McMahon v LB Meat Products Ltd [2002] NIIT 3715_01 (2 May 2002)

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    THE INDUSTRIAL TRIBUNALS
    CASE REF: 3715/01

    APPLICANT: James McMahon

    RESPONDENT: L B Meat Products Limited

    DECISION

    The unanimous decision of the tribunal is that the applicant was not unfairly dismissed by the respondent, and the applicant's complaint is dismissed by the tribunal.

    Appearances:

    The applicant appeared and represented himself.

    The respondent was represented by Mr Malcolm Emery, Managing Director of the respondent company.

    This is a reserved decision in summary form.

    THE ISSUE

  1. The applicant's complaint was that he had been unfairly dismissed by his employer, the respondent company. The respondent conceded that the applicant had been employed and had been dismissed, but contended that the applicant had been fairly dismissed for gross misconduct. The tribunal accordingly had to decide whether the applicant's complaint of unfair dismissal was substantiated.

    2. THE TRIBUNAL'S FINDINGS

    In consequence of the written and oral evidence adduced before it the tribunal found the following facts: -

  2. The respondent company was engaged in the manufacture, distribution and sale of meat products. The respondent's business premises were situated at Shore Road, Whitehouse, Newtownabbey, County Antrim. Part of the respondent's business operation entailed the employment of van salespersons to sell and distribute the products. The applicant was employed by the respondent, commencing in that employment on 2 June 1997, and the applicant's job involved making deliveries and conducting sales of the company's products in the Greater Belfast Area, particularly in the North of the City. The applicant had written terms and conditions of employment.

  3. One of the functions of the applicant's job was to call with individual customers of the business and, as a consequence of any sales, to collect cheque or cash payments. The practise was for each van salesperson, including the applicant, to return from the day's rounds, having made appropriate written records of the calls made and of the cash and other payments collected. Upon return to the office at the Whitehouse premises, any cash collected was deposited in one of a number of large glass "sweetie" jars, each jar being allocated to an individual salesperson. The records of the salesperson's calls made and the cash amounts collected were also deposited or completed in accordance with established procedures. A cashier in the respondent's office would then arrange to empty each glass jar of cash. The cashier would then count the cash and would tally this with the collection and receipt information provided. The money collected would then be processed through the bank and any other accounting procedures would be undertaken. The cashier entrusted by the respondent with this function was Ms Amanda Comie and she was accorded the title of "Accounts Administrator".

  4. On the 11 October 2001, the applicant returned to the Whitehouse premises from his day's deliveries bringing with him, as was customary, various payments from customers. The total of that day's cash sales relating to the applicant's rounds amounted to the sum of £499.40 and this involved the applicant calling with 13 customers. As usual, the applicant deposited the cash in a glass jar, gave any necessary information to Ms Comie and then departed, his work for that day having been completed. Shortly after this, Ms Comie counted the cash collected by the applicant and she detected in this cash seven Bank of England £20 notes which she believed to be counterfeit notes or forgeries. Ms Comie then spoke to the respondent's Chief Executive, Mr James Lillis, and drew to the attention of Mr Lillis her concerns about these seven banknotes appearing to be counterfeit. Further investigation was then carried out by the respondent. A list of the applicant's cash customers that day was obtained and it was ascertained that the amounts collected from these customers ranged from £10.90 up to £93.20, but no more than that. It was also established to the apparent satisfaction of the respondent that the notes were indeed forgeries. Furthermore, it was noted that when all seven notes were placed together there was a small cut which lined up along the notes, suggestive of the fact that the notes appeared to have all been placed together when the cut was made.

  5. Mr Lillis next that day contacted the applicant and informed him about the discovery of the apparently forged notes in his cash collection. Mr Lillis asked the applicant where he believed the notes might have come from. The applicant did not supply Mr Lillis with any specific information at that stage. Mr Lillis then telephoned the applicant again that day and asked him to have a further think about the situation and told the applicant that he would contact him further. He also informed the applicant that he would be obliged to contact the Police. Mr Lillis then reported the matter to the Police and an investigation commenced concerning the possibility of a criminal offence having been committed.

  6. The tribunal noted that, on account of a previous incident when the applicant had apparently received a forged Bank of England £20 note in his wages, the applicant was alert to the possibility of forged English £20 notes. At the material time the respondent had eight van salespersons. It was the case that the number of (genuine) English £20 notes ordinarily received in cash collections from these salespersons was usually at a very low level. There appears to have been a general awareness in the company, including an awareness on the part of the applicant, that any Bank of England £20 note received might possibly have required to be checked to establish whether or not it was a forgery. The tribunal is satisfied, upon the evidence before it, that there was only an extremely remote possibility that the applicant's cash collections could have become mixed up with cash collections from other drivers.

  7. The applicant voluntarily agreed to be interviewed by the Police at the respondent's business premises on 11 October 2001 and gave a statement to the Police on that date. Mr Lillis also gave a statement to the Police, as did Ms Comie. The respondent arranged for its Sales Manager, Mr Martin Dickson, to visit each of the customers visited by the applicant on 11 October 2001. Mr Dickson collected information from those sources which was used to prepare a schedule of customers visited and the amounts of cash collected by the applicant that day from each customer.

  8. The applicant attended work the following day, Friday 12 October 2001, but it would appear that his purpose was merely to collect his weekly wages. He did not carry out his normal duties on that day. The following working day, Monday 15 October 2001, the applicant did not attend work. Apparently the applicant's wife left a message on the respondent's answer phone to the effect that the applicant was unfit to attend work on account of illness. The applicant attended his Doctor later in the course of that week and the Doctor gave him a "sick line" for four weeks and seems to have prescribed medication, including sleeping tablets and anti-depressant tablets. The applicant next attended the respondent's premises on Thursday 18 October 2001. There was a conflict in the evidence between the applicant and the respondent's witnesses as to whether or not the applicant merely attended work that day to collect his weekly pay or whether he had been specifically requested to attend by the applicant's Managing Director, Mr Malcolm Emery, for the purposes of an investigatory meeting. The tribunal feels that it is more probable than not that the applicant was summoned to attend by Mr Emery. Pay day was Friday. If the applicant's sole purpose had been to call to collect his pay he would have been calling a day early. The tribunal accepts that the applicant attended a meeting voluntarily at the request of Mr Emery. The tribunal thinks it more probable than not that the applicant was clearly appraised to the fact that this was to be an investigatory meeting in respect of the matter of the receipt of the alleged forged banknotes. However the tribunal did not see any clear evidence before it that the possibility of the meeting becoming or being followed by a disciplinary hearing was stated expressly to the applicant by the respondent when he was requested to attend on that Thursday 18 October 2001. It should be noted that, although the applicant was then in possession of a "sick line" from his Doctor excusing him from attendance at his place of work for a period of four weeks, he did not bring the existence of that certificate to the respondent's attention. The respondent had no information before it throughout the course of the meeting of 18 October 2001 that the applicant was or might have been unfit to attend any formal investigatory or disciplinary meeting or hearing.

  9. The meeting on that Thursday then proceeded and in the course of the meeting Mr Emery sought an explanation from the applicant about the forged notes which had been found in his cash takings on the day in question. The applicant provided no explanation to Mr Emery and stated that he was unable to assist. There then followed a conflict in the evidence of the applicant and the respondent as to whether or not the meeting continued without a break to a conclusion, with the investigatory meeting then turning into a disciplinary hearing, or whether there was an investigatory meeting followed by a clearly-defined break, during which any information gained at the first meeting was discussed at management level, and there then followed a disciplinary hearing. The tribunal had some difficulty in resolving the conflict in the evidence. On balance, the tribunal believes that the meeting was arranged in two parts, the first part investigatory, the second part disciplinary. The tribunal also accepts that the applicant was invited to be accompanied to the meeting by a fellow employee in accordance with the particular provision to that effect in his terms and conditions of employment. The applicant declined that offer. Whilst the applicant contended that at the meeting he was prevented from providing an explanation of what had or might have occurred, the tribunal had difficulty in observing anything in the structure or the conduct of the parts of the meeting suggestive of the fact that the applicant was materially prevented from providing an explanation or from meeting the charges of gross misconduct which were put to him by Mr Emery.

  10. The outcome of the meeting was that a decision was taken by the respondent to dismiss the applicant for gross misconduct. The dismissal decision was orally announced to the applicant by Mr Emery towards the conclusion of the meeting. The applicant then became very agitated and abusive. The applicant was advised by Mr Emery that he had a right to appeal the dismissal decision to Mr Lillis, the respondent's Chief Executive. After all of this had taken place and the dismissal had been effected, the applicant produced a medical certificate from his Doctor, Doctor McMullan. This certificate was dated 16 October 2001 and indicated that the applicant was suffering from "stress disorder". This was only produced after the dismissal had been announced. The applicant indeed stood dismissed and left the meeting at that point. He returned the following day to collect his outstanding wages and his P45 form. Included in the applicant's pay packet was a letter dated 19 October 2001 explaining that the applicant's employment had been terminated on 18 October 2001 for gross misconduct as the applicant had been unable to provide a satisfactory explanation as how he had in his possession £140 of counterfeit money. The letter further stated that the applicant had the right to appeal this decision to Mr Lillis within the next five days. The applicant received this but he chose to tear up the letter. He did not appeal the decision to dismiss. The tribunal accepts that the applicant was aware of his entitlement to appeal the decision and he declined to do so.

    11. THE TRIBUNAL'S DECISION

  11. In regard to the applicant's claim of unfair dismissal, an employee has a right not to be unfairly dismissed by his employer under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996 unless the employer can show that the dismissal is fair for one of the reasons set out in Article 130 of that Order. One such reason relates to the conduct of the employee. Here, the respondent purported to dismiss the applicant on grounds of gross misconduct. The task of the tribunal is to establish, in such a case of alleged gross misconduct, which would on the face of it be a potentially fair reason for dismissal, whether the respondent had acted reasonably in all the circumstances in treating the reason as sufficient. The statutory test is contained in Article 130(4) of the Employment Rights (Northern Ireland) Order 1996. The guidance contained in that Article is as follows: -

    12. "…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 administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as sufficient reason for dismissing the employee, and

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

    In the application of this statutory provision the tribunal is mindful of the guidance stemming from the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 which includes (inter alia) the following: - (i) 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; and (ii) the function of the 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.

  12. In this case the tribunal examined the substantive and the procedural aspects surrounding the dismissal of the applicant by the respondent. The respondent appears to have had reasonable grounds for taking the view that the applicant had included these counterfeit notes in his cash collections that day. Despite the unusually high proportion of English £20 notes in the day's cash takings, the applicant would have had the respondent believe that his suspicions had not been aroused nor had he reported anything unusual to the respondent. The evidence suggested to the respondent that all of these seven £20 notes had at one time been placed together, yet no cash collection from any single source that day exceeded the sum of £93.20. The tribunal takes the view that, on the evidence then before it at the time of the dismissal, the respondent company had good and substantial cause for concern and it was not unreasonable for the applicant to be under suspicion in regard to the possible commission of an offence of dishonesty at work. The offence of dishonesty in any business is a most grave one, particularly any business which involves cash collection systems grounded upon trust and scrupulous honesty. The respondent was justified in taking the view that the applicant should be placed under investigation in respect of possible dishonesty and that there was, on the face of it, a case to meet on his part. In respect of the investigation, the respondent took steps to have Mr Dickson call with the various customers to assemble the required information and the respondent in general terms put together sufficient information to bring the matter to a stage where the applicant was interviewed formally on the 18 October 2001. The applicant can have been in no doubt as to the intent and purpose of the interview. The tribunal is satisfied that the applicant was advised of his right to be accompanied to the meeting, and that the applicant knew why he was there. The tribunal believes that the applicant was in no doubt that the second part of the meeting constituted a disciplinary hearing. The investigation was, in the tribunal's view, adequate and sufficient and the meeting with the applicant was conducted in a manner which appears to have met the basic procedural standards required to ensure fairness. Being faced with what, to the respondent, seems to have been compelling evidence of dishonesty on the part of the applicant, there is however no evidence that the respondent Company considered the proportionality of the sanction of summary dismissal or possible mitigation in regard to the offence. However the tribunal believes that in the case of a most grave offence such as the offence of dishonesty, and in certain factual situations such as the one before this tribunal, that is not an absolute prerequisite. The applicant notably made no plea in that regard. The tribunal therefore is of the opinion that the respondent, faced with the information then before it, reasonably took the view that summary dismissal would have to follow a finding of gross misconduct of this type. The tribunal is also satisfied that a right of appeal was fairly and properly afforded to the applicant but that the applicant chose not to follow any appeal. The tribunal therefore takes the view that, having demonstrated to the tribunal the reason for the dismissal of the applicant, the respondent acted reasonably in treating that reason as sufficient reason for dismissing the applicant and that the respondent's dismissal of the applicant was fair both on substantive and on procedural grounds. Therefore the applicant's case must fail and the applicant's complaint is dismissed by the tribunal, without further order.

    13. Chairman:

    Date and place of hearing: 2 May 2002, 20 August 2002, Belfast

    Date decision recorded in register and issued to parties:

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URL: http://www.bailii.org/nie/cases/NIIT/2002/3715_01.html