THE INDUSTRIAL TRIBUNALS

CASE REF:	6896/09

CLAIMANT:			Wendy McFarlane

RESPONDENTS:		1. Financial Foresight
2. James Smyth T/A Ballygowan Agencies
3. James Smyth T/A Financial Foresight
4. Financial Foresight (NI) Limited	

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the respondent is ordered to pay the claimant the sum of £6,819.80 compensation.

Constitution of Tribunal:
Chairman:		Ms P Sheils
Members:		Mr B Irwin	
			Mr D Walls

Appearances:
The claimant was represented by Samuel Martin, Esq., The Employment Law Service
The respondent appeared in person and represented himself.
SOURCES OF EVIDENCE
WITNESSES

1.	The tribunal heard from the claimant and from the respondent, Mr James Smyth and from his witness, Mr Colin Patterson.

DOCUMENTS

2.		The tribunal was presented with a bundle of documents at hearing.  The tribunal was also presented with a number of documents during the hearing.

THE CLAIM AND THE RESPONSE

3.	The claimant lodged a claim form on 1 September 2009 claiming that she had been unfairly dismissed and that the respondent had failed to provide her with terms and conditions of her employment within 8 weeks of the date of her employment.  

4.	The respondent presented a response dated 8 October 2009 accepting that he had dismissed the claimant for gross misconduct.  The respondent acknowledged that the claimant had not been provided with terms and conditions of her employment within 8 weeks of her start date but attached these to the response.

FINDINGS OF FACT

5.	The tribunal found the following facts either agreed or proven on the balance of probabilities:  

6.	The claimant was employed by the respondent as a cashier/administrator from 5 May 2005 until 12 June 2009 by the respondent Mr James Smyth, who was a partner of Ballygowan Agencies.  This was an agency that provided mortgage advice and other financial services as an agent for Halifax.  

7.	The claimant’s duties included serving customers at the counter of the respondent’s offices in Ballyclare, lodging money into accounts and giving it out to customers; dealing with customer’s queries for example in respect of charges made to their accounts; opening accounts and doing related interviews; selling products.  The claimant also did administrative work for the mortgage advising side of the Agency.  

8.	The claimant was trained for her duties for general transactions on the counter by a fellow colleague and also by Mr Colin Patterson.  Mr Patterson was a member of “AST”, which was the Agency Support Team within Halifax with responsibility for supporting agencies such as the respondent’s.  The claimant was also trained on the financial aspects of the administrative duties for the Financial Adviser by Ms Anne Reid, her line manager.  

9.	Mr Patterson was employed by Halifax as a Senior Business Development Manager for Northern Ireland working in the Independent Agency channel. On a day-to-day basis Mr Patterson’s role included visiting agencies to ensure customers were being dealt with according to procedures, to identify where business opportunities might exist or, if already identified, to ensure that they are fully investigated and developed.  In relation to Mr Patterson’s role as identifying customer needs this involved training and hands on help to staff in relation to administrative duties.  

10.	It was also Mr Patterson’s responsibility to give basic training to staff members on their arrival at the Company.  This training consisted of one day workshops but the majority of the training was ad-hoc and conducted on a one to one coaching basis.  Mr Patterson accepted that staff might not even recognise his input as “training” but his objective was to ensure people were equipped with the skills and knowledge to fulfil their roles.  

11.	Mr Patterson stated that he had identified no training needs in relation to the claimant’s ability as a cashier.  He indicated that he had conducted some training with her in relation to her interviewing role, risk checking and, although not solely with the claimant, training in relation to the introduction of a “float” process where he said there had been some difficulties in relation to this. 

12.	On 4 June 2009 the respondent became aware from Halifax that there was a £5,000.00 cash shortfall in the company’s returns to Halifax.  The respondent was working in the Downpatrick office at the time but he immediately contacted Colin Patterson of the Agency Support Team in Halifax and asked him to investigate this situation.  

13.	Mr Patterson indicated that he had been advised that the cash error had originally been £5,000.00 but that this had been rectified to read £1,000.00.  

14.	Mr Patterson outlined the procedure in relation to what a cashier ought to do on discovering a cash error on a till.  Mr Patterson stated that the cashier would count the cash and cheques to ensure that these reconciled.  Mr Patterson indicated that it was a fully automated process and that if the sums did not reconcile the cashier needed to key an entry into the computer to create a note of the cash error.  This was done by keying into “general sundries account” to show that the account did not balance. 

15.	Mr Patterson also stated, however, that if the till warning were ignored by the cashier it would subsequently be discovered by Halifax in Manchester.  Mr Patterson stated that if cash errors were not found and rectified at the end of the month by the agency the agency’s commission would be deducted by the amount of the cash error and the agent would stand the loss.   

16.	Mr Patterson stated that he had begun the investigation into the cash error on 4 June and returned to it again on 9 June.  On 9 June Mr Patterson stated that he had spoken to Melissa McGarvey, staff member in the respondent’s office at Ballyclare  and it seemed clear to him that Ms McGarvey had been proactive in trying to identify and rectify the error whereas Ms McFarlane, the claimant had not been as “enthusiastic to rectify HER ERROR”.  

17.	In an e mail from Mr Patterson, copied to James Smyth and received by him on 10 June 2009 he indicated that the cash was still a £1,000.00 short and made a few observations:

“(i)	I always recommend that if the cashier is also the float holder, that they key their till entries and balance it.  Then key the float entries, and key another balance.  That way you can ascertain if the error is in the float or till.  On 18/5 – Wendy assured me that she did this.

(ii)	Wendy lodged £1,000.00, £5,000.00 and £1,000.00 to the float from her till during the day.  These entries were keyed as they happened, and are recorded in the float book and till book.

(iii)	However, £1,000.00 was also transferred from the float to her till.  The “till entry” for this was not keyed until after she balanced her till.  Therefore, when the till was balanced, it must have balanced in error.

(iv)	Also, there is no evidence in the till book of this money being transferred into the till.  It is listed as going out of the float but not showing as going in to the till.

(v)	Obviously, we were already aware of the lodgement discrepancy.   £5K is listed as going out of the float to the Post Office … but the lodgement slip is showing £4K.  Finally, there are two float entries that appear to have been changed.  A £3K has been changed to £4K, and it looks like a £5K has been changed from a £4K.”

18.	Mr Patterson’s e mail also stated that £1,000 was still missing and that the error occurred on the claimant’s till. It added “I am not suggesting that anything other than a genuine mistake has been made.  However, from an audit trail point of view, it appears that £1K could possibly have gone missing in any one of four float entries during the day”  

19.	Mr Patterson went on to recommend a number of transactions that should be investigated by contacting the customers.  He also recommended that the CCTV cameras for the transactions should be viewed to see if any errors could be identified and to review CCTV footage for any money into and out of float and into the Post Office.  

20.	Mr Patterson stated to the tribunal that he had had a conversation with the respondent Mr Smyth prior to the dismissal of the claimant but the Tribunal heard no evidence in relation to the context of this conversation or any of its details nor was any documentary evidence of it given to the tribunal. Nor did the tribunal hear any evidence from the respondent in relation to any investigation he carried out into the alleged misconduct of the claimant and the respondent relied instead on the investigation as carried out by Mr Patterson.

THE DISMISSAL

21.	On 11 June 2009 at or about 9.00 am the respondent Mr Smyth invited the claimant to attend a meeting right then.  The claimant was not told what this meeting was about or that it was a disciplinary meeting/hearing.  The claimant was not invited to bring a companion with her. 

22.	At this meeting the claimant was advised that she had been “fired”.  The claimant was not given a reason for her dismissal but she was aware that it was in connection with the cash shortfall. 

23.	At the tribunal hearing a document was produced entitled “Wendy McFarlane gross misconduct meeting 11 June 2009”.  This document purported to be a note of this misconduct meeting as compiled by Mrs Reid as note taker. 

24.	It became clear during the hearing that this was not the original version of these minutes and the original version was furnished to the tribunal in due course.  It then became clear from noticeable variations between them that the document in the hearing bundle was not the same as the so-called original version of these minutes. However the claimant had not seen either copy of this document until the first version had been shown to her by her legal representative as a result of discovery. 

25.	The claimant did not accept a number of points that were noted in these minutes.  The meeting minutes noted at point 2 that “JMS asked Wendy about the £1,000.00 error and whose mistake it was.  She replied that on 18 May 2009 it was noticed by the Halifax.  Confirmed that it was a mistake by herself (the claimant) and stated that two people had made bank lodgements on 18 May.” The claimant denied that she had accepted that she had made any such statement.

26.	The tribunal noted that the claimant had not been invited to review these minutes and sign them in June 2009. The tribunal noted accordingly that these minutes had been created solely by the respondent and that their contents were either at worst pure invention or at best unreliably self serving. The tribunal noted that the claimant gave her evidence in a straightforward and honest way and the Tribunal had no difficulty accepting her version of events as regards what had happened at this meeting. 

27.	The claimant subsequently wrote to the respondent on 13 August 2009 asking him to confirm in writing the reason for her dismissal.  On the same date the respondents replied to her advising that her dismissal from Ballygowan Agencies was due to “… negligence resulting in serious loss of £1,000.00 as explained by James and acknowledged by you on 11 June 2009”.  This letter came from Mrs Anne Reid, who had been in attendance at the meeting on 11 June. 

28.	At no stage of the process of her dismissal was the claimant advised that she could appeal against the decision to dismiss her. 

29.	For his part the respondent accepted that he had not followed the procedural steps for dismissal as set out in his company’s Disciplinary Procedures nor did he conduct the dismissal process in line with the statutory dismissal procedures. However the respondent stated that he was aware that this failure would not be fatal to him in that this was a situation where the claimant would have been dismissed in any event .
 
PREVIOUS MISCONDUCT HEARING

30.	The claimant maintained throughout her claim and at hearing that she had a clear, warning-free work record. However at the hearing a document was produced in relation to a prior incident which had occurred in or about 28 April 2009 in the office amongst the staff involving the claimant’s Supervisor, Tennielle McIlroy and another girl, Melissa McGarvey. 

31.	There had been a heated exchange between Ms McIlroy and Ms McGarvey. Ms McIlroy subsequently reported the incident to the respondent who asked to speak to the claimant. The respondent immediately began the conversation with the claimant by telling her that she should not speak to her supervisor in such a manner and gave the claimant no opportunity to explain that she had not been involved in the dispute. The respondent cut across the claimant’s attempts to explain the situation with the words “…no buts”.

32.	This incident led to the claimant being presented with a record of minor misconduct dated 30 April 2009 which cited “inappropriate conduct to General Partner and Site Manager of Ballyclare” and “inability to work at required pace/quality if not supervised and/or prompted”.  This record was signed by Mr Smyth and was witnessed by Melissa Mc Garvey. 

33.	The claimant denied that she had ever displayed inappropriate conduct to the General Partner and/or Site Manager of Ballygowan. The claimant also stated that she had failed in her attempts to persuade the respondent that she had not been involved in this incident. Further the claimant also denied that she had ever been reported for or had demonstrated an inability to work at the required pace/quality if not supervised and/or prompted. On this basis the claimant had refused to sign this record of minor misconduct and at the hearing continued to deny that she had been guilty of either ground of misconduct.

34.	The tribunal had no hesitation in accepting the claimant’s version of this event. The respondent did not produce or give any evidence of any investigation he had carried out into this alleged misconduct of the claimant’s that had brought him to the conclusion he had reached on that occasion. 

35.	Further the tribunal noted and it was accepted by the respondent that, on that occasion also, he had not complied with either the disciplinary procedures within his own firm or with the statutory disciplinary procedures.

The tribunal also noted that although it was clear from the document produced that the claimant had not signed the record of misconduct the respondent had not noted on the record her misgivings or her reluctance to sign the record.  

THE LAW

LEGISLATION

36.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer.  Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.

37.	Article 130 states at paragraph (2) a reason falls within this paragraph if it –

(a)	relates to the capability or qualifications of the employee performing work of 
	the kind which he was employed by the employer to do,

(b)	relates to the conduct of the employee,

(c)	is that the employee was redundant or,

(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.  

38.	Article 130(4) states where the employer has fulfilled the requirements at paragraph 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 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;

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

  39.	Article 130(A) of the same Order provides that an employee shall be regarded as dismissed where the statutory procedures (dismissals and disciplinary procedures) apply and where these have not been completed and where the failure so to complete them lies with the employer. 

CASE LAW

40.	The tribunal considered and took into account the guidance set out in the relevant case of British Home Stores Ltd v Burchill which sets out the task for the tribunal to assess whether the dismissal was fair or not.

41.	The tribunal must determine whether the employer believed that the claimant was guilty of the misconduct, that the employer had reasonable grounds for that belief and that the employer carried out as much reasonable investigation into the matter as was reasonable in all the circumstances of the case. That case also indicated that it was not for a tribunal to replace its own view of what it would have done in the same circumstances.

42.	The Tribunal also considered the guidelines in the case of Iceland Frozen Foods Ltd - Jones [1982] IRLR 439 which sets out the following principles:
	
“the tribunal must consider the reasonableness of the employer’s conduct and not consider whether the tribunal itself considers the dismissal to be fair

In most cases there is a band of reasonable responses ranging between the view that one employer might reasonably take to the view another employer might reasonably take.

The tribunal’s function is to determine whether, in the particular circumstances of the case before it, the decision to dismiss falls within the band of reasonable responses which a reasonable employer might have adopted.”	 

THE TRIBUNAL’S CONCLUSIONS

43.	The claimant was unfairly dismissed for the reason of her conduct in circumstances where the Tribunal concludes that the respondent had no reasonable basis for a belief that she had committed the alleged misconduct. 

44.	Further the tribunal concluded that the claimant had been unfairly dismissed by virtue of the wholly inadequate and unreasonable disciplinary and dismissal process and procedures.

45.	The tribunal also concluded that, in dismissing the claimant, the respondent had completely disregarded the statutory dismissal procedures and that the claimant’s dismissal was automatically unfair.

COMPENSATION

46.  The Employment Rights (Northern Ireland) Order 1996 and the Employment    (Northern Ireland) Order 2003 make provision at Articles 130 and 152 for the payment to the claimant of compensation where the claimant has been unfairly dismissed. The following compensation has been calculated in accordance with those provisions.

BASIC AWARD

47.    The claimant, whose date of birth is 25 November 1986, worked for the respondent from 5 May 2005 until 19 June 2009, four complete years of service, £240 (gross pay) x 3 = £720

COMPENSATORY AWARD

48.	  Loss of salary from 19 June 2009 to 31 October 2009 = £203 (nett) x 19
weeks = £3,857  
 
Loss of statutory rights =                                                                  £500.00     

No future loss claimed.

          Total compensatory award =                                                            £4,375
                                                                                                                                
UPLIFT

49.	Under the Employment (Northern Ireland) Order 2003, where a tribunal finds that  the employer has failed to comply with the statutory dismissal procedures the tribunal may increase the compensatory award to an employee by at least 10% and up to 50% . 

50.	In this case the Tribunal decided to uplift the award to the claimant by 40%. In view of its finding that the respondent did not have a reasonable belief that the claimant had committed any act of misconduct the Tribunal concluded that the respondent had no basis on which to support the suggestion that his failure to comply with these procedures was immaterial and that the claimant would have been dismissed in any event.

51.	Additionally the Tribunal concluded that the respondent had demonstrated both in this case and on a previous occasion a complete disregard for any procedures, whether those of his own firm or the statutory procedures.

	Accordingly; 

       	Total compensatory award =                                                          £4,357.00 plus
	Uplift@40%  = £6,099.80                                                                                                            
Total Award £6,099.80 + £720 =                                                    £6,819.80 
                                                                                                                          
52.   Accordingly the Tribunal orders the respondent to pay compensation to the claimant in the sum of £6,845
    
53.	This is a relevant decision for the purposes of the Industrial Tribunal (Interest) Order 
   (Northern Ireland) 1990.

 

Chairman:

Date and place of hearing:	14-15 January 2009, Belfast	

Date decision recorded in register and issued to parties: