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THE INDUSTRIAL TRIBUNALS

CASE REF: 00269/07

CLAIMANT: Donna Moore

RESPONDENT: Little Acorns Pre-School

DECISION

The unanimous finding of the Tribunal is that the claimant was unfairly dismissed by the respondent and she is awarded compensation of £382.92.

Constitution of Tribunal:

Chairman: Mr B Greene

Panel Members: Mr R McKnight

Mr S Adair

Appearances:

The claimant was neither in attendance nor represented.

The respondent was neither in attendance nor represented.

1. The Tribunal did not hear any oral evidence from the claimant or the respondent. The claimant made a written submission. The respondent submitted a bundle of documents in relation to the claimant's dismissal. The Tribunal therefore had regard to the claim, the response and the two submissions from the parties amounting to 92 pages.

The Claim and Defence

2. The claimant claimed that she had been unfairly dismissed. Her other claim for breach of contract had been rejected by the Office of the Tribunals without challenge from the claimant. The respondent denied the claimant's claim and alleged that she had been dismissed for gross misconduct.

The Tribunal was satisfied that both parties had been notified of today's hearing. The claimant had indicated in writing that she would not be attending the hearing.

The Issues

3. (1) Was the claimant unfairly dismissed?

(2) If yes what is the appropriate remedy?

Findings of Fact

4. As neither party was in attendance the Tribunal was not able to seek clarification of the claim and response or of the documents produced. Neither did the Tribunal have the benefit of hearing from the parties where there appeared to be inconsistencies in the party's evidence or where their evidence was mutually contradictory. In addition the evidence of both parties was not tested by cross-examination.

With these limitations the Tribunal considered the claim and response based on the documents before it. From that consideration the following facts emerged or did not seem to be in dispute;-

(1) The respondent employed the claimant from 1 September 2004 to 16 November 2006 when it dismissed her for gross misconduct.

(2) The claimant began work as a Pre-School Assistant and became Pre-School Manager from April 2005. She earned per week £247.50 gross £191.46 net.

(3) The claimant was responsible for running the respondent organisation including its financial affairs.

(4) The respondent initiated an investigation into financial and other irregularities within the organisation on 3 November 2006. The claimant was questioned by four directors Fiona Doherty, Alan Hemphill, Tina Dunne and Karen Mugan about discrepancies in her wages between amounts recorded on cheque stubs and the actual amount on the cheques; a cheque recorded as cancelled on the stub but which was encashed; the lack of receipts for purchases made; and a cheque issued although there were no funds to honour it.

The claimant met with three directors Fiona Doherty, Tina Dunne, Alan Hemphill on 5 November 2006.  

(5) As the investigation continued the claimant was suspended on full pay on 10 November 2006.

(6) The respondent met with the claimant at her request on 16 November 2006 and informed her that a disciplinary meeting would be held.

(7) The claimant wanted the disciplinary meeting to proceed on 16 November 2006 and agreed that it should proceed on the day. Present at the disciplinary meeting were three directors, Fiona Doherty, Alan Hemphill and Tina Dunne. 

Subsequently in her written submission the claimant attacks the holding of the disciplinary meeting on 16 November 2006 because she was not told it was a disciplinary hearing and was not provided with all documents before the disciplinary meeting.

(8) The respondent had not set out in writing the claimant's alleged conduct which led to it contemplating dismissing the claimant or taking disciplinary action against her. Consequently a statement about the alleged conduct was not sent to the claimant with an invitation to discuss the matter.

(9) The respondent did not, before the disciplinary meeting of the 16 November 2006, inform the claimant of the basis for including the grounds in the statement of her conduct that could lead to disciplinary action. Nor was the claimant given any opportunity to consider her response.

(10) At the disciplinary meeting on 16 November 2006 the claimant admitted that;-

(a) She was the only person responsible for looking after bills and the money in the account.

(b) She had spoken to a creditor about an unpaid bill and denied to the directors that she had done so.

(c) A number of cheques had gone through the accounts with the amount of the cheque significantly different from the cheque stub.

(d) Her wage's cheque 601582 for £1130.24 was recorded on the stub as £1030.24.

(e) Her wage's cheque 601593 for £907.81 was recorded on the stub as £807.81.

(f) The two wage's cheque stubs (601582 and 601593) were to show her wages going through the books at a lower rate.

(11) By letter, signed by three directors, Fiona Doherty, Tina Dunne and Alan Hemphill of 17 November 2006 the respondent notified the claimant that she had been dismissed because she was in breach of her contract due to seven counts of gross misconduct. The letter states that the finding of the directors was confirmed by the claimant. The letter does not specify the counts of gross misconduct. It informed the claimant of her right of appeal.

(12) The respondent submitted a number of statements and documents containing information discovered by it after the 16 November 2006, critical of the claimant, but relating to events before the 16 November 2006. The Tribunal did not have regard to this information as it only became available to the respondent after the decision to dismiss the claimant had been made.

(13) The claimant appealed the dismissal in writing on 28 November 2006. The letter of appeal was not made available to the Tribunal.

However it appears from other documents submitted that the claimant alleged, among other things, that she had indeed recorded on the cheque stubs her wages at a lower rate. This apparently was done to enable the claimant to obtain a medical card in the Republic of Ireland where she lived while working for the respondent.

The claimant further alleged, it seems, that she did this with the co-operation or encouragement of Avril Sweeney whom she alleges was a director of the respondent.

(14) Avril Sweeney denies the allegations against her. The respondent also denies that she was a director of the respondent.

(15) Although the parties are at odds over whether Avril Sweeney was a director the Tribunal concludes, on balance, that she was a director. The only objective evidence is the claimant's contract of employment, dated the 1 March 2006. The contract does not bear the claimant's signature but it does bear the signature of Avril Sweeney as Chairperson on behalf of the respondent.

(16) Under the respondent's disciplinary procedure examples of gross misconduct given are fraud and falsification of records.

(17) An appeal hearing was held on the 12 December 2008. The claimant was accompanied at the appeal hearing. It appears that the appeal hearing was heard by at least two directors, though their identity has not been disclosed to the Tribunal.

(18) The claimant and her representative left before the appeal hearing was concluded. The claimant alleges that at the appeal hearing the directors would not listen to complaints that what they had done on 16 November 2006 was wrong.

(19) A further hearing was arranged to conclude the appeal but before it took place the claimant's representative contacted the respondent to inform it that the claimant was unfit at present to attend for interview.

(20) A letter was sent to the claimant inviting her to contact the directors to finalise the appeal. As of the 13 March 2007 the claimant had not contacted the respondent to arrange the conclusion of the appeal hearing.

(21) The claimant has not set out any claim for loss in her originating claim or in the documents submitted to the Tribunal.

The Law

5. (1) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair (Article 130(1) and (2) the Employment Rights (Northern Ireland) Order 1996).

(2) If an employer satisfies both of the above requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130(4) the Employment Rights (Northern Ireland) Order 1996).

(3) To comply with the statutory grievance procedure an employer must;-

(a) send to the employee, in writing, the conduct which lead him to contemplate dismissing or taking disciplinary action against the employee, and

(b) invite the employee to a meeting to discuss the matter, and

(c) convene a meeting before disciplinary action is taken, and

(d) before the meeting takes place inform the employee of the basis for the grounds included in the statement at 5(3)(a) above, and

(e) ensure that the employee has had a reasonable opportunity to consider his response, and

(f) inform the employee of the outcome of the disciplinary meeting and notify him of his right of appeal, and

(g) invite the employee to a further meeting if he wishes to appeal, and

(h) inform the employee of the outcome of the appeal (The Employment (Northern Ireland) Order 2003 Schedule 1, 1, 2 and 3).

(4) An employee will be regarded as unfairly dismissed if the statutory disciplinary procedure has not been completed and the non-completion is wholly or mainly attributable to the employer's failure to comply with its requirements (Article 130A the Employment's Rights (Northern Ireland) Order 1996).  

(5) Completion of the statutory disciplinary procedure in a non-compliant way cannot be equated with failure to complete the procedure. A failure to comply with the general requirements of the statutory disciplinary procedure does not mean that the procedure was not completed (Selvarajan v Wilmot & Others [2008] EWCA Civ 862 CA).

In Selvarajan v Wilmot & Others Mummery LJ summarised the position at paragraphs 26 and 27 as follows;-

"Completion of the procedure is not made expressly or impliedly conditional on, or subject to, compliance with the general requirements. All the prescribed steps in the applicable procedure may be completed, even if there has been non-compliance with other procedural requirements, such as the timetabling standards.

In other words, non-compliance with the stipulated requirements is relevant to deciding, in a case where there has not been completion, who is responsible for the non-completion. Where there has been completion of the procedure as here, it is futile to inquire to whom the "non-completion" is to be attributed."

(6) Subject to Article 130A(1) an employer's failure to follow a procedure in relation to dismissal shall not be regarded for the purposes of Article 130(4) of the Employment Rights (Northern Ireland) Order 1996 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 (Article 130A(2) the Employment Rights (Northern Ireland) Order 1996).

(7) Where an employee is regarded as unfairly dismissed by virtue of Article 130A and the basic award compensation is less than four week's pay it shall be increased to four week's pay unless the Tribunal considers that such an increase would be unjust to the employer (Article 154(1A) and (1B) the Employment Rights (Northern Ireland) Order 1996).

Application of the Law and Findings of Fact to the Issues

6. (1) The Tribunal is satisfied that the respondent has shown the reason for the claimant's dismissal (conduct) and that that reason is one of the statutory reasons that can render a dismissal fair.

(2) The statutory disciplinary procedure was not completed in that the respondent did not complete Step 1 by setting out the alleged misconduct in writing. Nor was Step 2 completed in that in the absence of the written statement the respondent could not give the basis for the grounds set out in the statement.

(3) The claimant did not re-arrange the conclusion of the appeal hearing. However as the respondent had not completed the statutory disciplinary procedure at an earlier stage the claimant had the option of not continuing with the procedure.

(4) The non-completion was wholly or mainly attributable to the respondent's failure.

These failures relate to mandatory explicit requirements of the statutory disciplinary procedure. They do not seem to the Tribunal to be non-compliance which does not give rise to a finding of automatic unfair dismissal (See Selvarajan v Wilmot and others).

(5) Accordingly the respondent's failure to complete the statutory disciplinary procedures amounts to an automatic unfair dismissal under Article 130A of the Employment Rights (Northern Ireland) Order 1996.

(6) The Tribunal finds that the claimant's entitlement to a basic award of two week's pay should not be increased to four weeks as such an increase would result in an injustice to the employer. In so concluding the Tribunal was influenced by the following matters;-

(a) The holding of a disciplinary hearing on the 16 November 2006 without the completion of the requirements of the statutory disciplinary procedure was at the insistence of the claimant.

(b) The false recording at a lower amount of the wages paid to the claimant, by the claimant, in order to facilitate a claim for a medical card in the Republic of Ireland, is sufficient to constitute gross misconduct and was executed by the claimant.

(7) In considering whether the claimant's dismissal is unfair under Article 130 of the Employment Rights (Northern Ireland) Order 1996 the Tribunal is not so persuaded. In so concluding the Tribunal was influenced by the following matters;-

(a) The respondent's failure to follow the statutory disciplinary procedure does not of itself make the respondent's actions unreasonable (Article 130A(2) of the Employment Rights (Northern Ireland) Order 1996).

(b) There is a significant suspicion that the respondent's actions offended against the general principles and requirements of reasonable actions viz;-

(i) A number of the same directors doing the investigation, disciplinary hearing and appeal hearing;

(ii) not setting out the misconduct that gave rise to the disciplinary hearing;

(iii) not asking the claimant is she wished to be accompanied at the disciplinary hearing; and

(iv) not specifying the findings that constituted gross misconduct in the letter of dismissal.

(c) The falsification of wages records at a lower rate by the claimant as manager responsible for the respondent's financial affairs, which she admitted, in order to obtain a medical card in the Republic of Ireland is sufficient in itself to constitute gross misconduct and to warrant dismissal.

(d) The Tribunal has no doubt that had the respondent followed the proper procedure it would have decided to dismiss the claimant.

(8) The Tribunal finds that the claimant has not satisfied it that the respondent unfairly dismissed the claimant for the purposes of Article 130 of the Employment Rights (Northern Ireland) Order 1996 and accordingly that part of the claimant's claim for unfair dismissal is dismissed.

(9) There was not any evidence before the Tribunal that could have supported a claim for a compensatory award.

(10) The claimant is therefore entitled to a basic award of two weeks wages for the automatic unfair dismissal under Article 130A of the Employment Rights (Northern Ireland) Order 1996 which the Tribunal measures at £382.92.

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

Chairman:

Date and place of hearing: 26 August 2006, Londonderry.

Date decision recorded and issued to parties: