THE INDUSTRIAL TRIBUNALS

CASE REF:  01663/08IT

CLAIMANT:			Gabriele Caizzo

RESPONDENT:		J D Wetherspoon PLC

DECISION
The unanimous decision of the tribunal is that the claimant has failed to establish that he was unfairly dismissed and his claim is therefore dismissed in its entirety. 

Constitution of Tribunal: 
Chairman:			Mr T Browne
Members:			Mr Jones
                                           Mr Nicholl

Appearances:
The claimant represented himself. 
The respondent was represented by Mr Maher, Barrister-at-law.

1.	The Issue

The tribunal had to determine whether the claimant was unfairly dismissed by the respondent on 21 August 2008, when it summarily dismissed him for gross misconduct.  

2.	The Facts

The claimant was employed by the respondent from August 1998 until his dismissal in August 2008, by which time the claimant was employed as a pub manager in Lisburn.  The reasons given by the respondent for summarily dismissing the claimant were primarily that he had falsified records as to cash-in-hand and that he had permitted food stuffs to be for sale despite being beyond their sell-by date. 

3.	The claimant was suspended from his duties on 7 August 2008 as a result of an audit conducted on 3 August 2008 and resulted in disciplinary hearing conducted on 20 August 2008 by Mr Jeremy Hinde (Area Manager).  The most serious issue was the allegation that the claimant had falsified the amount of the cash-in-hand in the till by getting his brother-in-law to go to the bank for him and withdraw money so that the cash audit would receive a green light from the auditors.  It was alleged to the auditors by Helen Fowler, a Junior Manager in the pub managed by the claimant, that he had asked her to put an I.O.U from him into the safe.  The claimant later stated when challenged about this that he was owed the £140 by the respondent for payments which he had made regarding flights and work connected with a diploma studied for by him in the course of his employment.  The tribunal found that the claimant was given every opportunity by the respondent, particularly at his appeal hearing, to produce bank statements to confirm payments made by him at the relevant times, and indeed the respondent extended that time when the claimant told them that the bank might not be able to produce the relevant documents.  Such documents as were produced by the claimant both at his appeal hearing and indeed to the tribunal, contained blanked out entries on the relevant dates, thereby making it impossible to know what amounts had been withdrawn from his account and when.  The respondents did not believe the claimant’s account of how this imbalance had occurred, although there was no suggestion that the claimant had actually stolen that amount of money; it was instead the respondent’s case that he had sought to mask a shortfall in the takings from the pub, in order to get a better reading on the red/amber/green system utilised by the respondents in conducting their audits. 

4.	The claimant conceded that it was his responsibility to ensure that the food stuffs on display were still within their sell-by date.  His argument however was that nobody had become ill as a result, and that there was a widespread failing within the respondent operation to meticulously observe sell-by dates of food.  It was the respondent’s case however, which was raised at the time of the disciplinary proceedings against the claimant, that the claimant, who was an experienced employee, had exposed the respondent’s customers to a serious threat of food poisoning, and that that combined with the resulting threat to the respondent’s reputation, was sufficient of itself to amount to gross misconduct. 

5.	The claimant when he was suspended in August 2008 almost immediately lodged a grievance with the respondent.  The substance of this grievance was that he was being harassed and picked on by his line managers, and that there was a concerted effort on their part to undermine him and indeed to get rid of him.  The substance of these grievances included allegations by the claimant that one of his line managers was a habitual drug user, and that there had been alliances developed among the line managements staff arising from illicit relationships amongst them and their extended families.  The claimant had never made such allegations before, despite the fact that he claimed that they stretched back a number of years.  The respondent in the course of their investigations found no evidence to substantiate the allegations, and it is worthy of note that nothing of any substance was placed in front of the tribunal upon which it could adjudicate as to the validity of those claims.  

6.	The claimant’s appeal hearing was conducted by Mr Richard Smith (General Manager) on 29 September 2008.  On 15 October 2008, having extended the time for the claimant to produce the documentary evidence as to his bank statements, Mr Smith informed the claimant in writing that he was upholding the decisions of Mr Hinde and that the final decision was that the claimant was to be dismissed.  In his letter upholding the dismissal Mr Smith set out all of the points raised by the claimant at the appeal and fully answered them.  The claimant in his evidence broadly accepted that the minutes taken at that meeting accurately reflected the contents of the hearing.  The claimant throughout this process denied falsifying the cash-in-hand, and whilst admitting that ultimately it was his responsibility to ensure that the food was within its sell-by date, sought to establish a situation where he was so put upon working in a difficult environment that he allowed some aspects of his attention to drift away from closely monitoring the food situation, and that this was evidence and support of his feeling that he was being badly treated by the respondent. 

7.	Law and Conclusions

The Employment Rights (Northern Ireland) Order in 1996, Article 130, sub-paragraph 1, states: “In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	The reason (or, if more than one, the principal reason) for the dismissal, and 

(b)	that it is either a reason falling (within paragraph 2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.  

Article 130 sub-paragraph 2 states “a reason falls within this paragraph if it -

(b)	relates to the conduct of the employee”.

