-26 May, 1 June, 12-15 June, 4-7 September, 11-15 September 2006, Belfast.

Panel deliberations:	2- 4 October, 14 December; (delay by reason of absence of Panel member from the jurisdiction).

Case Ref No:  03750/99UD, 03751/99BC

CLAIMANT:		Alison Ince

RESPONDENT:	East Antrim Institute of Further and Higher Education
	
ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT

1.	The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£	
(a)  Monetary award	£104,315	
(b)  Prescribed element	£  93,183	
(c)  Period to which (b) relates:	12 June 1999 to 1 May 2007	
(d)  Excess of (a) over (b)	£  11,132	

	The claimant may not be entitled to the whole monetary award.  Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department.  The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2.	The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing.  When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3.	The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed.  The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.

APPENDIX 1

Pre-history of proceedings

1.	This Review Hearing came before the Tribunal in the following way.  The claimant was employed by the respondent as an Employee Liaison Officer at its Newtownabbey campus.  She was suspended from duty on full pay in September 1998, pending a disciplinary investigation into allegations of misconduct.  Further to a disciplinary hearing held in January 1999 and an appeal hearing held in June 1999, the claimant was summarily dismissed on 9 June 1999. 

2.	On 3 September 1999 the claimant presented complaints of Unfair Dismissal, breach of contract, and unlawful deductions from wages to an Industrial Tribunal, and asked the Tribunal for reinstatement.  The claim for unlawful deductions was dismissed following withdrawal by the claimant at a remedies hearing in May 2005.  The issue of notice pay was also resolved between the parties.  The Tribunal was asked to stay proceedings, however, until the appeals procedure in relation to the claimant's dismissal was exhausted.

3.	Under the claimant's contractual disciplinary procedure the claimant was entitled to a second-stage appeal to an Independent Appeals Committee arranged under the aegis of the Labour Relations Agency.  The procedure provided for the second-stage appeal to be held within 20 days of a dismissal being upheld by an internal appeal.  For a variety of reasons, for which the employer must shoulder much of the blame, a series of delays and adjournments delayed the hearing of this second-stage appeal until January 2004.

4.	The disciplinary procedure provided that the decision of the Independent Appeals Committee would be 'final and binding on both parties', although without prejudice to the employee's statutory rights.  The Appeals Committee decided the claimant should be reinstated in her post by 1 March 2004 under a final written warning effective for one year from her reinstatement.  Notwithstanding the binding clause of the disciplinary procedure the respondent declined to reinstate the claimant, claiming that her post no longer existed and that no suitable alternative post existed (February 2004).  In the course of subsequent correspondence to the claimant and to the tribunal the respondent also made clear it believed that allegations maintained by the claimant against a number of senior officers of the respondent rendered her return to work impracticable.

5.	The claimant, with the benefit of legal advice, elected to institute High Court proceedings for breach of contract in early 2005, in relation to the respondent's refusal to reinstate her.  She did not, notably, attempt to amend either her breach of contract or her Unfair Dismissal claim before Tribunal.  Her claims were listed for hearing before Tribunal twice, in late 2004 and early 2005, and were adjourned, on the second occasion at the claimant's request.  The claims were once more before Tribunal on 12 and 13 May 2005.

6.	In advance of 12/13 May hearing the claimant wrote to the Tribunal asking for a further stay of proceedings pending the High Court's determination of her breach of contract claim.  The claimant renewed her application for a stay of proceedings at hearing on the same grounds.  Although she was unrepresented at hearing (and throughout the subsequent proceedings) on this occasion the claimant stated she was making her application on the basis of legal advice.  After hearing her application and considering the respondent's objections, the Tribunal decided to refuse any further stay and to hear the case.  The Tribunal decided on this course on the grounds that the case was already almost six years old, that High Court proceedings had only recently been commenced and were likely to take a further considerable period before being heard.  The Tribunal also considered that it was being asked to determine a complaint relating to the employer's actions in 1998-1999, and that it had no jurisdiction in relation to matters that took place after 3 September 1999.  It accepted the respondent's submission that it ought to be able to do so without trespassing on the question of the employer's alleged breach of contract in 2004, in relation to which in any case it had no jurisdiction in view of the claimant's election to pursue an action in the High Court.  

7.	By correspondence to the Tribunal in December 2004 and at hearing on 12 May 2005, the respondent acknowledged, in light of the Independent Appeals Committee's findings, that the claimant had been unfairly dismissed, albeit that the Committee had decided she be reinstated with a final written warning.  The respondent offered to settle the claimant's claims by an offer of compensation calculated as the maximum monetary award the Tribunal was empowered to make in respect of a dismissal in June 1999.  The claimant rejected the respondent's offer and maintained her claim before Tribunal for reinstatement.

8.	Liability having been admitted by the respondent, it remained for the Tribunal to consider the issue of remedy.  The Tribunal heard evidence from the parties over two days (12 and 13 May 2005), dealing largely with the issues of practicability of reinstatement or re-engagement as at the time of the Tribunal hearing.  As required by the terms of the Order the Tribunal also considered, albeit briefly and on the basis of the records of the internal appeal and the findings of the LRA Independent Appeals Committee, rather than on detailed direct evidence, the issue of the claimant's contributory conduct.  The Tribunal issued a Decision on 3 August 2005 in which it declined to order either reinstatement or re-engagement, and ordered that the parties should reconvene to consider the question of appropriate compensation.

9.	The claimant requested a Review of the Tribunal's Decision.  The grounds on which she relied were that it was not possible for the Tribunal to reach a fair or reasoned conclusion as to the claimant's contributory conduct without hearing detailed evidence of the circumstances of her dismissal which the claimant wished to present in regard to, among other matters, harassment and bullying, and evidence that she had disclosed fraud at the respondent's workplace.  At a hearing on 8 December 2005 the Tribunal acceded to the claimant's request for a Review, determined that the focus of the Review hearing should be the claimant's alleged contributory fault and agreed to consider an application from the claimant to amend her application to include a claim for dismissal contrary to the provisions of the Public Interest Disclosure (NI) Order 1998.  On completion of interlocutory matters this Review hearing opened on 2 May 2006.

APPENDIX 2

Decision on application to amend

Delivered at hearing on 2 May 2006

The tribunal considered the claimant's application for leave to amend her application to tribunal by the addition of a claim for breach of the Public Interest Disclosure (NI) Order 1998 based on her dismissal by the respondent.

The claimant was dismissed on 9 June 1999.  She complained of unfair dismissal to the tribunal on 3 September 1999.  The relevant provisions of the Public Interest Disclosure (NI) Order 1998 did not take effect until 31 October 1999.  A second stage appeal hearing against her dismissal provided for under the contractual disciplinary procedure took place at the LRA in January 2004, which recommended her reinstatement.  The employer declined to reinstate her.  The claimant lodged High Court proceedings.  No application was made to tribunal to amend or update the claimant's tribunal application, except for a postponement of proceedings, until the end of 2005, when the tribunal agreed to consider an application to amend as part of the claimant's application for review.

The tribunal had before it a written submission from the claimant and a short responding submission from the respondent.  The tribunal also heard evidence from the claimant and from the respondent's Director, Mr Blaney, and heard submissions from the respondent's Counsel.

The claimant directed the tribunal to the existence of two separate disciplinary procedures in force at the East Antrim Institute at different times.  The claimant contended, in essence:

that the disciplinary procedure which the respondent says it applied in the course of the disciplinary proceedings against her, provides, at para 10. 2 (b):

'Where the Governing Body having considered representations makes a determination under Section 58 of the Articles of Government of the Institute that the officer should cease to work at the Institute, it shall afford the officer an opportunity of appealing against the determination to an Independent Appeals Committee.'

The claimant further contended, on foot of this paragraph, that the determination cannot come into effect until it has been confirmed by an Independent Appeal Committee. 

The tribunal rejected that contention on the basis that a simple right of appeal under a disciplinary procedure did not preserve the contract of employment or override the effective date of termination.

The claimant contended in the alternative that a second disciplinary procedure, that predated the procedure on which the respondent relied, provides, at the corresponding paragraph, that the Governing Body:

'shall afford the officer an opportunity of appealing against the determination to an Independent Appeals Committee before it carries out the determination.'

On a conflict of evidence over which version of the disciplinary procedure applied to the disciplinary proceedings against the claimant the tribunal concluded that the revised procedure, the first of the two cited above, applied to the disciplinary procedure against the claimant.  It did so notwithstanding the Institute Director, Mr Blayney's, haziness about the date of its introduction (in fairness this issue had been sprung upon the respondent on the morning of hearing) and evidence that the Institute's former Personnel Officer, Mr Withington, had cited a paragraph reference number from the older policy in correspondence with the LRA.  The tribunal decided as it did mainly on the basis of correspondence between the claimant's trade union official and the respondent in which he stoutly defended the claimant's right to keep open the option of tribunal action secured to her by the disciplinary procedure.  Had the older policy been in force, the tribunal concluded that the claimant's representative, a highly experienced official, would have been astute to insist in autumn 1999 on her rights to continued payment of salary pending the disposal of her appeal.  Instead the claimant's official expressly relied in correspondence on the 'agreed procedures as laid down on transfer of colleges from the education and library board,' ie, the revised procedure.

The tribunal rejected the claimant's contention that there was no EDT and no dismissal in June 1999, by reason of the decision of the Appeal hearing at the LRA in January 2004.  The tribunal also rejected the claimant's contention that the real detriment of which she complained was the refusal of the respondent to reinstate her in January 2004 rather than her dismissal in 1999.  The tribunal considered that this was an impermissible attempt to re-open matters that were before the High Court, by way of the claimant's Writ action for breach of contract.  The tribunal had consented to hear the claimant's case on condition and on the understanding that it did not have jurisdiction over matters that occurred subsequent to 3 September 1999.  Its potential jurisdiction in relation to such matters had been ousted by the claimant's election, further to legal advice, to pursue a breach of contract action in the High Court.

In view of the date of implementation of the Public Interest Disclosure (NI) Order 1998 (31 October 1999), and bearing in mind that the law except in rare circumstances has no retrospective effect, the tribunal determine that the provisions of the PIDO have no application to the circumstances of the claimant's dismissal.  The claimant's application for leave to amend is, accordingly, refused.

Whether, as a matter of law, the claimant's dismissal did or did not finally take effect, as contended by the claimant, until February 2004 when the respondent declined to reinstate her, as a matter of logic the detriment of which she complained to tribunal in September 1999,  cannot have been influenced by any of the public allegations that the claimant raised from 2002 onwards, and on which she proposed to rely as an alternative grounds for protected disclosure.

APPENDIX 3

Decision to exclude statement from Susan Lewis

On Day 7 of hearing, 12 May 2006, an issue arose as to the admissibility of a written statement from Ms Susan Lewis, a former clerical worker with the respondent.  The claimant sought to introduce the document in evidence in the course of her examination of a witness. 

The respondent objected on the grounds that the statement purported to give evidence of bullying by Mr McAleese in the workplace.  In the first place the statement was unsupported hearsay.  More significantly, Mr McAleese had already given evidence and the allegations contained in the written statement had not been put to him, the witness those allegations chiefly concerned. 

The claimant claimed that the statement contained crucial evidence of her allegations of bullying against Mr McAleese, and should be allowed in even though she did not propose to call Ms Lewis as a witness. 

When the tribunal asked the claimant why she was not going to call Ms Lewis as a witness, she explained that, in the first place, she was a friend and she did not wish to put her through the ordeal of giving evidence.  Second, she believed that even if she did call her to give evidence, she believed that Ms Lewis would seek medical evidence to avoid having to give evidence.

The tribunal considered that in these circumstances such a statement was of negligible probative value and would be grossly unfair to the respondent.  The maker of the statement would not give evidence and could not be cross-examined on her allegations.  Next, the allegations had not been put to Mr McAleese, whom they chiefly concerned, and therefore he had not been given an opportunity to deny or rebut the allegations.  Third, the tribunal was aware that the claimant's and respondent's bundle already contained the documentation relating to a grievance raised by Ms Lewis against Mr McAleese and the disciplinary proceedings taken against him on foot of that complaint.  The tribunal was in no position to consider additional unsubstantiated allegations against Mr McAleese.  Further, the tribunal was aware that a number of additional witnesses were being called by the claimant to give evidence in respect of allegations of bullying in the Jobskills office and the tribunal considered that the claimant would fairly be able to put her case on the basis of this witness evidence already scheduled.  Admitting the document, the tribunal concluded, would require it to recall Mr McAleese and add significantly to an already lengthy hearing in which a sizeable number of witnesses were already scheduled to give evidence.  Having regard to the Overriding Objective, and in particular the need to have regard to the length and expense of proceedings, the tribunal decided to exclude the statement of Ms Lewis.

[At a later stage in the proceedings the tribunal acceded to a request by the claimant to recall Mr McAleese (and Mrs Gourley) to permit the claimant to cross-examine them on allegations of bullying and harassment.  The tribunal considered that in Ms Lewis' absence, and given her refusal to stand over her allegations in evidence, it should continue to exclude Ms Lewis's statement.]