THE INDUSTRIAL TRIBUNALS

CASE REF:    2130/11

CLAIMANT:	Deborah Anne McConnell  

RESPONDENTS:	1.	A. C. Fulton Ltd Langford Shoes
	2.	Ronald Fulton

DECISION

The decision of the Tribunal is that this claim is dismissed in its entirety.Constitution of Tribunal: Chairman: 	Mrs A. Wilson

Panel Members:	Mrs C. Lewis
	Mrs. L. Hutchinson

Appearances: The claimant did not appear and was not represented. The first and second named respondents were represented by Mr D. McGuiness, Chartered Accountant of McGuiness and Company.

The Issues:

1.	Who was the claimant’s employer?

2.	Was the claimant dismissed by reason of gross misconduct in circumstances where she would otherwise have been entitled to a redundancy payment?

4.	Was the dismissal unfair?

5.	If the claimant was unfairly dismissed is she entitled to an award in respect of compensation?

6.	If the claimant is entitled to an award of compensation, what was the claimant’s gross pay and what was her net pay?

7.	If the claimant was unfairly dismissed what amount of compensation (if any) is due to her?

8.	Is the claimant entitled to an award in respect of notice pay?

9.	Is the claimant entitled to an award in respect of holiday pay?

The Hearing

10.	The Tribunal has considered Rule 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and having considered the information before it in accordance with Rule 27(6), decided to dispose of the proceedings in the absence of the claimant.

11.	The Tribunal considered and evaluated the sworn testimony of Mr Ronald Fulton.  The Tribunal considered the claim form and the responses entered by the parties.  The Tribunal also considered documents handed in during the course of the proceedings including copy and original receipts, copy p45, original minutes of an investigatory meeting and original minutes of a disciplinary hearing.

Findings of relevant fact

12.	The Tribunal having considered and evaluated the evidence referred to at paragraph 11 makes the following findings of relevant fact on the balance of probabilities.

13.	The first named respondent operated two businesses in Belfast City Centre, one selling men’s shoes and the other selling ladies shoes and handbags.

14.	The first named respondent is the claimant’s employer (and the second named respondent’s employer) for the purposes of these proceedings.  Mr R. Fulton (the second named respondent) had managerial responsibility for the claimant.

15.	The claimant was employed as an assistant in the ladies shoe/handbag shop for a period of some 13 years until her dismissal on the 13 August 2011. During the course of her employment and in recent years in particular, the claimant and Mr. Fulton enjoyed a personal friendship. They travelled to work together in Mr Fulton’s car for a number of years and latterly travelled together by bus in circumstances where Mr Fulton personally paid the claimant’s bus fare.

16.	At the time of the claimant’s dismissal the business was in financial difficulty and has since ceased trading.

17.	It is the claimant’s case that in or around June 2011, when due to a decline in the business stock was running low, she brought some personal items into the shop for display purposes.  This included handbags which were subsequently sold to customers of the shop (on the instructions of the claimant) and for which the claimant received payment.  Payment on at least one occasion was processed through the VISA card machine used in connection with the shop and in respect of which a transaction charge is levied by the bank.  On that occasion the claimant received payment from the till using the customer refund procedure.

18.	It is the respondent’s case that the claimant introduced these handbags to the shop for sale without the knowledge or permission of the respondent during a period when Mr. Fulton was out of the country and that they were sold on the instructions of the claimant for personal gain.

19.	The Tribunal has considered and evaluated conflicting evidence on this material point.  The Tribunal regretfully does not have the benefit of sworn testimony from the claimant but has considered her detailed claim form.  The Tribunal has balanced the information given in her claim form against the sworn testimony of Mr Fulton and taken into account the fact that Mr Fulton’s evidence has not been tested under cross examination.  The Tribunal finds Mr. Fulton to be consistent and clear in his evidence and so accept his testimony in preference to the claimant’s case as outlined in her claim form.

20.	When Mr Fulton became aware of the claimant’s conduct, he initiated an investigation.  An investigatory meeting was held with the claimant on the 20 July 2011 following which a decision was taken by the respondent to suspend the claimant and instigate disciplinary action.

21.	By letter dated the 4 August 2011 the claimant was invited to a disciplinary meeting.  The letter of invitation contained full details of the charges against her and she was informed of her right to be accompanied.

22.	A disciplinary meeting was held on the 10 August 2011.  The claimant attended and was accompanied by Mr Robert Duff.

23.	Following that disciplinary meeting a decision was taken by the respondent to dismiss the claimant for gross misconduct and she was informed of this decision and of her right of appeal by letter dated 13 August 2011.  No appeal was lodged.

The Law (as applied to the facts)

24.	The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) 1996 (“the Order”).

25.	At Article 130(1) of the Order it is stipulated that it is for the employer to show the reason (or if more than one the principal reason) for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).

26.	Article 130(2) of the Order provides that a reason relating to the conduct of an employee is a fair reason for dismissal.

27.	The Tribunal finds that the claimant was dismissed for a reason relating to her conduct. 

28.	Having decided upon the reason for the dismissal, the Tribunal proceeded to consider whether dismissal was fair or unfair in accordance with Article 130(4) of the Order. which provides:-

“where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a)	depends on whether in the circumstances (including the size and administration of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

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

29.	In applying the provisions of Article 130(4), The Tribunal found the following case law of assistance:-

	Rogan v South Eastern Health & Social Care Trust [2009] NICA 47. 

	British Home Stores v Burchell [1980] ICR 303.

	Iceland Frozen Foods Ltd v Jones [1983] ICR 17.  (The Iceland case).

	Gerard Dobbin v Citybus Limited [2008] NICA 42 (which approves the decisions in British Home Stores and Iceland Frozen Foods).

30.	The Tribunal found the following guidance from Browne-Wilkinson J in the Iceland Frozen Foods Ltd case of particular assistance–

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

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

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

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

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

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

31.	The Tribunal also considered the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated –

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

32.	The Tribunal also considered Gerard Dobbin v Citybus Limited, where the Court of Appeal pointed out that when satisfied as to the employer’s investigation and beliefs, the Tribunal must ask itself whether objectively the dismissal was “within the range of reasonable responses for this employer to have dismissed the employee.  In some cases no range is necessary, for example, those in which the case for dismissal is obvious or those in which dismissal is clearly unreasonable.  In the majority of cases there will be a range of reasonable responses”.

33.	The Tribunal finds that the investigation carried out by the respondent was reasonable in all the circumstances of this case and is satisfied that following that investigation the respondent reasonably believed that the claimant was guilty of misconduct.

34.	The Tribunal proceeded to consider whether in all the circumstances of this case dismissal was a fair sanction.

35. The Tribunal is mindful that its function in determining an unfair dismissal claim is not to re-consider the evidence and decide whether it agrees with the decision reached by the respondent.  The Tribunal may only upset the decision if a proper investigation was not followed, if the conclusion reached was not genuine or reasonable or if no reasonable employer could have taken the decision to dismiss in the circumstances. As recorded the Tribunal has found that a proper investigation was followed and that following that investigation a reasonable and genuine conclusion was reached. It now falls to the Tribunal to decide whether the decision to dismiss fell within a band of reasonable responses.

36. The Tribunal considered and evaluated all the evidence and applicable case law as recited above. The Tribunal took into account the fact that the business of the respondent was a small family run business and that the claimant through her friendship with Mr. Fulton probably enjoyed a degree of autonomy not enjoyed by other members of staff. It certainly seems to be the case that her colleagues acted upon her instructions in connection with the sale of the handbags without question.

37.The Tribunal  took into account the fact that the business was struggling and stock was low at the time when these handbags were introduced by the claimant and do not rule out the possibility that the claimant was motivated to some extent by a desire to “keep up appearances”. The Tribunal is satisfied that the claimant made no effort to conceal her actions. However equally there is no evidence before the Tribunal of any express or implied permission on the part of the respondent for the misconduct complained of.

38. The Tribunal have considered  Mr. Fulton’s evidence that he felt disappointed by the claimant’s conduct and particularly so in view of their friendship. It is his case  that he was let down by her in circumstances where he  had  placed absolute trust in her. It is his evidence that he lost trust and confidence in her as an employee as a result of her conduct. On the evidence as presented, the Tribunal has no reason not to accept this to be the case.

39. The Tribunal finds that the sanction in all of the circumstances of this case was harsh and is satisfied that there were other options available to the respondent falling short of dismissal.  However the Tribunal is mindful of Mr. Fulton’s evidence that the claimant acted without authority express or implied and that as a result he lost trust and confidence in her as an employee. 

40. In all the circumstances of the case including the considerations particularly recited, the Tribunal does not conclude that no reasonable employer could have dismissed the claimant. 

The Statutory Procedures

41.	The Tribunal proceeded to consider whether the statutory procedures were properly followed by the respondent.

42.	Article 130A of the Order sets down the required statutory procedures as follows:—

	“(1)	An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if — 

		(a)	one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

		(b)	the procedure has not been completed, and

		(c)	the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

	(2)	Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

	(3)	For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

43.	The standard disciplinary procedure in accordance with Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 applies in this case.  Consequently there are three steps which must be followed which can be summarized as follows:-

	(i) The first is that the employer must set out in writing the employee’s alleged conduct  which led him to contemplate dismissal or disciplinary action against the employee. 

	(ii) The second stage consists of a meeting between the employer and the employee, which must take place before any disciplinary action is taken (unless the employer considers it appropriate to suspend the employee).  That meeting must not take place until the employer has informed the employee of the basis for the disciplinary action, the employee has had a reasonable opportunity to consider his response and the employee must take all reasonable steps to attend the meeting.  After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

	(iii) The third step relates to an appeal and, as the claimant did not appeal it is not applicable in this case.

44.	The Tribunal has carefully considered the procedures applied and followed in this case and is satisfied that the statutory procedures were properly followed.
45.	In particular the claimant was informed in the letter of 4 August 2011 of the allegations against her forming the basis of disciplinary action.  She was invited to a disciplinary meeting on 10 August giving her a reasonable time to consider her response.  The claimant was afforded her right to be accompanied and was in the opinion of the Tribunal given a fair hearing.  She was informed of the decision to dismiss her and of her right to appeal against that decision.

46.	This claim in so far as it relates to unfair dismissal is accordingly dismissed.

47.	The claimant claims the sum of £420.00 in respect of notice pay and £315.00 in respect of holiday pay.

48.	It is the respondent's evidence that all monies due to the claimant have been paid. In the absence of sworn testimony from the claimant the Tribunal accept this to be the case and her claim in so far as it relates to notice pay and holiday pay is also dismissed.

Chairman:

Date and place of hearing:    24 January 2012, Belfast.

Date decision recorded in register and issued to parties: