THE INDUSTRIAL TRIBUNALS 

CASE REF:	1186/03
	    									3986/03

CLAIMANT:	Joanne Podbylski			

RESPONDENT:	Domestic Care Services Limited			

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman:			Ms M Sheehan					

Panel Members:		Mr Dodds
				Mr Hall	

			

Appearances:

The claimant:		The claimant represented herself.

The respondent:	The respondent was represented by Ms Daly solicitor of M S C Daly Solicitors.

1.	The issue to be considered by the tribunal was whether the claimant had been unfairly dismissed by the respondent.  The claimant’s claim of sex discrimination had been withdrawn by the claimant prior to the hearing.

2. 	The tribunal in determining this issue considered the claim of the claimant, the respondent's response, the evidence given by Mr Paul Roberts, Ms Lesley McGarry, Ms Jill Adcock and Ms Lindsay McIlwaine on behalf of the respondent; Lisa Munroe and Michelle Gardner on behalf of the claimant as well as the claimant. The tribunal made findings of fact from the oral and written material placed before it.

3.	The tribunal made the following findings of fact:-

(a)	The claimant was summarily dismissed from her employment as a driver with the respondent on the 8 May 2003 for failing to bring in £9.50 cash in respect of meals delivered to clients of the respondent company.

(b)	The main responsibility of the post for which the claimant was employed in 2003 was the delivery of meals and the collection of payments for same on behalf of the respondent. Every week bills were furnished to clients and monies collected either in cash or cheques. The driver then issued a receipt for payment to the client and delivered the copy receipts, cheques and cash to the office of the respondent company where the money was counted and checked to ascertain whether it tallied with the receipts issued. Shortfalls or overpayments were brought to the attention of the driver who would then be given an opportunity to check for missing receipts or cash. The office staff employed by the respondent company was then responsible for inputting into the computer the details of the receipts issued by the drivers. This was the basis used by the respondent for auditing payments. When a receipt was not recorded as paid the respondent's practice was to write to the client seeking payment. The respondent company recognised that honest errors could be made and therefore while drivers would be requested to make up identified shortfalls, disciplinary action was only taken where the respondent considered that an element of dishonesty arose.

(c)	In March 2003 the claimant delivered an invoice for £9.50 to a Mr J Cairns and received payment by way of a cheque in that sum. The claimant issued a receipt to Mr. Cairns for that amount.

(d)	The claimant delivered to the respondent company's office receipts that totalled to £439.80 and the cash and cheques when counted by the claimant also equalled exactly that amount. In April 2003 the respondent company discovered that there was a discrepancy in the handling of Mr Cairns account.  The claimant was suspended with pay pending an investigation. Once enquiries made by Mr Roberts on behalf of the respondent company identified that Mr Cairns had paid his bill by cheque a view was taken by the respondent that the claimant had deliberately not furnished to them the copy of the receipt issued to Mr Cairns and retained £9.50 cash from cash received from various and unknown clients. In the absence of any explanation proffered by the claimant during a number of disciplinary meetings, a conclusion was reached by the respondent that there had been a failure on the part of the claimant to "bring in £9.50 cash". The investigation and disciplinary hearings held by the respondent company were thorough and fair. The meetings were minuted and at hearing there was no substantial issue taken as to the accuracy of the minutes, any issue arose over their completeness.  

(e)      The claimant lodged an appeal with the respondent against the decision to dismiss her summarily. The appeal was heard by Mrs McGarrity. Mrs McGarrity took steps to satisfy herself as to the evidence relied on by Mr Roberts in the disciplinary hearing as well as to clarify the reasons for his actions in handling the investigation and hearings. The appeal hearing was also recorded in writing and it appeared to the tribunal that the appeal hearing was thorough, genuine and fair. There was a genuine belief by the respondent that the claimant had dishonestly failed to account for £9.50 cash received by her in the course of her employment. This was classified as gross misconduct within the respondent’s disciplinary policy. Many of the clients that the drivers came into contact with would be recognised as "vulnerable" adults.  

(f)	The respondent company had in the past dismissed three other employees employed in similar posts to the claimant where the respondent was no longer satisfied on evidence before it that the honesty of the employee had not been compromised. 

4.	Articles 126 and 130 of the Employment Rights (Northern Ireland) Order 1996 are the relevant legislative provisions for the issue that fell to be determined by the tribunal. Article 130 (2) of the 1996 Order includes as a potentially fair reason for dismissal a reason relating to "the conduct" of the employee. The tribunal was satisfied from the facts set out above that the claimant was dismissed for a reason relating to misconduct. The only issue that then fell to be determined was, in the terms of Article 130 (4) of the Employment Rights (Northern Ireland) Order 1996,"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 a sufficient reason for dismissing the employee, and that question has to be determined in accordance with equity and the substantial merits of the case." 

5.	British Home Stores v Burchell (1980) ICR 303 has established a three fold test that must be satisfied if dismissal of the claimant, by the respondent, for a reason relating to conduct is to be fair. The respondent must show that he had a genuine belief on reasonable grounds after reasonable investigation that the claimant's behaviour justifies dismissal. The tribunal concluded that there had been a thorough and fair investigation and the claimant had been offered more than one opportunity to explain how the cash and cheques that she tendered on the day in question matched up exactly, when the receipt for the cheque received from Mr Cairns had not been included in the bundle of receipts handed in to the respondent company. The tribunal heard no evidence that satisfied them on the balance of probabilities that there was anything other than a genuine belief on the part of the respondent in the claimant's misconduct. 

6.	The tribunal then went on to consider whether the respondent had acted reasonably in treating that misconduct as grounds for summary dismissal. In determining that question the tribunal has regard to Article 130 (1) (b) which refers to "..the dismissal of an employee holding the position which the employee held..". The test to be applied is not what the tribunal would have done but whether the decision to dismiss was within the band of reasonable responses of an employer. The tribunal noted as a fact that an integral part of the claimant's post was dealing with the collection and accounting for monies received in the course of the weekly duties. Dismissal fell within the range of reasonable responses for an employer to take particularly when the post involved the receipt and handling of monies on a weekly basis. The tribunal concludes on a balance of probabilities that the respondent did act reasonably in all the circumstances in dismissing the claimant; dismissal clearly 

fell within the band of reasonable responses available to the respondent in the circumstances of this claim Post Office v Foley; HSBC Bank Ltd v Madden (2000) IRLR 827.  Accordingly the claimant’s claim is dismissed.

Chairman:

Date and place of hearing:	20 November 2006, Belfast.

Date decision recorded in register and issued to parties: