THE INDUSTRIAL TRIBUNALS

CASE REF:	4103/17

CLAIMANT:			Shane Doherty

RESPONDENT:		KMC Tyres Limited

DECISION 
The unanimous decision of the tribunal is:
(a)	The claimant was not unfairly dismissed in March 2017;

(b)	There was no unlawful deduction of wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996;

(c)	There was no breach of contract in respect of holiday pay, arrears of pay, notice pay or wages and accordingly all those claims before the tribunal are dismissed.

Further, as the claimant made no application for a determination of main terms and conditions, the tribunal makes no order in respect of the admitted failure of the respondent to provide to the claimant a statement of main terms and conditions of employment as required by Article 33 of the Employment Rights (Northern Ireland) Order 1996.
The tribunal has determined that in respect of the claimant’s application for a Wasted Costs Order, no order should be made as the omissions in the respondent’s preparation for the hearing did not equate to “any improper, unreasonable or negligent conduct” and reflecting on the omissions in the preparation of the claimant’s evidence, the tribunal did not consider in all the circumstances of this claim that it was just to make any order under Article 48 (3)(a) of Schedule 1 of the Industrial Tribunal (Constitution and Rules of Procedure) Regulations 2005. 

Constitution of Tribunal:

Employment Judge:	Employment Judge Sheehan
		
Members:			Mr I Carroll
				Mr I Foster

Appearances:

The claimant was represented by Ms Louise Maguire, Barrister-at-Law, instructed by McCay Solicitors.

The respondent was represented by Mr Rory Donaghy, Barrister-at-Law, instructed by Madden & Finucane Solicitors.

ISSUES

1.	The claim of unfair dismissal was brought by the claimant against the respondent in relation to his dismissal on 24 March 2017.  In summary the claimant alleged that he had been unfairly dismissed in that the respondent had failed to carry out an adequate investigation before dismissal and secondly that the respondent had determined to dismiss the claimant due to the marital breakdown between the claimant and the respondent’s sister.  The claimant also alleged breach of contract relating to a failure to pay notice pay, holiday pay and arrears of pay as well as alleged unauthorised deduction of wages contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996 (1996 Order).  However during the hearing while evidence was produced concerning the alleged unlawful deduction of wages, no evidence was called in respect of holiday pay or arrears of pay.  The parties were in agreement that no written statement of main terms and conditions of employment as required by Article 33 of the 1996 Order had been provided to the claimant nor had any other specific contractual agreement been discussed or provided to the claimant during his employment.  The respondent disputed the claims made in full other than the failure to comply with Article 33.    

FACTS

2.	We received witness statements and heard oral evidence from the claimant, from Kevin McCool, a Director of the respondent company, from Martine McAuley and Breda Cullen, partners in a human resources consultancy business, known as HR Team, as well as Karen Healy, a customer of the respondent company.  A considerable number of documents were opened to us in the course of the hearing.  A booklet of core pleadings and schedule of relevant documents (of 139 pages) as well as a booklet of prepared statements of evidence on foot of a Case Management Direction were handed in on the first date of hearing and identified as Exhibit A and B respectively.  Additional exhibits were provided as the hearing progressed including bundle 5,000 (R 2) and Job Docket booklet 5,001 to 5099 (R 3).  The Daily book for 2016 maintained by Kevin McCool was detailed as R 4.  On the basis of the evidence heard we make the following findings of relevant facts.  

3.	Both Kevin McCool and the claimant at times tendered responses in evidence which were inconsistent with their prepared statements of evidence.  They also tendered unsatisfying evidence regarding the chronology of their interactions with each other or clients of the respondent company.  However throughout the hearing we found the claimant to be less than a direct and forthright witness.  He was evasive in many of the answers which he gave to questions.  We found the claimant’s assertions regarding what documents he did or did not receive in advance of the disciplinary hearing lacked credibility, given his failure to act on this alleged omission while having utilised legal advice at the outset of the respondent’s investigatory process.  The claimant made no effort to obtain the alleged missing documents in advance of the disciplinary meeting despite them being expressly referred to in the correspondence.  In addition there was no reference to the omission of these documents in his letter of appeal against dismissal or in his prepared witness statement for this hearing. 

4.	There were elements of the evidence of Kevin McCool that concerned the tribunal in terms of accuracy, not only as to when the investigation exactly commenced but also who was conducting that investigation.  However, the texts exchanged between the claimant and Kevin McCool in December 2016 to early January 2017 led the tribunal to conclude that whether the misconduct alleged against the claimant came to light before 22 December 2016 or the 15 December 2016, the latter being the date of the claimant’s marital breakdown with the sister of Kevin McCool, was not as important a factor as the claimant alleged.  The tribunal did not find credible the claimant’s allegation that the respondent fabricated the allegations of misconduct resulting in his dismissal on 24 March 2017.

5.	The tribunal were concerned that the claimant and the respondent completed the commencement date of employment in the IT1 claim form and the response with dates which differed by a period of seven months.  The claimant had inserted 
7 February 1997 and the respondent recorded the commencement date as 
1 September 1997.  During the hearing the respondent alleged the claimant’s date of commencement of employment occurred in 2002.  No explanation was proffered to the tribunal for this change of commencement date other than the respondent’s accountant had advised this date.  The revised date was some 5 years later than the date completed by Kevin McCool in the response filed with the tribunal office and the date inserted in the IT1 by the claimant.  Eventually, on the final day of hearing, the tribunal was advised by the parties that an agreed date of commencement of the claimant’s employment with the respondent had been reached, 7 March 1999.  No explanation was offered to the tribunal to explain this change of date by 2 years from the dates first inserted in the claim and response forms other than it was an agreed date. 

6.	The discrepancy regarding the dates of employment was followed by conflicting evidence produced regarding the wages or pay received by the claimant from the respondent.  Firstly the claimant’s claim form recorded the normal take home pay as £400 weekly.  The response filed by the respondent recorded both the weekly gross and take home pay as the same figure £300.  Texts exchanged between the claimant and Kevin McCool regarding the wages to be paid to the claimant included texts dated 5 January 2017 from Kevin McCool to the claimant which read “I’m confused now.  Your saying £220 in your bank £80 in your hand & £60 paid off your cred”.  The text back from the claimant said “Yep that’s right”.  These texts were followed by a text on 9 January 2017 at 14.39 which read “I’m honouring your wages to the amount that you where declared on our PAYE”.  The claimant responded at 15.05 querying whether the respondent intended to pay “me what u declare to the tax man not what I get paid in full.”  The oral evidence at hearing was that the claimant’s pay was £300 per week after tax, with £220 paid into a nominated joint account and £80 paid in cash. 

7.	The tribunal noted that the claimant’s application to the tribunal was misleading in a number of respects and inconsistent with the prepared statement of evidence which he presented to the tribunal.  In particular he alleged in his claim form that it was during his suspension from his employment which occurred on 12 January 2017 that he requested his wages be paid to a different account as he no longer had access to his joint account.  The claimant made no reference in his claim form to the conversation he alleged to have occurred with a Stephen Quigley in his prepared statement of evidence of Mr Quigley being advised on 29 December 2016 that the claimant no longer worked for the respondent. 

8.	There was inconsistency between the documentary evidence the claimant produced for the period he claimed job seeker’s allowance and his evidence regarding when he obtained employment following dismissal.  Against this background the tribunal found that it could not be satisfied, as a matter of fact, that the agreed date for commencement of the claimant’s employment which was provided to the tribunal on the fifth day of hearing was the actual real date the claimant commenced employment with the respondent.  

9.	No evidence was produced or called by the claimant in respect of the claim for alleged breach of contract in regard to a failure to pay holiday pay or arrears of pay. 

10.	The claimant worked full-time for the respondent from the commencement of his employment until his dismissal on 24 March 2017.  The respondent company was a small family run company, with no person specifically responsible for the human resources functions. 

11.	Throughout the period of the claimant’s employment the number of employees, including directors, varied between 7 to 8 employees, including the claimant.  The respondent company did not have a practice of providing contractual documentation or written policies or processes to employees concerning the discharge of their duties.  This meant the respondent company failed to comply with a number of the formalities required by law including the provision of a written statement of the main terms of employment for the claimant.  The respondent company did not have a pre-determined or settled disciplinary policy.  The company appeared to have a close knit and stable group of employees with management placing a high element of trust on their employees in the discharge of their duties. 

12.	During his employment the claimant was the main person delegated by management to travel to locations off site to repair and replace tyres or batteries.  This job carried responsibility for handling cash and for providing post completion work details to the office based staff so that account customers, amongst others, could be correctly invoiced on a monthly basis.  The employee who discharged this office based role regarding accounts and receipt of cash was mainly Kevin McCool, particularly in the later months of 2016. 

13.	There was one other employee, named Conor, who discharged this off site role performed by the claimant.  Conor usually only performed the role when the claimant was on leave or unavailable due to other commitments.  This off site role placed the claimant in a regular role of handling receipt of cash payments compared to other employees.  The respondent’s case, which was not disputed, was that most of the persons contacting the respondent company in respect of a break down vehicle would be account customers.  A likely cash customer ringing in regarding a break down would often, but not always, be recorded in the Daily book – with their vehicle registration number, location and contact number.  

14.	The respondent company did not produce at hearing any written cash handling procedures or policies and none appear to have been provided to the claimant.  There was a notable lack of consistency regarding the details inputted on the Job Dockets, in relation to off-site tyre or battery repairs or replacements, provided to the tribunal irrespective of whether they were completed by the claimant or another employee. 

15.	The respondent company did not provide evidence of operating any regular or periodic quality control in respect of the completion of Job Dockets with all requisite details.  There was no written evidence of any instruction given to staff by the respondent company as to how they required the dockets to be completed or payments off site to be handled.  However the claimant during the investigation meeting on 6 February 2017 described a procedure which aligned with the evidence of Mr McCool as to the required procedure where work was conducted off site for clients, in particular when paid by cash he would “do up a docket and bring it in” (A97).  Both parties agreed, despite the lack of written instruction, that details of the work or parts provided were to be inserted on the Job docket and a copy of the docket or the booklet with the relevant job number delivered to the office upon return to the work place accompanied by any payment received off-site.

16.	The respondent company operated a monthly invoicing system based on inputting the job docket recorded details into the computerised invoicing/account management system.  There was a conflict of evidence between the parties as to whether a client dealt with off-site was to be provided with a record, at the time of the work being completed, including parts provided and the costs of such work or parts.  In the absence of the customer being provided with one of the two copies available from the Job Docket booklet, there appeared to be no other receipt or record documentation held by the claimant to provide to a customer that detailed contemporaneously the work completed, cost of the work or a receipt of payment received. 

17.	The respondent’s accounting system produced a statement of outstanding amounts by reference to periods outstanding from 30 to 180 days.  Where on the first invoice the respondent company was aware that the amount had been paid, the invoice was issued by the computerised system as a receipt for the payment for the work recorded and any parts provided. 

18.	The respondent company, prior to October 2016, had Kevin McCool and occasionally his parents, working in the on-site office, and responsible for receipt and recording of cash payments as well as other office duties.  The office duties included receipt of incoming calls for off-site repair or parts and inputting details of job dockets on the accounting system.  By October 2016, the senior McCool’s were less in the office due to health matters.  Kevin McCool was the main contact for off-site enquiries as he was based in the depot and received most of the incoming calls. 

19.	Kevin McCool produced at hearing a “Daily book” (R 4) which he and others used to record incoming calls and quotes provided to the client as well as a record of parts or stock required.  The book was not a complete record of incoming calls or completed work conducted by the respondent company.  However it did contain a record of an incoming job requested by Karen Healy, on 24 October 2016, in respect of a vehicle VRN EIG 1158. 

20.	It was not disputed by the claimant that he attended and conducted the works to the vehicle EIG 1158 and signed a job docket number 5059 in regard to same.  The tribunal accepted the evidence of Kevin McCool that upon the claimant’s return to the business premises he spoke to the claimant about payment for the work completed and was advised that payment was to be made later by either the female client or her ‘grandfather, Eddie Cook’ calling down to pay the bill.  While the claimant, in evidence, claimed ‘no recollection’ of such a conversation, the evidence of Kevin McCool is supported by the fact that from within the same Job Docket booklet, two dockets, serial numbers 5059 and 5060, were completed and dated on 24 October 2016 containing matching details of work and parts carried out at the same location.  Serial number 5060 includes the name ‘Eddie Cook’, the person allegedly named by the claimant to Kevin McCool as the ‘grandfather’, a person whom Kevin McCool was not acquainted with prior to this date.  

21.	At the end of October 2016 or start of November 2016, an invoice was issued to the respondent’s customer, a Karen Healy, regarding outstanding monies for work completed on vehicle VRN EIG 1158 on 24 October 2016.  Ms Healey contacted the respondent company and advised Kevin McCool that she had paid for the work done at the time and that she possessed a receipt.  Kevin McCool requested from 
Karen Healey the receipt she alleged was proof of her payment.  Karen Healey provided the docket carrying serial number 5059.  It was the white copy of the job docket which was the top copy removed from the Job Docket booklet.  

22.	Kevin McCool did not conduct any immediate investigation into stock deficiencies or accounts where work had been completed by the claimant.  There was no examination or inspection conducted of the Job docket booklets held by the respondent company, either during the internal investigation or the disciplinary hearing conducted with the claimant.  Subsequent to the dismissal the yellow copy of this docket serial 5059 was found to be missing from the booklet.  None of the yellow copies should be absent from the booklet.  The yellow copy of a serial number 5060 was present in the relevant booklet and while it did not contain the vehicle registration details, the location, parts and work detailed were the same as that recorded in the Daily book with Ms Healey’s details.  Both dockets referred to the same date 
24 October 2016.  The claimant accepted that he wrote and signed both dockets.

23.	At hearing a number of discrepancies in the docket booklets were highlighted such as both white and yellow dockets missing (serial number 5013), multiple dockets for the same date, 13 October 2016, and same vehicle with identical products and work completed (serial numbers 5035 and 5048).  Further dates recorded on the dockets immediately subsequent to 5035 were dated in August and September 2016, despite 5035 bearing the date of 13 October 2016.  The duplicate copies of various job dockets were not identified until the relevant booklets were examined and produced to the tribunal panel during the hearing. 

24.	During 2016, and especially from March 2016 onwards, an account client of the respondent company, Robert McDaid, was receiving account statements in respect of works done off site which appeared outstanding for periods up to and exceeding 180 days.  There was no evidence of any follow up action from Kevin McCool with 
Mr McDaid regarding these outstanding amounts other than to issue the monthly invoice indicating the sums outstanding. 

25.	The claimant was married to Kevin McCool’s sister.  They suffered martial breakdown on 15 December 2016.  It was not disputed that the claimant went absent from his employment without the prior agreement of his employer for a 24 hour period and then communicated with Kevin McCool by text on the 17 December 2016 of his intention to take leave and return to work on Monday 19 December 2016.  Kevin McCool suggested to the claimant that he avail of additional leave and arrangements were settled for a meeting at the respondent’s premises on 22 December 2016. 

26.	The discussion held on 22 December 2016 was disputed by the parties and no contemporaneous note was made by either party.  The tribunal concluded that the most accurate record of the discussion was contained in a series of texts between the claimant and Kevin McCool from 21 December 2016 to 9 January 2017, contained in booklet A, pages 78-95.  On the basis of the texts the tribunal concluded that the claimant’s salary, after tax, at the very least consisted of £220 with a further sum of £80 which was paid in cash prior to 22 December 2016.  There was also an arrangement up to January 2017 involving the lodging of a sum of £60 into a Credit Union account held by the claimant. 

27.	The claimant requested and provided to Kevin McCool bank account details of a specific account he wished for the sum of £220 and the £80 cash to be paid into from 22 December 2016.  The respondent company made arrangements to pay the £80 into the specified account immediately but a text on the 22 December 2016 indicated that the £220 “will still go to your joint account t... as its to late to change it”.  The respondent, in fact, continued to pay the £220 into the joint account held by the claimant and his estranged wife, the sister of Kevin McCool, post 29 December 2016. 

28.	The claimant produced no evidence of a text to support the allegation made at paragraph 7 of his claim form that he had no access to the joint account.  The claimant appeared to make no complaint about the action of the respondent regarding the £220 until 9 January 2017 when he sent a text to Kevin McCool at 15.05 stating “From this week I want all my wages ie “220 + £80 paid into my account which I gave you on the 22 December 2016”.  Kevin McCool accepted he was incorrect when he said in evidence that the first request to pay the £220 into a specified account, instead of the joint account previously nominated by the claimant prior to his martial breakdown, occurred on 9 January 2017.  The tribunal on the matter of the respondent company having a practice or policy of requiring written notification for an employee to change a nominated account found Kevin McCool neither credible nor convincing. 

  29.	There was clear evidence of payment of the claimant’s salary by the respondent into two accounts both of which were accessible and under the control of the claimant.  No attempt was made by the claimant to withdraw or access the funds which the respondent continued to pay into the joint account held by the claimant and his estranged wife.  It is equally clear that the claimant was aware that £220 was being paid into the joint account.  Following the failure of the respondent company to pay into the same account the sums of £220 and £80, after 9 January 2017, the claimant did not take any action other than to affirm his contract of employment by complying with the actions requested of him in the undated letter issued by the respondent on 12 January 2017 advising him of his suspension pending the conduct of an investigation with a view to establishing whether misconduct warranting disciplinary action had occurred [A page 57].  The claimant did not treat this failure as a fundamental breach of contract nor did his replying letter make any reference to the payments of £220 into the joint account as a breach of contract or unlawful deduction of wages.

30.	An investigation into the conduct of the claimant had not been formally commenced in advance of the 22 December 2016 meeting between the claimant and Kevin McCool.  It was clear by 9 January 2017 that Kevin McCool had been conducting an investigation into the conduct of the claimant.  The investigation concerned off-site jobs completed and the methods of payment made regarding those accounts.  A text by Kevin McCool on 9 January 2017 at 15.16 (A page 90) refers to having letters from customers regarding payments made and which the company records as outstanding.  The text dated 9 January 2017 confirms that Kevin McCool’s investigation must have commenced between the 22 December 2016 meeting and 9 January 2017.  The decision to suspend the claimant communicated by letter undated, but issued on 12 January 2017, was taken by Kevin McCool.  His investigation was conducted without reference to any professional human resources input or guidance. 

31.	It was not until 16 January 2017 that Kevin McCool sought and received outside human resources input from HR Team Limited when he met with both Martina McAuley and Breda Cullen. 

32.	The investigation into the conduct of the claimant as an employee of the respondent did not occur because of the martial breakdown between the claimant and Kevin McCool’s sister.  The martial breakdown in itself could not lead to a dismissal in the absence of evidence of misconduct concerning work done or completed off-site and payments received or recorded by the claimant.  The letter from the claimant (A page 56) provides evidence that the claimant was prepared to discuss an exit from the company on “terms that are acceptable to both me and you”.  The decision was taken by Kevin McCool to move forward on the investigation rather than agree with the claimant some terms of dissolution of the working relationship between the claimant and the respondent company.  

33.	The respondent had grounds to commence an investigation once the respondent was in receipt of the allegation from Karen Healy that the account had been paid on the date the work was completed and the contrary information provided by the claimant, regarding payment yet to be tendered in respect of that work.  Kevin McCool produced a document asserting payment had been made on 24 October 2016 signed by Karen Healy to Martina McAuley when she was conducting a formal investigation concerning misconduct on the Karen Healy account by the claimant. 

34.	The investigation into the claimant’s handling of payments for customers off site had been initially conducted by Kevin McCool until in February 2017 he was advised by Martina McAuley and accepted that it would be better for someone else to conduct an ‘impartial and independent’ investigation hearing given he was a critical witness to the events under investigation.  Martina McAuley took over the conduct of the investigation including the hearing on 6 February 2017.  Martina McAuley was provided with copies of the docket which recorded the work completed on Karen Healy’s vehicle.  It is clear from the note of the investigation hearing that the claimant recollected the interaction with Karen Healey as it ‘rang a bell’ (A page 97).  It is also clear that the claimant did not provide any information to the investigator to assist or explain the conflicting information provided by Kevin McCool, on behalf of the respondent, regarding earlier statements made by the claimant to Kevin McCool pertaining to when payment would be made and the reference to Eddie Cook as a potential payee.  The docket with serial number 5060 which carried the name of Eddie Cook was not produced either at the investigation hearings or the disciplinary hearing.

35.	The complaint against the claimant in respect of the account of Robert McDaid was also provided by Kevin McCool to Martina McAuley.  The document produced was a letter on plain paper rather than business headed notepaper.  It referred to three incidents of work completed which had resulted in invoices issuing showing payment outstanding in excess of a 6 month period.   The relevant monthly or repeated invoices referred to in the letter were not provided by or sought from the respondent during the investigation or disciplinary proceedings.  There is no evidence as to any enquiry being made with Kevin McCool as part of the investigation as to the reasons for the delay in chasing up the outstanding invoices.  There is no evidence of anything but a cursory examination of the respondent companys computerised account invoicing system, by Martina McAuley.  The computer account for Robert McDaid showed there was a deficit. 

36.	The investigation report prepared by Martina McAuley provides clear details of the relevant evidence resulting in her conclusions in respect of the Karen Healy account that it warranted a disciplinary hearing.  However there is little, if any, detail in the same report of the relevant evidence concerning the allegation from Robert McDaid that he had paid cash for the services received on the three identified dates.  Martina McAuley’s investigation report included a conclusion in respect of the allegation concerning the 24 October 2016 event and a specific recommendation that a disciplinary hearing take place in respect of the mobile fitting job at Creggan Country Park, which involved Karen Healy only.  There was no recommendation specifically contained regarding the Robert McDaid account other than the conclusion of the report (B 109) “that there is substance behind the allegations”. 

37.	Both the claimant and Kevin McCool agreed, during the investigation hearing, throughout the disciplinary process and the tribunal hearing, that Mr McDaid generally paid in cash when work was completed off site unless he was not present when the work was completed.  

38.	The claimant’s repeated answer to the alleged discrepancy in the accounts of Karen Healy and Robert McDaid was a lack of recollection as to the history of interaction with those clients. 

39.	The claimant made no mention during the investigatory process into his conduct of the alternative motivation mentioned during the disciplinary hearing conducted on 21 March 2017.  The alternative motive alleged was that the respondent company created or made up these false allegations due to the claimant’s marital breakdown with Kevin McCool’s sister. 

40.	The disciplinary hearing held on 21 March 2017 was conducted by Breda Cullan, a partner in the firm HR Team Limited with Martina McAuley.  Martina McAuley attended as notetaker.  A letter dated 15 March 2017 (A page 68) advising the claimant of the date for a disciplinary hearing and itemising the documents which were enclosed as relevant evidence of the alleged misconduct was sent to the claimant.  The claimant accepted the letter was received in advance of the disciplinary hearing.  The tribunal did not find credible the claimant’s assertion, made at the hearing but not in his prepared statement of evidence, that the documents stated to be enclosed with the letter were not in fact enclosed.  The note of the disciplinary hearing records the claimant providing to Breda Cullan an affirmative answer to her enquiry whether the relevant documents had been received.  Additional copies of the relevant documents were also produced during the disciplinary hearing (A page 111). 

41.	The claimant, during the Disciplinary hearing, issued a clear rebuttal to the allegation he was taking cash from customers and not accounting or providing that cash to the respondent.  The evidence in Breda Cullan’s possession consisted of statements of Karen Healy and Robert McDaid; both provided by Mr McCool.  No independent or direct check was made with the makers of the statements by Breda Cullan.  
Breda Cullan was unaware that Martina McAuley had made no independent enquiry as to the vires of the statements.  Both Martina McAuley and Breda Cullan were advised by the respondent company they did not wish to have their customers contacted further.

42.	The note of the disciplinary hearing (A page 112) records the assertion by the claimant that the disciplinary action was motivated by the marital breakdown between the claimant and Kevin McCool’s sister.  There is no evidence that any enquiry was made by Breda Cullan with Kevin McCool regarding this allegation.  There is no evidence of an explanation being sought from Kevin McCool for the delay in addressing with Robert McDaid the invoices which were outstanding for nearly a year by the date of the disciplinary hearing. 

43.	Mr McCool’s statement before the disciplinary hearing records ‘at end of month we contact all customers regarding outstanding debts’.  Breda Cullan conceded during the tribunal hearing that there should have been an enquiry made regarding the McDaid invoices.  The McDaid invoices had not been made available or requested for the disciplinary hearing.  No enquiry was followed up with the respondent company once the disciplinary hearing concluded.  Mr McDaid did not attend to give evidence at the tribunal hearing despite making a statement of evidence, at the request of the respondent company through the director Kevin McCool, for the tribunal hearing.  

44.	The documents provided at the tribunal hearing of the relevant invoices for the McDaid account do not record “SD” as the initials of the person conducting the work in respect of the three outstanding accounts.  There are also initials CM and KM recorded on the relevant invoices.  The underlying job docket information was not sought or provided as either part of the investigation or the disciplinary hearing.  The disciplinary hearing is recorded as taking 12 minutes. 

45.	Following this disciplinary meeting, Breda Cullan wrote to the claimant on 
24 March 2017 setting out her finding that the claimant should be summarily dismissed due to gross misconduct as there was evidence to substantiate the allegations that Karen Healy had made a direct cash payment on 24 October 2016 and it was not submitted to the office as well as the allegation from Robert McDaid that he was being invoiced for outstanding monies which he had paid cash for the work completed by the claimant on the three itemised dates.  The claimant’s explanation that he could not recollect the jobs or where the cash went was found “unacceptable”.  She wrote;

“To this end the Company has lost trust in you to responsibly handle cash as per the company procedures and it is therefore on that basis not possible for the working relationship to continue”.

  	The claimant accepted in cross examination that the letter of dismissal gave a fair reflection of his responses to the questions put to him by Breda Cullan in regard of the allegations concerning Karen Healy and the Robert McDaid account.  The claimant was advised of his right to appeal which he decided to exercise.

46.	The appeal was conducted and determined by a third member of HR Team Limited, Martin Page, on 10 April 2017 and lasted 35 minutes.  There was no mention in the claimant’s letter of appeal dated 27 March 2017 (A page 72) that the claimant, as alleged at the tribunal hearing, had not received relevant documents in advance of the disciplinary hearing.  The claimant’s appeal letter can be summarised as the real reason for his dismissal was ‘marriage breakdown ... allegations were then ‘wrecked up’ from months ago ... without sufficient evidence to dismiss ... process was a sham’.  During the appeal hearing the case made by the claimant in summary was ‘all these allegations have come up but they are skipping over the main fact the only reason they want me out of their premises’ (A page 114).  There was no specific mention in his appeal hearing that the allegations of failing to pass on payments received from Karen Healy and Robert McDaid were untrue or false. 

47.	Martin Page was not available to provide evidence to the tribunal as he appeared to be untraceable.  Martin Page was employed briefly with HR Team Limited, according to the evidence of Breda Cullan, from 1 April 2017 and left the firm on 1 May 2017, some weeks after the claimant’s appeal hearing.  The claimant represented himself at the appeal and Martina McAuley attended as notetaker.  The claimant alleged that he had a meeting with Kevin McCool and concluded ‘it was not a good idea that I work here’ following the ending of his relationship with a family member.  The claimant contended in his appeal that ‘if you go over all the documents that I have done they will have my signature if I’ve been paid’ (A page 115).  The claimant contended that it was Kevin McCool’s word against his and there is no proof that he didn’t pay them the money.  Having considered all the matters Martin Page affirmed the decision to dismiss.  He stated towards the end of his appeal outcome letter dated 18 April 2017 (A 74):

 “There is a reasonable belief, based on the evidence found during the investigation process, that there was more than one incident of negligence when you were responsible for handling cash on jobs ..there is a reasonable belief that on 24th October 2016 you were trusted with a sum of money for a job...you failed to return this sum of money to the office.” 

48.	The letter from Martin Page in respect of the McDaid account allegation recorded “there were a further 3 occasions ... where cash allegedly was not returned to the office.”  There does not appear to be a finding recorded by Martin Page whether the allegation was found to be established on a reasonable belief as occurred in respect of the Karen Healey allegation.

49.	The disciplinary hearing had not made all reasonable enquiry into the allegation in respect of the outstanding account of Robert McDaid.  There was clear evidence against the claimant in respect of the Karen Healy account of failing to tender cash after receipt of same from a client as well as attempting to mislead his employer as to the events of that day regarding the payment tendered.  The claimant at no time provided another explanation for the conflict between the assertion from Karen Healy of payment made and the payment recorded as unpaid on the respondent’s accounting system. 

50.	The claimant did not dispute during the disciplinary process Karen Healy’s assertion that payment had been tendered on the date the work had been completed.  The tribunal noted there was equally no clear dispute on that issue when Karen Healy gave evidence at the tribunal hearing.	 

51.	There were multiple documents produced at the tribunal hearing that were available to the respondent at the time the allegations were being investigated or the disciplinary hearings were progressing.  Those documents were not produced to those conducting either of those hearings.  These documents included the original docket books, the Daily book maintained by Kevin McCool and the past invoices produced on the respondent’s computerised invoicing system in respect of Robert McDaid.  These documents, particularly the dockets, had duplicate entries of specific jobs completed by the claimant.  Some had the top and bottom docket removed from the job docket book. 

52.	There was no evidence in the docket booklet produced to the tribunal to support the claimant’s repeated assertion made, during the investigation and disciplinary hearing, as to his practice when he received cash from a client at the off site location to record the words ‘paid in full’.  None of the dockets produced to the tribunal relating to the relevant dates at issue carried those words or alternate words such as ‘paid in cash’.  Examples of duplicate dockets did not just concern the Karen Healy/ Eddie Cook dockets (5059 and 5060) but also produced at tribunal hearing were dockets 5053 and 5048.  Those dockets concerned work completed for a Joe Jackson for the same date and involving the same work and parts.  The claimant accepted that each docket bore his signature. 

53.	The claimant provided no explanation for the missing yellow bottom copies of dockets, yet accepted he was the main employee working off site and using these job docket booklets.  In the single Job docket booklet produced to the tribunal there were 19 dockets between numbers 5045 to the docket bearing the number 5064.  All 19 dockets were either signed by the claimant or carried his writing of the job details.  None of the dockets accorded with the assertion in the claimant’s prepared statement of evidence that where payment is made he wrote ‘paid in full’.  A number of these dockets recorded work completed on specific dates but the dates inputted for the work completed were not sequential. 

54.	The claimant sought alternative employment mainly for driving jobs but was unsuccessful for a number of months.  He signed on as unemployed on 4 April 2017 and signed off as having found employment by 7 July 2017.  Documentary evidence was provided that the claimant obtained employment with Northwest Restaurants Ltd t/a McDonald’s on 23 May 2017.  The claimant also undertook a security course which provided a second occasional source of income from Fortune Enterprises as of December 2017.   He lodged his claim before the industrial tribunal with it received in the Office of the Industrial Tribunals and Fair Employment Tribunal on 23 June 2017.  His claim form alleged that he had been dismissed for serious misconduct having had no previous warnings.  His claim form alleged the serious nature of the allegations placed upon the respondent a responsibility to carry out a detailed and thorough investigation.  

55.	Both parties made submissions in writing regarding the issues to be determined by the tribunal.  In summary the claimant contended the burden is on the respondent to establish the real reason for dismissal, that the respondent had not discharged that burden, that there are inconsistencies in Kevin McCool’s evidence, that the external company conducting the investigation and disciplinary hearings relied solely on information provided by Kevin McCool and made no independent check or enquiry on its veracity and accordingly the dismissal was unfair in law as there was not a reasonable investigation as required by law to provide reasonable grounds on which to sustain belief in the misconduct alleged against the claimant.  The alleged breach of contract was unlawful deduction of wages arising from the respondent’s actions in continuing to pay the sum of £220 into the joint account of the claimant and his wife, when the claimant requested the respondent on 22 December 2016 to pay that sum into a different account held in the claimant’s name only.  The claimant also included a claim for a wasted costs order concerning delay in commencing the hearing on the first day listed for hearing.

56.	The submissions of the respondent can be summarised as the claimant was evasive as a witness and sought to hide behind limitations of memory, that the allegation by Karen Healy that she had paid her account occurred before the martial breakdown in December 2016 and the claimant’s concession he could have provided Kevin McCool with the statements regarding Eddie Cook etc provided reasonable genuine belief of the misconduct.  The claim from the claimant that the allegations were made up because of the martial breakdown with Kevin McCool’s sister was not made during the investigation but occurred during the disciplinary hearing.  While the respondent conceded there may well have been certain matters that the company could have better addressed in the process any deficiencies were not of such a level to effect the fairness of the decision to dismiss.  In regard to the alleged breach of contract and/or unlawful deduction of wages it was submitted that there was no breach of contract and even if there was no loss was sustained.  Further the claim of unlawful deduction of wages is unsubstantiated as the wages were paid into the account which had been used by the respondent previously and to which the claimant had access.  There was in fact no deduction and the sum owing was paid out of the respondent’s funds into an account held by the claimant and the claimant knew this to be the case and continued to affirm his contract of employment.  While the respondent accepted there had been a failure to provide a statement of main terms and conditions of employment as required by law, there should be no award made in respect of that breach unless the tribunal found in favour of the claimant in respect of the claim for unfair dismissal, breach of contract or unlawful deduction of wages.  The respondent resisted the claimant’s application for a wasted costs order.

57.	The claim for a wasted costs order was in respect of the hearing date 21 March 2018.  On that date and the following day, 22 March 2018, there were delays caused due to either witness issues or deficiencies in the prepared statements of evidence produced in compliance with a Case Management Direction.  The respondent’s evidence did not progress in a timely manner on 21 March 2018 due to the absence of witnesses whose statements had been served on the claimant.  On the 22 March 2018 the hearing did not progress in a timely manner due to evidence pertaining to the alleged unlawful deduction of wages claim not being included in the claimant’s prepared statement of evidence lodged with the tribunal.  The hearing had to be delayed to allow a further statement of evidence to be prepared and submitted by the claimant.  The tribunal was not impressed with the effectiveness of the preparation of either of the parties during the early days of hearing set aside for this claim.

THE RELEVANT LAW

Unfair Dismissal

58.	The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (as amended).  In particular in this case we refer to Article 130 which provides as follows:-

“130	(1)	 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.

	(2)	 A reason falls within this paragraph if it - 

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

(b)	relates to the conduct of the employee

(ba)	is the retirement 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 of on that of his employer) of a duty or restriction imposed by or under a statutory provision …
(3)	(a)	In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.

	(4)  In any other case where the employer has fulfilled the requirements of 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 of the administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

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

59.	The leading authority on unfair dismissal in Northern Ireland for some time is the case of Patrick Joseph Rogan  v  South Eastern Health and Social Care Trust [2009] NICA 47, as approved and restated in McCann v Antrim Borough Council [2013] NICA 7.  Like the present case, Rogan related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.

60.	The Court of Appeal in Rogan considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin  v  CityBus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery in Foley  v  Post Office, HSBC Bank plc (formerly Midland Bank plc)  v  Madden [2000] ICR 1283 and Sainsbury’s Supermarkets Ltd  v  Hitt [2003] ICR 111.

61.	The nub of the test which must be applied in unfair dismissal cases was stated by Arnold J in British Home Stores as follows:-

	“First of all there must be established by the employer the fact of that belief (ie the belief in the misconduct); that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds on which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those two matters, we think, who must not be examined further.  It is not relevant, as we think that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only on the basis of being “sure” as it is now said more normally in a criminal context, or, to use the old fashioned term such as to put the matter “beyond reasonable doubt”.  The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, the conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”  

62.	The Court in Rogan cited further with approval the opinion of Lord Carswell in               Re D [2008] UKHL 33 where it was noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged.  While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact (see paragraph 17 of the judgment).  

63.	A number of these authorities are referred to in the more recent decision of the Northern Ireland Court of Appeal in Connolly (Caroline) v Western Health and Social Care Trust [2017] NICA 61 which at paragraphs 27 and 28 of the majority decision rehearses many of the principles extrapolated from the cases already listed in the earlier paragraphs above.  Essentially the Connolly decision requires the tribunal when determining whether the decision to dismiss fell within the band of reasonable responses to establish whether the decision of the employer was reasonable in the factual circumstances of the case to conclude that the conduct of the employee is capable of amounting to gross misconduct, that the employer had reasonable grounds for his belief that the employee committed such misconduct, that the misconduct amounted to a deliberate flouting of the essential contractual conditions of the contract of employment by the employee and that the decision to dismiss was a ‘fair’ sanction when considered ‘in accordance with equity and the substantial merits’ of the factual circumstances pertaining between the employer and the employee. 

64.	Indeed the Connolly decision is little different from Andrew James Taylor v OCS Group Limited [2006] EWCA Civ 702 that described the task of the tribunal to “consider the procedural issues together with the reason for the dismissal, as they have found it to be.  The two impact upon each other and the ET’’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.  So for example, where the misconduct which founds the reason for the dismissal is serious, an ET might well decide (after considering equity and the substantial merits of the case) that, notwithstanding some procedural imperfections, the employer acted reasonably in treating the reason as a sufficient reason to dismiss the employee.”

65.	This approach was endorsed by Lord Justice Elias in his detailed judgment in the case of Turner v East Midland Trains Ltd [2012] EWCA Civ 1470.  At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the “band of reasonable responses” test.  He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer.  He made two important observations about the test.  The first was that it must not be confused with the classic Wednesbury test whereby a court can interfere with a substantive decision of an administrator only if it is perverse.  The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case.  He referred to his judgment in A v B [2003] IRLR 405 where he said:  

“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”.  

66.	The Court of Appeal in England and Wales in Newbound v Thames Water Utilities Limited [2015] EWCA Civ 677, where Bean LJ observed:

““The band of reasonable responses” has been a stock phrase in employment law for over thirty years, but the band is not infinitely wide.  It is important not to overlook s.98(4)(b) of the 1996 Act [The GB equivalent of Art. 130 (4)(b) of the 1996 Order] which directs employment tribunals to decide the question of whether the employer has acted reasonably or unreasonably in deciding to dismiss “in accordance with equity and the substantial merits of the case”.  This provision, originally contained in s.24(6) of the Industrial Relations Act 1971, indicates that in creating the statutory cause of action of unfair dismissal Parliament did not intend the tribunal’s consideration of a case of this kind to be a matter of procedural box-ticking ... an employment tribunal is entitled to find that dismissal was outside the band of reasonable responses without being accused of placing itself in the position of the employer”.  (para 61 of the judgment).

67.	It was also noted in Adesokan v Sainsbury Supermarket [2017] EWCA Civ 22; [2017] I.C.R. 590; [2017] I.R.L.R. 346; when determining whether there had been gross misconduct, the focus was on the damage to the relationship between the parties.  Dishonesty and other deliberate actions which poisoned the relationship would obviously fall into the gross misconduct category, but in an appropriate case so too could an act of gross negligence.  The question for the judge was, therefore, whether the employee's negligent dereliction of duty was "so grave and weighty" as to amount to a justification for summary dismissal, see Neary v Dean of Westminster [1991] I.R.L.R. 288 applied.  In Adesokan the judge was entitled to find the employee's failing or serious dereliction of duty constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship.

68.	The tribunal noted that Harvey on Industrial Relations and Employment Law indicates that dismissals for a first offence may be justified in three rather different circumstances:-

(1)	Where the act of misconduct was so serious (gross misconduct) that dismissal is a reasonable sanction to impose notwithstanding the lack of any history of misconduct;

(2)	Where disciplinary rules had made it clear the particular conduct will lead to dismissal; and

(3)	Where the employee has made it clear that he is not prepared to alter his attitude so the warning would not lead to any improvement.  It is also noteworthy that in cases of theft or dishonesty a single act of misconduct may justify summary dismissal even though the events concerned were small but there was deliberate dishonesty (see McCorry v McKee t/a Heatwell Heating Systems [1983] IRLR 414).

[Harvey, Div D paras 1550 and following].	

69.	There is also the guidance given by the Labour Relations Agency in the Code of Practice on Statutory and Disciplinary and Dismissal Procedures.  The Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures says at Paragraph 8:-

“In deciding cases of unfair dismissal, tribunals will take account of an employer’s size and administrative resources when deciding if he/she acted reasonably.  In small organisations it is recognised that it may not be practicable to adopt all the detailed good practice guidance set out in this Code.  However, all organisations, regardless of size must follow the minimum statutory dismissal and disciplinary procedures where these are applicable.”

70.	The Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures says at Paragraph 9:-

“When a potential disciplinary matter arises, the employer should make necessary investigations to establish the facts promptly before memories of events fade.  It is important to keep a written record for later reference...where an investigatory meeting is held solely to establish the facts of a case, it should be made clear to the employee involved that it is not a disciplinary meeting.”

71.	The Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures says at Paragraph 15 the employee at the start of the formal disciplinary process should know the nature of the allegation against them including normally copies of any written statements.  Paragraph 18 states that the employer having restated the complaint against the employee and go through the evidence gathered should allow the employee “to set out his case ... allowed to ask questions, present evidence, call witnesses and be given an opportunity to raise points of information provided by witnesses”.

72.	The Labour Relations Agency Code of Conduct on Disciplinary and Grievance Procedures says at Paragraph 59:-
	
“Rules should be specific, clear and recorded in writing ...”

Unlawful deduction of wages

73.	 In regard to the claimant’s claim of unlawful wages deductions, Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) provides that:
 
 "An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction".

Article 45(3) of the 1996 Order provides that:

"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion". 

74.	The enforcement provision reads (so far as material) as follows:
 
"(1) A worker may present a complaint to an employment tribunal —

(a)	that his employer has made a deduction from his wages in contravention of Article 45…".

Article 56 (1) (a) provides that where a tribunal finds such a complaint well-founded it shall make a declaration to that effect and order the employer to pay the worker the amount of the deduction.

75. 	Article 59 of the 1996 Order provides in elaborate terms the definition of “wages” but for present purposes all that is relevant is head (a) that, in relation to a worker, means: "... any sums payable to the worker in connection with his employment, including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...", subject to certain statutory exceptions listed in sub-section (2) which do not apply to the facts of this case.  Sub-sections (3)-(5) are ancillary and need not be set out.  There is no definition of "deduction"; nor is there any such definition elsewhere in the statute.

76.	The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned.  It should be mentioned for completeness that the Court held that the claim in relation to pay in lieu of notice did not fall within the terms of the Act, because it was in its nature a claim for damages and an unliquidated claim of that nature could not constitute "wages".  The case of Delaney went to the House of Lords on that issue ([1992] 1 AC 687), where the decision was upheld; but not on the issue about the first two deductions.

77.	The principal issues arising in an alleged unlawful deduction of wages claim will be whether a worker has been paid what was "properly payable" and if not, whether paying the lesser amount (i.e. the deduction) has been authorised in accordance with the stated requirements.  One of the statutory exclusions in Article 46 from the scope of the protection offered by Article 45 is where the employer claims the deductions were made by reason of (a) Overpayment (of wages or expenses) or (b) Disciplinary proceedings.  A recent statement of the law on the equivalent England and Wales provisions (s 13) to Article 45 is found in Agarwal v Cardiff University and others [2018] EWCA Civ 2084 which records: 

“The first question in a s.13 claim was whether there had been a deduction within the meaning of the section.  That depended on s.13(3), and specifically on whether the sum claimed was "properly payable".  That meant payable pursuant to a legal obligation, typically but not always arising under the contract of employment.  Second, if there was a question as to whether the sum was properly payable, that question had to be resolved by the employment tribunal.  That necessarily meant that it would need, in a case where that was the issue, to resolve any dispute as to the meaning of the contract relied on.  Third, once the tribunal had decided whether there had been a deduction, it had to consider whether it had been authorised”.

78.	The right to pay is regarded as a fundamental contractual entitlement such that, in certain circumstances, a refusal to pay wages due may justify an employee resigning and claiming constructive dismissal.

Breach of Contract

79.	The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 (1994 Order) confers jurisdiction on industrial tribunals to hear claims for breach of contract.  Rule 1 of the 1994 Order provides:

“(1)	...

(2)	In this Order— 

“contract claim” means a claim in respect of which proceedings may be brought before an industrial tribunal by virtue of article 3 or 4;”

Article 3 of the 1994 Order provides:

“Proceedings may be brought before an industrial tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if— 

(a)	the claim is one to which Article 57(2) of the No 2 Order applies and in respect of which a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine and action;

(b)	the claim is not one to which article 5 applies; and

(c)	the claim arises or is outstanding on the termination of the employee’s employment.”

Article 57(2) of the Industrial Relations (No.2) (Northern Ireland) Order 1976 provides:

“Subject to paragraph (3), this Article applies to any of the following claims, that is to say – 

(a)	a claim for damages for breach of a contract of employment or any contract connected with employment;

(b)	a claim for a sum due under such a contract;

(c)	a claim for the recovery of a sum in pursuance of any statutory provision relating to the terms or performance of such a contract;

being in each case a claim such that a court in Northern Ireland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim.”

80.	A breach of contract claim for deduction of wages will naturally depend upon the specific terms of the contract.  In any such claim, it will be necessary to demonstrate a contractual entitlement to the disputed pay; that such entitlement has been breached; that the breach has not been accepted, and to ascertain the loss which flows from it.  The general law of contract includes terms implied by statute with the object of ensuring certain minimum standards are respected, terms implied by judicial decision for reasons of public policy and a wide range of statutory rights which attach to the status of employee.  Equally while there are five main types of contractual terms those that concern this decision involve express terms (written or oral), implied terms or terms imposed by common law or statute. 

81.	The 1996 Order, Article 118, provides the statutory minimum period of notice required to be given by an employer to terminate the contract of employment of an employee.  In the absence of evidence of enhanced contractual terms, this minimum statutory notice is deemed to be incorporated into any contract of employment.  It is a breach of contract on the part of any employer to fail to provide either pay in lieu of notice or the due notice on termination of employment.  

82.	Implied terms generally concern terms necessary to give the contract business efficacy or arise from the conduct of the parties to the contract or can be implied from custom and practice, in effect where the term is routinely adopted in a particular trade, industry or locality.  A custom and practice has to be “reasonable, notorious and certain” for it to be an implied term.

83.	The common law imposes certain obligations on the parties to an employment contract which are not based on the presumed intention of the parties but rather reflect a judicial consensus that certain rights and obligations are a standard incident of the employment relationship.  Earlier cases suggest a term will only be implied if it passes the test of necessity: Liverpool City Council v Irwin [1977] A.C. 239 but Dyson LJ in Crossley v Faithful & Gould Holdings Ltd [2004] EWCA Civ 293 observed “rather than focus on the elusive concept of necessity, it is better to recognise that, to some extent at least, the existence and scope of standardised implied terms raise questions of reasonableness, fairness and the balance of competing policy considerations”.  The best known example of an obligation that the common law treats as a characteristic feature of every employment contract is the implied duty of trust and confidence as well as the duty to pay wages already referred to above. 

84.	There are also duties which are regarded as standardised obligations of an employee which include a duty to exercise reasonable care in the performance of the employee’s duties; Lister v Romford Ice and Cold Storage Co Ltd [1957] A.C. 555; a duty to obey the employer’s reasonable instructions: Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 W.L.R. 698; and a duty of fidelity and loyalty.  The employee’s duty of fidelity incorporates a number of sub-duties including a duty to be honest with the employer.  The terms of a contract cannot be varied without mutual agreement.  

REASONS AND DECISION

85.	We have considered carefully the evidence put before us and the applicable law.  There was no claim that an “automatic unfair dismissal” arose under Article 130A of the Employment Rights (Northern Ireland) Order 1996 on the ground that the procedure adopted did not comply with the three step statutory procedure set out at Schedule 1 to the Employment (Northern Ireland) Order 2003.  Where the dismissal is not automatically unfair, the burden of proof is on the employer under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 to show the reason for the dismissal and that it was a reason falling within Article 130(2).  If the employer cannot do so, the dismissal will be “ordinarily” unfair.  

86.	The respondent submitted and the tribunal is satisfied that the respondent has established the reason for dismissing the claimant and that it was due to the claimant’s conduct which for the purposes of Article 130(2) is a potentially fair reason for dismissal.  We have considered carefully the case law and are aware that in many cases dismissals for a “first offence” (as in this case) may be considered too harsh a penalty.  We have come to the conclusion that the decision to dismiss the claimant was one which was within the range of reasonable options open to a reasonable employer and that therefore the claimant’s dismissal was not unfair.  Our reasons for this decision are as follows.

87.	The claimant’s representative suggested that the respondent company had not done as much investigation of the matter as they should have done.  We agree that the respondent company could have conducted further investigation but it appeared to this tribunal that such further investigation would not have assisted the claimant or changed the eventual outcome for the claimant.  Firstly in respect of the allegations concerning the Karen Healy account the tribunal was satisfied the respondent had done as much investigation as was reasonable in the circumstances, in accordance with the Burchell test.  The query concerning the matter of payment for that job on 24 October 2016 had been raised in a timely fashion by Kevin McCool, specifically on the day the work was completed.  On the 24 October 2016 the respondent was advised by the claimant that payment had not been made by Karen Healy.  There was also differing explanations provided to the respondent by the claimant as to when and how payment would be made.  The claimant, during the tribunal hearing, accepted that he could have possibly provided an explanation that referred to Eddie Cook.  The tribunal found it telling that the claimant did not proffer either at the investigation, disciplinary or appeal hearing details of other persons who might have received monies from him as they are regularly or occasionally in the office instead of Kevin McCool.

88.	We are not satisfied that the respondent had done as much investigation as was reasonable in the circumstances, in accordance with the Burchell test in respect of the allegations regarding the McDaid account.  It was clear there was no reasonable examination of the accounting package being utilised by the respondent or explanation sought for the delay in pursuing accounts outstanding in excess of 6 months.  It was more understandable that the claimant may not have been able to recollect the exact jobs completed in March and April 2016 by the time an investigation is being conducted in February 2017, particularly when both the claimant and the respondent are in agreement that Robert McDaid is a frequent customer and nearly always pays in cash.

89.	The fact that Robert McDaid nearly always paid cash, together with the substantial time spent during the tribunal hearing examining the docket books relevant to the second half of the 2016 year, undermined the diligence exercised by the claimant in the performance of his tasks for the respondent.  The documents were easily and quickly available to the respondent.  The investigation and disciplinary hearings ran from January 2017 to nearly end of March 2017 so it was not a quick or snap decision by the respondent.  Although the docket books had not formed part of the investigation or disciplinary hearing conducted by or on behalf of the respondent, no objection was made on behalf of the claimant to this line of examination and the claimant’s submission refers to at least one of those dockets as evidence to support the claimant’s assertion that it was his practice to provide customers with the white dockets (paragraph 7n).The tribunal did not accept the submission made on behalf of the claimant at paragraph 7m that essentially the respondent removed the missing dockets from the book.  This allegation was never put to the respondent during the five days of hearing.  The claimant accepted both at hearing and in the written submission presented to the tribunal, at paragraph 8, that the allegation was serious and would constitute gross misconduct.

90.	The tribunal found the inconsistent evidence from the claimant as to his dealings with clients was present when the disciplinary process was ongoing.  During the appeal hearing the claimant states the relationship finished on 14 December, he took the Friday off and phoned on the Saturday and requested ‘a few days’.  This is different slightly to the dates provided to the tribunal at hearing concerning the marital breakup and the subsequent contact between the claimant and the respondent.  Also during the appeal the claimant queried specifically the Robert McDaid allegations arising nearly a year later but at the same time stated Mr McDaid ‘always paid cash’ (A 116). The claimant stated to Martin Page ‘I don’t remember the lady paying me.  It’s not to say she didn’t but I don’t remember if she paid me or she paid by card’.

91.	The tribunal noted that during the appeal hearing the claimant advised that ’normally when I give a customer a copy of the document the receipt I take the book in and say that is the invoice for each job.  I did take the invoice into the office because I always do.  First thing I do is tear everything out of the book and take it in because not everyone is paid’ (A 117).  However this was clearly not what had occurred in respect of Karen Healy as otherwise it would not have been necessary for Kevin McCool to be making enquiry with the claimant whether payment had been made.

92.	In Bowater v North West London Hospitals NHS Trust (see above) Longmore LJ referred to the fact that it was the Employment Tribunals to whom Parliament had entrusted the responsibility of making what are “no doubt sometimes difficult or borderline decisions in relation to the fairness of dismissal.”  It is important that we avoid substituting our decision for that of the disciplining employer.  We do however have to make a judgment as to whether or not the employer acted reasonably, bearing in mind that there is a range of reasonable options open to an employer in any given situation.  We bear in mind the authorities quoted including Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 and A v B [2003] IRLR 405, the latter involving a professional working in the caring professions, that serious allegations such as that of criminal behaviour should be the subject of most careful investigation proportionate to the gravity of the charge and potential effect upon the employee but even in the most serious cases “it is unrealistic and quite inappropriate to require the safeguards of a criminal trial”.  The tribunal observed that during the appeal hearing the claimant relied on or asserted that it was Kevin McCool’s word against his and there is no proof that he didn’t pay them the money.  Indeed it appeared to the tribunal that at times during the investigation and disciplinary hearing the claimant preferred not to proffer any alternative lines of enquiry that might exculpate or point towards another explanation than the one proffered by Kevin McCool but act as if any doubt had to be resolved in his favour if the allegation could not be proved.

93.	The claimant contended that Martin Page was a more junior member of the HR firm employed by the respondent to discharge an independent and impartial disciplinary process as requested by the solicitor instructed by the claimant in January 2017.  Mr Page worked only for a month approximately with the HR firm.  The Labour Relations Agency Code of Practice on Dismissal and Grievance Procedures which industrial tribunals are required to take into account when considering relevant cases e.g. unfair dismissal, provides practical guidance to employers, employees and their representatives.  Appeals are dealt with at paragraphs 47-52.

	Paragraph 47 states:

	“Employees who have action taken against them on conduct or capability grounds should be given the opportunity to appeal.  It is useful to set a time limit for an employee to ask for an appeal – five working days is usually enough.”

Paragraph 50 states:

“A more senior manager not previously involved with the case should hear the appeal ....”

The tribunal accepted the undisputed evidence of Breda Cullan that Martin Page was a qualified and experienced employment consultant with 7 to 8 years in human resources.  The minute of the appeal hearing and the letter of outcome provide support for the tribunal conclusion that while Mr Page was not a “more senior manager” than the two directors of the HR firm who acted earlier in this disciplinary process, he appeared to be as equally qualified and experienced as Breda Cullan in the manner in which he conducted the appeal hearing.  The documentary evidence available to the tribunal suggests the appeal hearing was genuine and relatively thorough.  There was no “more senior manager” either in the respondent company once the claimant’s solicitor had challenged the involvement of Kevin McCool or in the HR firm other than Martin Page available to conduct the appeal.
	 
94.	The other matter raised by the claimant’s representative was that dismissal was too harsh a penalty in all the circumstances of the case.  We accept that in most cases it would be appropriate for an employer to act at an early stage when a disciplinary matter comes to light and to deal with it on a graduated basis.  The respondent company had no written disciplinary procedure or company handbook.  That said, the claimant had been working for the respondent in excess of 16 years on a full-time basis.  In fact it is difficult for the tribunal to disregard the multiple occurrences of missing dockets or apparent duplicate dockets that were produced at the tribunal hearing which were not in date sequence.  The more detailed examination of the job dockets which had been completed by the claimant provided further evidence of questionable completion of dockets and little evidence to support his assertion of providing job dockets as receipts for payments received.  It appeared to the tribunal further investigation into the conduct of the claimant in the discharge of his duties would not have been complicated or time intensive.  Those investigations were unlikely to have delayed the claimant’s dismissal at all beyond the date it occurred 
24 March 2017.   

95.	We have considered this matter carefully.  The claimant was well aware and indeed conceded in cross examination that his job involved the handling of cash every day potentially and that in such a post if the employer lacked confidence in the employee to handle cash with integrity, it would be reasonable to decide to dismiss that employee.  The claimant acknowledged all of that in cross-examination.  It may seem harsh to dismiss for a first offence, but as Harvey makes clear, where the act is one of gross misconduct, such as an act involving dishonesty, a single act of misconduct may be sufficient.  Another issue to consider in this case is the clear breakdown of trust and confidence in the employee which is specifically referred to in the letter advising the claimant of his dismissal.

96.	The test is not whether we would have dismissed the claimant in this situation: the test in the words of Lord Wilson in Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 is a two part inquiry on the part of the tribunal.  The first part concerns whether the employer has shown both the reason for dismissal and that the reason relates to the employees conduct … or otherwise justifies dismissal (paragraph 16 of that judgment).  The second part of the tribunal enquiry concerns whether or not, in all the circumstances pertaining to this case including equity and the substantial merits of the case it was reasonable for the respondent to treat that reason as sufficient reason to dismiss the claimant.  This tribunal is satisfied, on the balance of probabilities that the respondent had a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct alleged in respect of the Karen Healy job and cash received.  Further there were reasonable grounds for so believing both on the conversation between Kevin McCool and the claimant upon his return from that job, and the subsequent contact between Karen Healy and Kevin McCool including the docket she provided as proof of payment.  It was clear even on the claimant’s evidence that if payment had not been tendered the docket or a docket book, upon his return, should have been provided to Kevin McCool so that an invoice could be generated to issue to Karen Healy. 

97.	The statements of Karen Healy and Kevin McCool produced as part of the investigation provided reasonable grounds in light of the claimant’s responses for that belief.  The claimant accepted he was aware of the basis of the case against him in advance of the disciplinary hearing.  It is difficult to consider the denial of payment received upon completion of the job on 24 October 2016 as anything but wilful and deliberate on the part of the claimant.  The conduct of the claimant in respect of this single allegation is capable of amounting to gross misconduct in circumstances where most of the duties of the relevant employee concern the completion of jobs off site where payment may be tendered off site.  We consider that this is not one of those borderline cases.  

98.	The tribunal found the claimant entirely unconvincing in his explanation that he gave white dockets to all customers whether payment was made to him or not.  The claimant accepted that his employers were entitled to expect him to show himself to be trustworthy.  The claimant’s behaviour in providing false details to Kevin McCool regarding the payment in respect of the work done on Karen Healy’s vehicle by referring to Eddie Cook as a potential payee severely damaged that trust.  The tribunal could find no reason to explain how Kevin McCool could link Eddie Cook to the work conducted on Karen Healy’s vehicle other than it was an explanation tendered to him as he stated some time before the marital breakdown between the claimant and Kevin McCool’s sister.  This fact also undermined the claimant’s assertion that these allegations were made up as part of a sham process to remove him from his place of employment due to that marital breakdown.

99.	It is the view of the tribunal that (a) the decision to dismiss in all the circumstances, fell within the range of reasonable responses open to the employer, and (b) reflecting on the equity and substantive merits of the circumstances of this case it was reasonable for the respondent to treat the conduct of the claimant as sufficient reason to dismiss.  Accordingly the claimant’s claim of unfair dismissal is dismissed.

100.	Further it may be beneficial for the tribunal to indicate that even if the tribunal had been satisfied that there was a procedural deficiency that undermined the “fairness” of the dismissal, the tribunal would still have not been minded to make an award to the claimant in respect of his dismissal as we considered he had fully contributed to the situation he found himself facing in January 2017.  In particular we took notice of Lancaster & Duke Ltd v Wileman UKEAT/0256/17 where Polkey v AE Dayton Services Ltd [1988] A.C. 344 was considered.  The House of Lords in that case was concerned with a dismissal that was characterised as "procedurally unfair".  It is clear that the possibility of a Polkey reduction is not limited to such cases.  There is clear authority that for the purposes of Article 130 (our equivalent to s.123 which was under consideration in Lancaster) there was no sensible distinction between dismissals that were procedurally or substantively unfair, Lambe v 186K Ltd [2004] EWCA Civ 1045, [2005] I.C.R. 307 and Polkey followed and WM Morrisons Supermarket PLC v Kessab unreported applied.

101.	Further the tribunal reflecting on Adesokan v Sainsbury Supermarket [2017] EWCA Civ 22 considered it more than appropriate in the circumstances of this case when determining whether there had been gross misconduct to focus on the damage to the relationship between the parties.  This was a particularly small firm/business organisation.  Dishonesty and other deliberate actions which poisoned the relationship would obviously fall into the gross misconduct category.  As in Adesokan, the tribunal found this an appropriate case to enquire whether such acts could amount to an act of gross negligence and concluded that the claimant’s failings constituted gross misconduct because it had the effect of undermining the trust and confidence in the employment relationship.  

Breach of Contract/Unlawful deduction of wages

102.	A breach of contract claim brought under the 1994 Order enables employees to recover sums due under contracts of employment which arise or are outstanding upon termination of any employment.  The tribunal was not satisfied, on the balance of probabilities that there was any alleged breach of contract in respect of the payment of wages or that there had been any unlawful deduction of wages contrary to Article 45 of the 1996 Order. 

103.	There was no written contract of employment or any evidence detailing verbal contractual terms and conditions regarding the manner of payment of wages.  Clearly there is an implied contractual term, as well as statutory provision, that wages should be paid in the agreed sum for work done by an employee.  The tribunal earlier recorded their concern and doubt regarding the agreed details provided to the tribunal as to the amount of wages due to be tendered to the claimant especially in light of the differing amounts both in the claim form and the texts between the parties set out above.  However, on the agreed wages presented to the tribunal, the tribunal could establish no evidence that any deduction was made. 

104.	The respondent company clearly did not withhold payment of the agreed sum, as the requisite sums left the respondent’s bank account and went to bank accounts carrying the name of the claimant and to which the claimant, in fact and in law, had access.  No evidence was provided of any arrears of holiday pay or other arrears.  In relation to the claim for notice pay, as there was no express contractual term the claimant was relying on the statutory entitlement to be implied into the contract.  However once the tribunal determined that the respondent lawfully dismissed the claimant without notice then this element of the breach of contract also falls to be dismissed.  Accordingly the claims for the alleged breach of contract or unlawful deduction of wages are dismissed.   

105.	The conclusion of the tribunal is that the consequence of the dismissal of those substantive claims is that despite the admitted breach by the respondent of its duties under Article 33 of the 1996 Order to provide an employee within a set period a copy of his main terms and particulars of employment, as there was no finding in favour of the claimant, the obligation under Article 27 (2) or 27 (3) of the Employment (Northern Ireland) Order 2003 to make a minimum award (2 weeks’ pay) does not arise.  The entitlement to any award for any breach of Article 33 is dependent on an award or a finding in favour of the claimant being made in respect of a claim under one of the jurisdictions specified in Schedule 4 of that 2003 Order, which include unfair dismissal.   

Application for a Wasted Costs Order

106.	The claimant made an application under Article 48 (3) (a) of Schedule 1 of the Industrial (Constitution and Rules of Procedure) Regulations 2005 (Tribunal Rules).  The application was made by email to the respondent on 21 March 2018, following delays in commencing the hearing on the first day that this claim was listed 21 March 2018. 

107.	The claim was also listed for 22 March 2018 and the hearing of witness evidence was delayed on that date as well when the claimant’s prepared statement of evidence was missing essential evidence relevant to one of the claims he confirmed as being proceeded with when the hearing commenced – the claim for unlawful deduction of wages.  However the tribunal hearing on the second day had to be suspended to allow details of relevant evidence underpinning the claim for unlawful deduction of wages to be drafted into an additional statement of evidence from the claimant.

108.	The claimant’s submission in the email of 21 March 2018 indicates that “as a result of the respondent’s representative conduct” the claim would require to be scheduled for an additional day.  In fact the case was always listed for three days and in fact clearly both parties had underestimated the time the case would require given that it required five days of hearing.   

109.	The two leading authorities are Ridehalgh V Horsefield [1994] Ch 205 and Medcalf v Weatherill & Another [2002] UKHL 27.  In summary Ridehalgh established the court should apply a three-stage test when deciding whether a wasted costs order should be made, namely (a) whether the legal representative had acted improperly, unreasonably or negligently, (b) whether if so the conduct caused the applicant to incur unnecessary costs, and (c) whether in all the circumstances it was just to order the legal representative to compensate the applicant for the relevant part of the costs in whole or in part.

110.	The three stage test established in Ridehalgh has been held to be equally applicable when a tribunal is considering whether to make a wasted costs order, Mitchells Solicitors v Funkwerk Information Technologies York Ltd [2008] ALL ER (D) 99 (Apr) and Ratcliffe Duce and Gammer v Binns UKEAT/ 0100/08. 

111.	The jurisdiction has been described as draconian and “should not be exercised so as to erode or outflank the immunity from suit accorded advocates in respect of their conduct of proceedings or pre-trial preparations: see Rondel v Worsley [1969] 1 A.C, 191; Locke v Camberwell Health Authority [1991] 2 Med. L.R. 249 and Reg. v. Horsham District Council, Ex parte Wenman, 1 October 1993.  It is clear the jurisdiction is ultimately disciplinary in character and is based on the need to ensure that litigation is conducted with due propriety and that costs are not wasted by the negligent misconduct of litigation. 

112.	Elias P (as he then was) held in Ratcliffe Duce and Gammer, it is clear from both Ridehalgh and Medcalf, as applied in an employment context, that it is not enough simply to establish negligent or other impugned conduct alone.  It is also necessary for a duty to the court (or tribunal) to be shown to have been breached by the legal representative if he or she is to be made liable for wasted costs: see the judgment of Sir Thomas Bingham MR in Ridehalgh and Medcalf where Lord Hobhouse referred to those observations with approval.  Reference was made to Persaud v Persaud [2003] EWCA Civ 394, where the Court of Appeal described this requirement as a need to establish something akin to an abuse of the process of the Court.  In Ratcliffe caution was urged as, “save in the most obvious case, whether conduct is unreasonable, improper or negligent is likely to turn on what instructions the client gave and what advice the representative provided.  Both are covered by legal professional privilege that can only be waived by the client.  Where it is not waived or where there is doubt in such cases, the legal representative is entitled to the benefit of that doubt”.  (see Ridehalgh).

113.	The tribunal noted that throughout the five days of hearing there were evidential deficiencies that arose which at times impeded the smooth and efficient running of this hearing.  Despite a Case Management Direction having issued in advance of the hearing dates making clear all proof of earnings obtained by claimant should be produced, if relevant, to a claim for loss, the requisite proofs of earnings were not available when the claimant was giving evidence.  There was delay in the second day of hearing directly connected to clear omissions within the claimant’s prepared proof of evidence.  It is undeniable that the lack of information obtained in advance of the hearing regarding availability of witnesses the respondent desired to produce did delay the commencement of the hearing on 21 March 2018.  It is clear to the tribunal the time predicted for Kevin McCool’s evidence was always likely to have taken at least a full day of hearing given the hearing was not listed to commence until 11.30 on that date.  It appeared to the tribunal it was always unlikely the missing witnesses would have been reached on that first listing date.  It had already been determined that a third day of hearing was required.  The tribunal was mindful of the cautionary advice tendered in Robinson v Hall Gregory Recruitment Ltd UKEAT/0425/13/BA [2014] that a wasted costs order is an order that should be made only after careful consideration and any decision to proceed to determine whether costs should be awarded on this basis should be dealt with very carefully.  It is clear a wasted costs order is a serious sanction for a legal professional as findings of negligent conduct are serious findings to make. 

114.	The tribunal did not consider that the deficiencies in the preparation of the respondent’s or the claimant’s legal representation fell so far below the standard to be expected that they must equate to “any improper, unreasonable or negligent conduct” by the representatives.  Further the tribunal was not satisfied that any omissions had caused the receiving party to incur extra costs.  More pointedly, even if the tribunal were wrong in these conclusions, as omissions on the part of both legal representatives on the first two days of hearing played a role in delaying the commencement or throughput of the oral evidence to be heard by the tribunal, the tribunal did not consider in all the circumstances of this claim that it was just to order the legal representative of the respondent to compensate the claimant for the relevant part of the costs in whole or in part.

115.	Accordingly the claims of unfair dismissal, breach of contract and unauthorised deduction of wages are dismissed.  The application for a wasted costs order is denied.  The tribunal makes no order in respect of the admitted failure of the respondent to provide to the claimant a statement of main terms and conditions of employment as required by Article 33 of the Employment Rights (Northern Ireland) Order 1996.	

Employment Judge:

Date and place of hearing:	21, 22 & 23 March, 16 April, 25 April, 30 May and 1 June 2018, Belfast.

Date decision recorded in register and issued to parties: