Tierney v Aquinas Diocesan Grammar Schoo... [2010] NIIT 00088

THE INDUSTRIAL TRIBUNALS

CASE REF: 88/09

CLAIMANT: Brian Tierney

RESPONDENT: Aquinas Diocesan Grammar School

DECISION

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

Constitution of Tribunal:

Chairman: Ms WA Crooke

Members: Mr R Hanna

Mr J Kinnear

Appearances:

The claimant was represented by Mr E McArdle, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.

The respondent was represented by Mr M McEvoy, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

SOURCES OF EVIDENCE

1. The claimant gave evidence on his own behalf and the tribunal also heard evidence from Mr Raymond Baxter FCMA FCMI.

2. On behalf of the respondent the tribunal heard evidence from Mrs Diana Press, Mrs Geraldine Gibson, Mr Johnny Webb, Mr James Toolan and Mr Patrick McCartan.

3. The tribunal also had an agreed bundle of documents before it.

THE CLAIM AND THE DEFENCE

4. The claimant complained that he had been unfairly dismissed. The respondent denied this claim.

THE RELEVANT LAW

5. The relevant law is found in the following Articles of the Employment Rights (NI) Order 1996:-

Article 126, Article 130(1), Article 130(2), Article 130(4) and Article 130A.

6. The tribunal was also referred to the Employment (NI) Order 2003.

7. In addition, the following cases were cited to the tribunal.

Authorities of the respondent

1. Dobbin v City Bus Limited [2008] NICA 42.

2. Kelly Madden v Manor Surgery [2007] IRLR 17 EAT.

3. London Ambulance v Small [2009] IRLR 563.

4. Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

5. J Sainsbury Ltd v Hitt [2003] IRLR 23 CA.

6. Silman v ICTS (UK) Ltd, UK EAT/0630/05/LA 6 March 2006.

The following authorities were referred to in the submissions on behalf of the claimant:

1. Baxters (Butchers) Ltd v Harte EAT 94/83 AVB [2003] IRLR 405 EAT.

2. British Railways Board v Herrington [1972] AC 877 At 930.

3. Strouthos v London Underground Ltd [2004] IRLR 636 CA.

4. Polkey v AE Dayton Services Ltd [1988] ICR 142.

5. Nelson v BBC (2) [1979] IRLR 346.

6. Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT.

7. British Home Stores v Burchell [1980] ICR 303.

8. J Sainbury Ltd v Hitt [2003] IRLR 23.

THE FINDINGS OF FACT

8. The claimant was employed as a Bursar by the respondent. At the time of the termination of employment in this matter the claimant had been employed for 12 years as he started work from 1 August 1996 and worked until 18 September 2008 which was the date of his dismissal.

9. In or around April 2008 the principal of the school Mrs Diana Press was presented with a cheque for signature. The cheque was authorised by Mr Tierney along with payments to NILGOSC, DE Pensions and AVC Prudential. This was in line with previous practice. The amount of the cheques varied and were payable to M Tierney and on a few occasions to B Tierney (the wife of the claimant). These cheques were generated monthly signed by two signatories and the payments had been made since 1999.

10. On 29 April 2008 Mrs Press decided to query the reason for the cheque in favour of Mrs Tierney. She phoned Mr Tierney in his office and he replied that when he was appointed Bursar it had been agreed with Monsignor Bartley of the Board of Governors that the claimant should have a similar rate of pension scheme as the teachers had. He could not be a member of the teachers’ pension scheme so late in 1999, the claimant alleged on the advice of the school auditor Mrs Anne Fitzpatrick of Baker Tilly Mooney Moore, he entered the NILGOSC pension scheme and took the differential in the pension contribution between the NILGOSC scheme and the teachers’ scheme as a monthly payment for him to invest as he chose, and he chose to put it in his wife’s savings account.

11. A short time later the claimant phoned Mrs Press and said that he had looked up the NILGOSC scheme and that there was no longer a need to provide the cheque as the schemes were “compatible”. Mrs Press expressed the need for this to be checked. The claimant agreed and that was the end of the call.

12. After having a meeting with Mr Harry Coll (the school solicitor), Bishop McKeown, the Chairman of the Board of Governors and Mrs Geraldine Gibson (the Vice Principal), the claimant was suspended and he left the school buildings.

13. Some time on 29 April 2008 the claimant performed a calculation of the payments made to him which showed that he had been overpaid £1,266.04 in pension supplements.

14. The claimant said that he had spoken to the school auditor Mrs Anne Fitzpatrick who advised him that he could repay it presumably without prejudicing his position, (the tribunal’s interpretation) although Ms Fitzpatrick did not give evidence to the tribunal.

15. The respondent then commenced a “preliminary investigation”. Effectively the investigation looked at two issues:-

(a) Was there any agreement regarding the pension arrangements of the claimant?

(b) What were the sums of money received by the claimant?

16. As part of the investigation of whether or not there was an agreement that the claimant should have the pension arrangements that he contended for, Mrs Press looked through the minutes of the Board of Governors to see if there was any record of the Governors’ agreement to this arrangement. There was no such record. She also spoke to Bishop Walsh who was Chairman of the Board of Governors from 1993 to 2000 and he had no recollection of this being agreed. Mrs Press further spoke to Mr Michael McClean who had been principal of the school from 1999 to 2006 and Mr Finbarr McCallion who had been principal from the opening of the school in 1993 until June 1999, both of whom had no memory of such an arrangement being arrived at. Mr McCallion went further and said he was not aware of any differential payments being made to the claimant while he was principal.

17. Mrs Press then commissioned the accountancy firm BDO Stoy Hayward to carry out an investigation on her behalf.

18. In paragraph 1.5 Mr Stephen Moohan ACA of BDO Stoy Hayward set out what he had been required to do as follows:-

“... to provide forensic accounting services in connection with concerns regarding financial practices in Aquinas, specifically:

● check payments made to Mrs Tierney, the wife of school Bursar, Mr Brian Tierney; and

● the accuracy of the calculation of employer’s national insurance contributions.

19. Mrs Press told Mr Moohan that for as long as records were available a cheque had been issued from the Aquinas bank account made out to Mrs Tierney. However, although Mrs Press had been a signatory of these cheques for some time, it was only in April 2008 that she actually started to query this arrangement. The query in respect of employer’s national insurance contributions was later dropped as an issue from the investigation and we have paid no further attention to it.

20. While Mr Moohan accepted that he was not required to comment on the claimant’s entitlement to a payment in respect of a differential between contributions to the NILGOSC and NITPS pensions scheme, he did put forward the conclusion that from 1 April 1999 to 31 March 2008, Mr & Mrs Tierney received payments totalling £13,001.00 in relation to the pension scheme payments. In the view of Mr Moohan, this meant that the claimant had received an over payment of £6,600. Mr Moohan did not actually give evidence to the tribunal but his conclusions were commented upon by Mr Johnny Webb of BDO Stoy Hayward. He explained that the methodology adopted by Mr Moohan which was consistent with BDO’s methodology in forensic accounting involved them writing to NILGOSC for pension scheme rates for the time in question and to the Department of Education for the teachers’ pension rates and carrying out a comparison. These were the sources of information which led Mr Moohan to contend that payments had been received in the sum of £13001.00 and an overpayment made in the sum of £6600.00.

21. On 16 June 2008 a disciplinary committee composed of school governors met as provided for in the disciplinary procedure for non-teaching staff and considered reports from Mrs Press, Mrs Gibson, and the report of Mr Moohan of BDO Stoy Hayward. That committee considered as a result that a prima facie case of gross misconduct had been established. The tribunal has noted with concern that the disciplinary authority did not take or consider any statement made by the claimant in connection with these allegations. Whilst there is no express requirement in their procedure to do so, the tribunal considers that it is well-established industrial practice that a person should be asked for an explanation in an investigation and that should be considered along with all other material and we will consider this further in the circumstances of this case under paragraph 40.

22. On 18 June 2008 Mrs Press wrote to the claimant confirming that the disciplinary authority had met and required the claimant to attend a disciplinary hearing on Thursday 26 June at 6.30pm in school. A schedule of allegations was attached to this letter and the claimant was provided with the statements of Mrs Press, Mrs Gibson and the forensic report made by BDO Stoy Hayward.

23. The hearing set for 26 June 2008 was adjourned at the request of the claimant and the disciplinary committee set a new date of Wednesday 9 July 2008 for the hearing of his case.

24. In the interim the claimant appointed his own accountant Mr Raymond Baxter of Baxter Associates. On 21 June 2008 Mr Baxter wrote to the school auditors asking for certain information. On 30 June 2008 Mr Harry Coll of Elliott Duffy Garrett, the school solicitor informed Mr Baxter that the issues he raised were not ‘relevant or pertinent’.

25. On the day after the claimant’s initial suspension, Mrs Press read out a statement to the assembled staff of the respondent indicating that nobody was to talk about Mr Tierney’s case and that there should be no communication with him. As a result, the claimant requested that he have Mr Baxter accompany him to the disciplinary hearing. By letter dated 1 July 2008 Mr Coll refused that request saying that he had the right to be represented “by your trade union or by another member of staff.”

26. While the tribunal noted that the respondent through Mr Coll wrote once again to the claimant on 3 July 2008 stating that he could nominate a fellow employee to accompany him to the disciplinary hearing and thus confirming that he would not be in breach of any stricture imposed on him during the course of his suspension, there was no evidence that Mrs Press had informed the staff that they were at liberty to speak to the claimant. As a result, the claimant did not feel that he could call on any member of staff to accompany him to the disciplinary hearing. By an undated letter the claimant continued to protest to Elliott Duffy Garrett that he would have to attend by himself at the disciplinary hearing if he was not allowed to bring Mr Baxter. As a bursar the claimant claimed he could not join a union and he could not bring a colleague as he contended he was not allowed to make contact with anyone in the school. This correspondence went on against a background of a refusal to permit Baker Tilly Mooney Moore to provide information to Mr Baxter who was acting on behalf of the claimant.

27. On 9 July 2008, the disciplinary body was chaired by Mr James Toolan, a governor of the school who is also a barrister. He acceded to the claimant’s request that he required an adjournment to have a report prepared to address the issues raised by the BDO Stoy Hayward report and to properly present his case. Accordingly the matter was postponed to 16 September 2008.

28. Mr Baxter’s report was made available to Elliott Duffy Garrett who provided it to Mr Toolan. Mr Toolan considered that it should be sent to BDO Stoy Hayward for further comment and this was done. In or around 14 August 2009 NILGOSC wrote to Mr Moohan confirming that an error had been made by them in their previous correspondence which had given rates of contributions since 1 April 1997. On foot thereof, Elliott Duffy Garrett required BDO Stoy Hayward to update their report and this was duly done by way of a letter to Elliott Duffy Garrett dated 9 September 2008. This was also sent to Mr Toolan under cover of a letter of 10 September 2008. This document was not disclosed to the claimant before the hearing. The effect of the report was to reduce the size of sums claimed against the claimant to the sum of £1266.04 which was the amount that the report of Mr Raymond Baxter claimed as being due and owing from the claimant to the respondent, and indeed was the amount that the claimant calculated he had been overpaid by the respondent on the day he was suspended. Mr Toolan made some ancillary enquiries with the administration of the respondent on Wednesday 17 September 2008 concerning the mechanism for cheque generation and whether there was any evidence in the school records to show that splitter leads had indeed been acquired during the second period. Although there was no clear evidence that they had been, there was a practice of staff making purchases by credit card and being refunded. On a document dated 17 September 2008 Mr Toolan summarised the findings of the disciplinary authority. In connection with the allegation that Mr Tierney falsely misrepresented that there was an agreement between the respondent’s school and him concerning pension contributions, the panel found that the evidence was insufficient to prove Mr Tierney guilty of the conduct alleged. Furthermore, on the assumption that there was in fact an agreement, on the allegation that Mr Tierney procured payment without proper authority or did otherwise misrepresent or procure payments in excess of the terms of the agreement or payments that had been authorised thereunder, he divided this allegation into three time periods. For the first and second time periods which ran from April 1999 to 31 March 2000 and from 1 April 2004 to 31 March 2005 respectively he found there was insufficient evidence to substantiate a complaint of overpayment and in this respect the benefit of the doubt was given to the claimant over his informal set off of £265.68 in respect of the splitter leads despite no evidence being produced by the claimant. However in relation to the third period which ran from 1 April 2007 to 31 March 2008 his panel took account of the claimant’s admission, the evidence that there was an overpayment in the sum of £1266.04 and found that the claimant was guilty of financial irregularity amounting to gross misconduct.

29. The panel concluded that the appropriate sanction was dismissal as a result of irretrievable breakdown of trust and confidence in the claimant given the nature of his conduct and the critical sensitivity of his position as bursar at the school. The panel considered the mitigating factors proffered by the claimant in relation to the effect of the state of his wife’s ill health upon him and his own state of health, together with the duration of employment of the claimant and absence of any disciplinary record to date. Notwithstanding these factors, the panel found that the claimant was guilty of gross misconduct and was summarily dismissed. The claimant was informed of this decision by Mr Toolan through a letter dated 18 September 2008.

30. By a letter dated 23 September 2008 the claimant appealed this decision on the ground that it was harsh and extreme and as he agreed that a mistake had been made, he offered to rectify the mistake immediately.

31. By a letter dated 29 September 2008, Bishop Donal McKeown, the chairman of the Board of Governors of the respondent school indicated that the appeal would be heard by persons who had not previously been involved with either the grievance stated by the claimant or in his disciplinary process. He asked the claimant to state the grounds of appeal. By a letter also dated 29 September 2008, Mr Coll of Elliott Duffy Garrett, the school’s solicitor asked the claimant’s permission to have two external persons sit with Bishop McKeown as members of the appeal panel. The claimant consented to this proposal through his solicitors by a letter dated 3 October 2008 and the date of the appeal was fixed for Thursday 16 October 2008. The two external individuals were Mr Patrick Hassan, a businessman who is also chairman of a local primary school board of governors, and Mr Patrick Mc Cartan, a school governor of St Columbanus College and a former chairman of the Labour Relations Agency. The Very Reverend Donal McKeown Auxiliary Bishop of Down and Connor Diocese and Chairman of the Board of Governors of the respondent was the chairman of the appeal. Mr McCartan recorded notes of the hearing as well as taking an active role in the questioning of the claimant. The appeal panel considered Mr Tierney’s grounds for appeal, his oral and written submissions, the report dated 4 September 2008 and the report received from Baxter Associates, a review of relevant documentation in Aquinas Diocesan Grammar School, and an interview with Mrs Press and the office manager Mrs Helen Burke, the mitigating circumstances concerning the claimant’s wife’s illness and his record of employment in the school. They also considered the claimant’s role and responsibilities. The disciplinary committee also took account of the fact that the claimant accepted that payment had been made from a school account other than through the Payroll (PAYE) system from which he benefited. The appeal was not upheld.

32. The tribunal found that there was no breach of the statutory disciplinary procedure.

33. The tribunal noted that the claimant had admitted that he had received an overpayment of £1266.04 in respect of “pension supplements”, but he did not admit that this had been as a result of anything other than an innocent mistake occasioned by him failing to adjust the rates of pay in the pension schemes as he had periodically done before this matter arose.

Conclusions

34. Under Article 130 (1) of the Employment Rights (Northern Ireland) Order 1996 the first question to be asked is whether the dismissal of an employee is fair or unfair and in this connection the employer has to show the reason for the dismissal and that it is a reason falling within paragraph (2) of that article. We are satisfied on the evidence before us that the respondent has discharged this burden of proof and that the reason for the dismissal related to the conduct of the claimant. The claimant was a bursar - effectively the most senior financial officer working for the respondent and he put in a cheque request each month from 1 April 2007 – 31 March 2008 for a monthly supplement. The office manager might have prepared the cheques ready for signature by any of the cheque signatories but it was the claimant and only the claimant who generated the initial request.

35. In reaching its decision the tribunal has adopted the formulation of the guidance in misconduct cases given by Arnold J in the case of British Home Stores v Burchell set out in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

“The test for whether the dismissal was fair or unfair is set out in Article 130 of the Employment Rights (Northern Ireland) Order 1996 but in these misconduct cases it is generally helpful to follow the remarks of Arnold J in British Home Stores. It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds on which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances. The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.”

36. Was there a belief in the particular form of misconduct? Did the respondent believe that the claimant had been guilty of the particular form of misconduct in this case which took the form of misappropriation of funds or procuring money to which he was not entitled?

37. The circumstances in which this matter came up are worthy of note. The school had just undergone an inspection and a full internal audit had been required by the board of governors. It was in this context that Mrs Press first decided to query the cheque request from the claimant. Frankly the tribunal considers her suggestion in her evidence that she previously believed the cheque request to be for laundry to be quite risible. However the tribunal does accept that the principal, Mrs Press, had been in the way of signing these cheques as a co-signatory to Monsignor Bartley and the previous principals of the school. Given the uncontroverted evidence of the respect in which Monsignor Bartley was held by everyone to do with the school, the tribunal infers from that that Mrs Press simply co-signed the cheques for the claimant’s pension supplement in the belief that if they had been signed by Monsignor Bartley, the then chairman of the finance committee, or the previous principals the requests must be in order. This is the background against which the tribunal sets the events of 29 April 2008. This was the day upon which Mrs Press challenged the claimant about the cheque. He gave her the explanation that it was a pension supplement which had been agreed with Monsignor Bartley. Not long after her initial enquiry, the claimant telephoned Mrs Press and said there would be no further need for the cheque as the situation had changed. The tribunal does not consider that it was unreasonable in the circumstances for Mrs Press to want to investigate the matter further. When the cheques were queried within a very short time the claimant indicated that the cheque was no longer necessary. Added to the fact that the claimant was bursar of the school, a position of huge financial responsibility, it would be strange for the school not to have considered that something suspicious was going on. The school was entitled to have a suspicion that some form of misconduct was happening.

38. Did the employer have reasonable grounds on which to sustain the belief?

The claimant was the bursar and in a position in which he was the chief financial officer of the respondent. The relationship between Mrs Press and the claimant at this time was one in which Mrs Press trusted the bursar to get on with his job. For these reasons and for all the reasons stated in the foregoing paragraph we consider that the respondent school had reasonable grounds on which to sustain the belief that misconduct centering around misappropriation of funds had taken place. To be asked for a cheque and when it is queried, to be told it is not needed is suspicious.

39. Was there as much investigation into the matter as was reasonable in all the circumstances?

After the claimant was suspended, Mrs Press tasked the firm of BDO Stoy Hayward to carry out a forensic accounting exercise. BDO Stoy Hayward were not tasked to investigate whether or not there was an agreement between the respondent school and the claimant that he would be entitled to take these payments by way of a top-up to his pension. This firm was asked to assess the extent of the sums that had gone missing. Essentially, the report for the purposes of the tribunal hearing came down to two conclusions. These were that:–

(a) From April 1999 to 31 March 2008 Mr and Mrs Tierney received payments totalling £13001 in relation to pension scheme payments;

(b) In the period 1 April 1999 31 March 2008, the claimant had received £6600 in excess of amounts due.

40. It ultimately transpired that there was a mistake in the report of BDO Stoy Hayward. The reason that this mistake happened was that this firm believed that the exercise of forensic accounting should be carried out by seeking information from third parties. In this instance, Mr Baxter took issue with the methodology adopted by BDO Stoy Hayward. There was no evidence to suggest that there is any official protocol for how forensic accounting is carried out. There is no doubt that the BDO Stoy Hayward report was badly undermined by the failure of NILGOSC to give that firm correct information. However, we are not able to say that this was a wrong or unreasonable mode of investigation. All we are able to say is that it is possible that if BDO Stoy Hayward had adopted the methods of Baxter & Associates by looking at actual figures in the school records (although we note that Mr Baxter did not have this facility) the difficulties with the BDO report might very well have been avoided, and this report might have been the useful tool it was intended to be.

41. The Failure to Interview the Claimant.

The tribunal noted that the school’s disciplinary procedure does not require explicitly that the claimant should be interviewed as part of the preliminary investigation. However, it is long standing industrial practice for every person involved in an incident to be interviewed. The claimant was not interviewed as part of this investigation, and the claimant had to commission his own report from Mr Baxter concerning the allegations of the respondent. Whilst the tribunal continues to consider that it is proper industrial practice to interview a claimant accused of misconduct, in the particular circumstances in this case, the tribunal does not consider that it led to any particular general procedural unfairness. The claimant was given a substantial adjournment within which to brief Mr Baxter. When Mr Baxter’s report came in it was acted upon by the respondent. Even before Mr Baxter’s report was available, Mr Toolan, the chairman of the disciplinary authority, by an email dated 4 August 2008 to the school’s solicitor, Mr Harry Coll of Elliott Duffy Garrett, suggested a number of issues to be looked at. When the report did come in, by a letter dated 7 September 2008 Mr Toolan wrote to Elliott Duffy Garrett stating a list of issues to be considered by BDO Stoy Hayward. The effective outcome of this procedure was that BDO Stoy Hayward wrote a supplementary report effectively abandoning their main contentions that the claimant and his wife had received £13001 and there was an overpayment of £6600. This was an active ongoing investigation in which the respondent school through Mr Toolan actively considered the reports and pursued lines of investigation arising out of them.

42. Was it unfair not to tell the claimant when the disciplinary hearing actually took place on 16 September 2008 that effectively the disciplinary authority was relying on the claimant’s own report rather than the full weight of BDO Stoy Hayward Report?

It would certainly have been good industrial practice for the amended BDO Stoy Hayward report to have been disclosed to the claimant. After all a claimant is entitled to know the case which he has to meet. However, the Baxter report identified an overpayment of £1266.04. In support of this argument on behalf of the claimant Mr McArdle cited the case of Strouthos v London Underground [2004] IRLR 402 in which Lord Justice Pill said:–

“It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant facing a dismissal should be precisely framed. “

In the case of Silman v ICTS (UK Ltd) Mr Justice Elias sitting in the Employment Appeal Tribunal cautioned against creating unnecessary technical hurdles for either employer or employee.

“It will frequently happen in the course of a disciplinary hearing that the evidence emerging will identify potentially disciplinary conduct which, although closely related to the original alleged misconduct, is a variation of it. That, it seems to us, is precisely the position here. There is very little difference between the original complaint, which was unauthorised absence, and misuse of company time which stemmed from the Appellant sitting in his car and not effectively carrying out work for the benefit of the company. In both cases, the essence of the complaint is that no work is being done for the company. Whether that is because the employee is at home or sitting in his car is of no real materiality, so it seems to us. Shifts in the focus of the case will not lead to an obligation for the employer to write fresh missives on each occasion. “

The tribunal considers that that is precisely what has happened in this case. The figure of £1266.04 which it must be remembered the claimant admitted receiving as an overpayment, was part of the original alleged overpayment of £6600, and a shift in the emerging evidence led the parties to focus upon it. This being the case, we do not consider the Strouthos case as having any application in respect of the particular facts of this case, and we do not consider the claimant was prejudiced as he already had accepted the sum of £1,266.04 was an overpayment.

43. The Role of Mr Harry Coll

Much was made by the claimant in the presentation of this case about Mr Coll’s attempts on behalf of the respondent to curtail questions being raised by Mr Baxter and to be less forthcoming with assistance to the claimant in presenting his case than Mr Toolan initially promised in the disciplinary hearing which was adjourned. A solicitor who is trying to protect a client with little or no knowledge of industrial procedure, faces a difficult task. He naturally wants to protect his client and not make the other side’s case for him although legal practice now places a greater emphasis on discovery in many areas of litigation and a person is entitled to know the case he has to meet. This can look as though there is an attempt to thwart the provision of evidence necessary to assist the claimant in the preparation of this case, but the tribunal did note that some of the information sought by Mr Baxter was given by Mr Coll in correspondence by a letter dated 9 July 2008. We do not consider that the actions of Mr Coll ultimately made any difference to the fairness of the procedure, although we accept he appeared to undermine the promises of Mr Toolan.

44. The Agreement with Monsignor Bartley

The claimant alleged that he was entitled to receive the pension supplement cheques because Monsignor Bartley had said when he started as bursar he was to receive a pension provision equivalent to that of the teaching profession. As a bursar he could not become a member of a teachers’ pension scheme so he alleged that he entered the NILGOSC pension scheme and took the balance between the monthly NILGOSC contribution to its scheme and the teachers’ pension scheme contribution as a supplement which he was to invest as he pleased. As Monsignor Bartley died in late 2007, and was not available to say what he had or had not agreed on behalf of the school, we consider that the school through Mrs Press took reasonable steps to try to establish the position. The school minutes were checked to see if there was any mention of such an agreement. The two previous headmasters were contacted and they both confirmed that they knew nothing of such an agreement. She also spoke to Bishop Walsh, chairman of the board of governors from 1993–2000, who also had no recollection of the agreement. These were reasonable and proper enquiries to make and the tribunal was not presented with evidence of other enquiries that should have been made. If there was any unfairness in the investigation, the tribunal considers that it was cured by the disciplinary hearing in which the benefit of the doubt was given heavily to the claimant. As there was no evidence really pointing one way or the other, the disciplinary authority found that there was an agreement (relying on the evidence of the office manager Mrs Burke and Mrs Gibson the vice principal who both seemed to know something about the arrangement). They also accepted the claimant’s informal set off of the £265.68 with no proof from the claimant. The tribunal could have made criticisms of elements of the investigation as not being in accordance with the best industrial practice. However, the tribunal does not believe that these criticisms ultimately turned what was a reasonable investigation in that the school had carried out as much investigation into the matter as was reasonable in all the circumstances, into an unreasonable investigation.

45. Article 130A Procedural Unfairness

As the tribunal has found that the dismissal and disciplinary procedures set out in Part 1 of Schedule 1 to the Employment (Northern Ireland) Order 2003 had been complied with, this article does not apply in the circumstances of this case.

46. General Procedural Unfairness

The Right to be Accompanied.

The claimant contended that this right had been thwarted. Mrs Press had issued a statement soon after his suspension effectively ordering the staff of the school not to speak to him. Despite Mr Coll’s reassurance in correspondence on more than one occasion, as this statement had not been rescinded by or on behalf of Mrs Press, the claimant contended that his right to be accompanied was thwarted and the tribunal could see merit in this contention. However while he did protest about this at both the disciplinary hearing and the appeal, the fact remains that the claimant went ahead with both hearings by himself despite enquiries being made from him by Mr Toolan in the case of the disciplinary hearing and Mr McCartan in the case of the appeal. The claimant contended that Mr Baxter should have been able to accompany him and this was not agreed by Mr Coll on behalf of the respondent. The statutory categories allow accompaniment by a trade union representative or fellow worker. Mr Baxter could not have qualified on either ground. However there was no evidence from the disciplinary hearing or the appeal hearing which suggested that the claimant’s lack of accompaniment frustrated him in his desire to state his case. Although Mr Toolan’s notes of the disciplinary hearing were only disclosed after specific questioning from the tribunal, the fact remains that they were seventeen pages in length demonstrating a lengthy discussion had taken place. The notes of Mr McCartan, though more concise, could still be categorised as wide ranging. There was no suggestion that the fact that the claimant was not accompanied stopped him raising anything he wanted to. As ultimately in his evidence to the tribunal the claimant contended that he had already calculated the sum of £1266.04 as being owed by him to the school in respect of the overpayment at the very outset, this was the end result of Mr Baxter’s report and this is what the disciplinary authority eventually focused upon, there was no evidence to suggest that Mr Baxter’s attendance at both hearings would have added to what the claimant wanted to say.

47. The Failure to Seek More Information from Baker Tilly Mooney Moore.

Mr McArdle submitted strongly that the failure to call Anne Fitzpatrick of this company to help the claimant as part of the investigatory process and later to give evidence to the tribunal was seriously unfair. In this connection, the tribunal has considered two items of evidence. Firstly, the evidence of Mr Toolan was that when challenged about paying tax and NIC on the payments, that the claimant alleged that he accounted for those through his own business. Secondly, in his own evidence to the tribunal, the claimant alleged that he had not said this to Mr Toolan, that he had in fact said that it was for the auditors to make the necessary returns, i.e. Baker Tilly Mooney Moore. Notably this contention was not put to Mr Toolan. As the “financial captain of the ship”, the respondent school was entitled to consider that the claimant would take care of all financial matters. It was not the job of the auditors to make such a return in relation to the claimant’s pension supplements. Given the conflict between these two pieces of evidence and the potential blame attributed by the claimant to the auditor, the tribunal does not see how calling Anne Fitzpatrick of Baker Tilly Mooney Moore would have assisted the presentation of the claimant’s case to the tribunal. She might well have had some circumstantial evidence to give about the circumstances in which the arrangement was set up. However, as the disciplinary authority gave the claimant the benefit of the doubt on this point, the tribunal does not consider that this is a matter of such serious unfairness as to render of itself the hearing of the disciplinary authority generally procedurally unfair. Furthermore, the respondent had to consider its own position regarding the actions of Baker Tilly Mooney Moore.

48. The Disciplinary Hearing

It may well have been procedurally unfair for the notes of Mr Toolan not to be disclosed until the tribunal pressed the matter at hearing. However, given that these comprised seventeen pages, the tribunal allowed Mr McArdle time to consider the notes and to take instructions from his client upon them. Furthermore he was able to cross examine upon the notes. We have examined different aspects of the disciplinary hearing under other headings and confirm our finding that overall the hearing was not unfair in the manner in which it was conducted. It should be remembered that the disciplinary authority found the claimant guilty on the basis amongst other evidence of his own admission.

49. The Appeal

The claimant took issue with the manner in which Mr McCartan conducted the appeal. Mr McCartan was an external person, brought in by Bishop McKeown to sit with him in the appeal as there were insufficient governors left to do this in the school. Mr McCartan is a former head of the Labour Relations Agency. The main complaints against Mr McCartan were that he did not appear to grasp that there had been a significant change in the evidence against the claimant or that BDO had produced a substantially revised version of its conclusions. He was not aware that a key document had not been disclosed to the claimant nor did he appear to understand the potential use that he might have made of it. However these were not the points on the basis of which the claimant appealed. His letter of appeal dated 23 September 2008 pointed out that he had been employed by the school for fourteen years and was never previously disciplined throughout that period. The claimant went on to say he considered the sanction of gross misconduct to be harsh and extreme given his service and the fact that he agreed a mistake had been made and agreed to rectify it immediately. The claimant referred to the report from Baxter Associates that discredited the BDO Stoy Hayward report leaving only the “mistake” which the claimant had admitted. However, we do not consider the criticism has much - if any, validity. The claimant is an intelligent man with a grasp of accountancy who had run his own business. It must have been apparent to him that the figure of £1266.04 was the overpayment in connection with which he had been dismissed. This had been the figure that Mr Baxter’s report identified. The claimant admitted that he had received this. In the light of these facts we do not understand Mr McArdle’s criticism that “a key document had not been disclosed to Mr Tierney, nor did he appear to understand the potential use that Mr Tierney might make of it” against Mr McCartan. While the second BDO report may not have been disclosed, there was no suggestion that this had any real effect on the issue at the kernel of the case – the £1266.04

50. The second criticism against Mr McCartan centred round his mode of questioning and the areas covered. From the notes of hearing and from his evidence, Mr McCartan certainly conducted a vigorous survey of the issues involved in this case. This is perhaps unsurprising as Mr McCartan as a past chairman of the Labour Relations Agency has considerable experience in industrial matters. Ultimately the claimant had received £1266.04 to which he was not entitled, and nothing said changed this. Accordingly we consider that Mr McCartan and the appeal panel considered all relevant matters and given that both in Mr McCartan’s notes and in the claimant’s evidence to the tribunal there was a strong implication that the claimant was really seeking some form of deal, we do not consider that any general procedural unfairness attended the hearing of the appeal.

51. Enquiries after Disciplinary Hearing and after Appeal Hearing

The tribunal noted that both Mr Toolan and Mr McCartan after their respective hearings had gone back to the school and had made certain enquiries. While it would have been better that the claimant had had an opportunity to speak to these matters at the hearings, as they consisted of administrative matters such as the manner in which the cheques were generated, the tribunal does not consider that any substantive unfairness resulted, especially as in Mr Toolan’s case, his investigations led to the claimant being given the benefit of the doubt in respect of £265.68 despite the claimant not producing any evidence to support the alleged set off.

52. Summary on the Issue of General Procedural Unfairness

Having considered the evidence as a whole, despite the various incidents of procedural unfairness having been identified, we are satisfied that even if these had not existed, there was very little to no chance that the respondent would have reached a decision in favour of the claimant. In the last analysis it came down to the figure of £1266.04 which Mr Tierney could not justify. He admitted that he had received that figure and we are satisfied on the evidence that neither the disciplinary authority or the appeal panel would have changed their decisions.

53. Did the Respondent Act Reasonably or Unreasonably in Treating That Reason as Sufficient Reason to Dismiss the Claimant?

We have found that the respondent had reasonable grounds for the belief it held in the guilt of the claimant and that had been reached after as much investigation as was reasonable in the circumstances. In reaching this decision the guidance of Mr Justice Brown Wilkinson in the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 has been of assistance:-

“Since the state of the present law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by Section 57 (3) of the Employment Protection (Consolidation) Act 1978 is as follows:

(1) The starting point should always be the words of the Section 57 (3) themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if a dismissal falls outside the band it is unfair. “

54. Applying the words of Mr Justice Brown Wilkinson to the current case, we consider that the decision of the respondent did lie within a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another. It was emphasised in evidence that the claimant’s position involved a certain amount of trust being placed in him. He was regarded as the financial “captain of the ship”. It was also the case that the respondent had made certain allowances for the claimant. This was not a situation in which he was expected to work full time at his own job while his wife was ill. The evidence suggested he had been allowed to come and go much as he pleased while she was very ill. The benefit of the doubt was amply given to the claimant by the disciplinary authority. At the end of their analysis they could not really decide one way or the other if an agreement existed between the claimant and Monsignor Bartley on behalf of the school regarding the pension arrangement. Despite a lack of strong evidence in favour of the agreement, the disciplinary authority concluded that such an agreement existed.

55. The figure of £1266.04 which was the figure reached after Mr Baxter’s analysis and to which the claimant in evidence to the tribunal said he had admitted to the auditors that this was an overpayment. He admitted to the auditors at a very early stage that this was an overpayment. In respect of the second period there was a sum of £265.68 which the claimant claimed was offset against splitter leads which he had bought for the school. Although deprecating the fact that there was no real evidence from the claimant in terms of an invoice or a credit card statement, by further enquiry with the school next day, Mr Toolan decided that he would accept this highly informal offsetting- a further example of the benefit of the doubt being given to the claimant. Finally the disciplinary authority carefully assessed the claimant’s explanation for his behaviour in procuring the £1266.04 as being caused by a mistake brought about by stress in the circumstances of his wife’s ill health. The claimant’s account before the disciplinary authority was that his wife’s illness reached its worst point in late 2006 when she was finally admitted for major surgery at Blackrock Clinic. However at this time, the claimant made adjustments to the rates of payment in his favour in October and December of that year. Given the amount of leeway given to the claimant in this case we do not consider that a decision that the claimant deliberately avoided maintaining the arrangement with the previous diligence he had shown when it was in his favour, because it meant he would no longer have had his entitlement to a monthly cheque and decided to dismiss him as a result, was outside the band of reasonable responses. This claimant had a position of great financial responsibility for which he was paid accordingly. The respondent school acted reasonably in treating his conduct as a sufficient reason to dismiss him.

Chairman:

Date and place of hearing: 21-24 September 2009, 19-21 October 2009, and 6 November 2009.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Tierney v Aquinas Diocesan Grammar Schoo... [2010] NIIT 00088_09IT (25 February 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/00088_09IT.html Cite as: [2010] NIIT 88_9IT, [2010] NIIT 00088_09IT

Industrial Tribunals Northern Ireland Decisions