8.	It was the respondent’s case from the outset of the disciplinary process that there were two limbs to that process initiated against the claimant.  One of these related to the failure of the claimant to ensure that proper checks were made as to the use-by dates of high protein products such as meat; the second related to his alleged manipulation of the cash- in-hand on order to get him a better scoring by the auditors than he otherwise would have obtained.  

9.	In the course of coming to its conclusions, the respondent was required to conduct a proper investigation and to reach a reasonable conclusion.  As regards the failure by the claimant to ensure the proper checks on the foodstuffs, he in essence admitted his failure in that regard, but sought to attribute much of the blame for his shortcomings in that regard to the pressure of work he felt himself to be under.  As regards the second limb of complaint by the respondent against the claimant, namely the allegation that he had manipulated the figures to cast himself in a better light, the claimant’s case all along was that he had in fact been owed this money by the respondent and that there was an audit trail available. 

10.	The tribunal has had regard to the leading case of British Home Stores Ltd against Burchell [1980] ICR303, which sets out the test in such cases as requiring the employer to hold a genuine belief that the claimant was guilty of the misconduct alleged, such belief being  reasonable and having been reached after a reasonable investigation.  In applying the requirements of that test to this case, the tribunal has asked itself whether the respondent conducted a reasonable investigation and reached a reasonable conclusion on foot of it.  

11.	The tribunal is satisfied that the respondent did carry out a reasonable investigation, that the respondent was afforded every opportunity to answer the questions put to him, and he in fact was afforded every opportunity to produce evidence of the audit trail which he said existed, but which he singularly failed to do.  With regard to the food hygiene matter, the tribunal accepts the claimant’s contention that others were also responsible for this, that they also failed in their responsibilities.  The tribunal accepts however the respondent’s contention that as manager of the premises, the ultimate responsibility lay with the claimant.  It also was noted by the tribunal that those others were taken to task by the respondent, and, whilst they were not dismissed, their relatively junior rank led the respondent to take a more lenient view of their part in this lapse. 

12.	As regards the money matter, the failure of the claimant to produce the requisite documentary evidence, and indeed his production of documents which in the view of the tribunal had been doctored to conceal the relevant evidence, reasonably led the respondent to a more serious view of his conduct in an already serious situation.  This was compounded by the fact that the claimant, on the evidence of Helen Fowler, by involving her as a junior member of staff, had made a serious situation even worse by abusing his position of seniority to persuade her to breach the clear rules in and around the handling of money.

13.	Under article 130 of the 1996 Order:

“Where the employer has fulfilled the requirements of paragraph (1) the determination of the question of whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) 

(a)	depends on whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

The tribunal therefore, having been satisfied that the employer in this case has successfully discharged the burden, showing the reason for the dismissal, namely the conduct of the claimant, the tribunal then moved to decide whether or not dismissal was a reasonable act by the respondent. 

14.	The tribunal has concluded that either of the limbs put forward by the respondent could constitute gross misconduct.  The potential danger to members of the public consuming out of date food, especially meat, is one in which the tribunal accepts the respondent’s view as being reasonable, as posing a significant threat to public health.  The potential damage to the respondent’s reputation in addition to that public health aspect, is also one which the tribunal accepts as reasonably viewed by the respondent as constituting gross misconduct.  The tribunal similarly accepts that the trust and confidence which is a fundamental part of the relationship between employer and employee was reasonably viewed by the respondent as having being breached by the claimant, not only in masking the true state of the cash-in-hand, but also in his underhand method of persuading a more junior member of staff to cover his traces.  No evidence was heard from Helen Fowler, whom the claimant asserted had been pressurised by the respondent into making her statement against him.   

15.	The tribunal unanimously has concluded that the respondent, having conducted an extensive and open investigation, reasonably concluded that the claimant was guilty of such cash manipulation, which alone in the view of the tribunal could reasonably have justified his summary dismissal.  The claimant in the view of the tribunal sought to have it both ways, on the one hand stating that his lengthy service with the respondent should have led to a lesser penalty, but simultaneously claiming that the position he had reached as manager still permitted him to shelter behind the excuse of being overworked as somehow justifying taking shortcuts in his own work and expecting more junior members of staff to cover up for him.  

16.	It is not for the tribunal to state what it feels the penalty should have been for his misconduct, but to consider whether the response of the respondent by dismissing the claimant was reasonable in all the circumstances.  It is the unanimous view of the tribunal in his case that the decision to dismiss the respondent was reasonable, and was within the range of reasonable responses of the reasonable employer.  In any business, and particularly where large amounts of money in cash are the lifeblood of the respondent, as evidenced by the clear and rigid policies laid down by the respondent, conduct such as that of the claimant was reasonably viewed by the respondent as being wholly unacceptable.  Given his lengthy experience and participation in training junior members of staff, the respondent in the view of the tribunal reasonably viewed the claimant’s conduct as being gross misconduct for which dismissal was a legitimate and reasonable sanction.

17.	The tribunal has therefore concluded that the dismissal of the claimant was reasonable, and his claim of unfair dismissal must therefore fail. 

Chairman: 

Date and place of hearing:	24 April, 17 and 18 June 2009, Belfast.

Date decision recorded in register and issued to parties: