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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGuigan v Magherafelt Women's Group Limi... [2010] NIIT 969_10IT (25 November 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/969_10IT.html Cite as: [2010] NIIT 969_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 969/10
CLAIMANT: Jacqueline McGuigan
RESPONDENT: Magherafelt Women’s Group Limited
DECISION
It is the unanimous decision of the tribunal that the claimant was unfairly dismissed but she contributed to her dismissal to the extent of 25% and a further 30% reduction was made to reflect that had as much investigation as was reasonable in all the circumstances the case being made there was a reasonable chance that further information could have been forthcoming to cast doubt upon the claimant’s culpability as perceived by the respondent to the extent that she might have kept her job. Thus the respondent is ordered to pay the claimant the sum of £1,834.57 as compensation.
Constitution of Tribunal:
Chairman: Ms W A Crooke
Members: Ms M Galloway
Mr R Black
Appearances:
The claimant was represented by Ms Janice Gilkinson, instructed by O’Kane Boyle Solicitors.
The respondent was represented by Mr R McNamee, Barrister-at-Law, instructed by P A Duffy and Co Solicitors.
SOURCES OF EVIDENCE
1. The claimant gave evidence on her own behalf. The following gave evidence on behalf of the respondent:-
Mrs Moira McLaughlin, Centre Manager.
Ms Anne-Marie McNulty, Chairman of the Board of Directors.
Ms Sinead Mullan, Accountant.
Additionally, there was a bundle of documents before the tribunal.
THE CLAIM AND THE DEFENCE
2. The claimant’s claim was that she had been unfairly dismissed. The respondent denied this claim and contended that she had been fairly dismissed for falsification of records.
THE APPLICABLE LAW
3. The applicable law in respect of unfair dismissal is found in the Employment Rights (Northern Ireland) Order 1996 at Article 130. The law in respect of deductions from compensation is found in Article 156(2) and Article 157 of the Employment Rights (Northern Ireland) Order 1996. Additionally, in reaching its decision the tribunal has had regard to the following case law:-
British Homes Stores v Burchell [1980] ICR303 and Iceland Frozen Foods Limited v Jones [1983] ICR17.
FINDINGS OF FACT
4. (1) The claimant was employed by the respondent as a financial administrator from 1 November 2006 to 26 February 2010.
(2) The respondent is a community group that provides facilities for childcare and training.
(3) The sums for payment for these services were collected weekly and a manual receipt that was signed off by the person paying over the money and the person receiving the money, was maintained. The money and the receipts were kept in the crèche part of the respondent’s premises and transferred to a safe. The money was counted weekly and banked on a Monday. The claimant’s job was to create a spreadsheet and match the manual records with each child and reconcile the lodgement.
The money was kept in a box in an unlocked cupboard in an office that was accessible to a number of people.
(4) Towards the latter half of 2009 it was not disputed that the claimant seemed to be taking a longer amount of time to do this particular job.
(5) On 7 December 2009 the claimant indicated to the centre manager that the cash in the boxes and the amounts on the spreadsheets could not be reconciled for the week commencing 30 November 2009. On 8 December 2009 while the claimant was off, Mrs McLaughlin commenced an investigation.
(6) Mrs McLaughlin analysed the records back to the start of the spreadsheet system in June 2009. She found an overall shortfall of £4,200.00 and a number of significant variances between the spreadsheet and the funds lodged.
(7) On 25 January 2010 Mrs McLaughlin conducted an investigatory meeting with the claimant. She spent three hours going through the records with her but no explanation was forthcoming from the claimant for the variances. The claimant was asked to reflect on matters to see if any further information or assistance could be given, but nothing further came to light.
(8) The claimant was suspended from work on 26 February 2010. The claimant had a further meeting with Anne Ford on 1 February 2010 and was unable to give Ms Ford any explanation for what had occurred.
(9) On 5 February 2010 the claimant was informed in writing that Ms McNulty and Ms Campbell were going to hold a Disciplinary Hearing on 8 February 2010. This letter set out the allegation of falsifying records and also advised the claimant that she could have a companion attend the meeting with her.
(10) Mrs McNulty and Ms Campbell went through the records with the claimant and once again the claimant had no explanation other than to say that she was not good with spreadsheet auto sum. The claimant also admitted in that meeting that she was pointing out that the boxes were never right but only said it out loud to whoever was there in the office at that time. She did not report it formally to the centre manager. The outcome of this meeting was that the claimant was dismissed.
(11) By a letter dated 23 February 2010 the claimant was advised that she had been found guilty of the allegation of falsifying records and advised of her right of appeal. She was also advised that the respondent intended to appoint Sinead Mullan, chartered accountant and registered auditor of the respondent, to hear the appeal. The claimant gave notice of her wish to appeal by a letter to Mrs Ford of 1 March 2010 and a date of 15 March 2010 was fixed to hear the appeal. By a letter of 12 March 2010 she was once more advised of her right of accompaniment to the Appeal. Sinead Mullan had never conducted an Appeal meeting before, but she formed the opinion that the claimant understood her role and responsibilities and that she was more than capable of recording payments on to Excel from the invoice register, manually recorded by the childcare manager, checking payments to monies received into the main office and investigating differences between what parents paid and what was lodged. She also concluded that it would have been reasonable for her to understand that if payments made by parents were lower than the monies to be lodged and could not be reconciled that this would cause concern leading to a suspicion that money was missing and that she should have alerted her line manager. The claimant did not alert her line manager she simply remarked to the room in which she worked at large if there were any variances. The claimant did not seem to take the receipts into her calculations at all, she simply counted up the money and recorded that total on her spreadsheet. She did not record these differences in her accounting records. This led Ms Mullan to the conclusion that the size and nature of the differences were being deliberately concealed so as not to raise concern or cause any attention to be raised to the matter. The tribunal has noted that the notes were drafted after this meeting and were not agreed with the claimant.
(12) By a letter dated 18 March 2010 Ms Mullan dismissed the claimant’s Appeal
(13) The claimant put in a grievance to the respondent on the day of the Appeal Hearing and a meeting was fixed to deal with it which took place on 22 March 2010. By a letter dated 24 March 2010 Mrs McLaughlin indicated that she found no substance in the grievance. She also advised the claimant of her right to appeal and to be accompanied. Although there was no outcome to the grievance appeal before the tribunal, the claimant did not raise this as an issue in the hearing before the tribunal.
CONCLUSIONS
5. In any case involving dishonesty the guidelines set down in the case of British Home Stores v Burchell are of great relevance. These are the questions to be asked:-
a. Was there a belief that misconduct had occurred?
In this case there was evidence of money (£4,200.00) having gone missing. Mrs McLaughlin, the centre manager, carried out an investigation right back to the start of the spreadsheet system and found that there were variances that could not be explained so the tribunal considers there was a belief that some form of misconduct had occurred which the company had to look into.
b. Was it reasonable to hold such a belief?
The claimant was employed as a financial administrator and it was clearly within her remit to deal with income from the centre. The claimant was the person who was responsible for inputting the monies received from the parents paying for childcare facilities into the spreadsheet on the computer. It was reasonable for the respondent to have the belief that the claimant, as the person who was the most involved with the inputting of the figures, should be investigated.
c. Was there as much investigation into the matter as was reasonable in the circumstances of the case?
We do not consider that there was as much investigation as was reasonable in the circumstances of the case. While Mrs McLaughlin conducted a paper investigation between the receipts and the spreadsheets, it became clear to the tribunal in the course of the hearing that she had not in fact interviewed any other employees in relation to this matter. The claimant was not the only person who had access to the money. To only interview the claimant is to the tribunal strongly suggestive of an investigator coming to the matter with a closed mind. The tribunal considers that there would have been a reasonable chance that if she had investigated properly by taking statements from the claimant’s co-workers that some further information would have come to light and the claimant might have been able to stay in her job. The only explanation offered for only interviewing the claimant was the centre manager did not wish to upset the other staff. The tribunal assesses the likelihood that had as much investigation been carried out as was reasonable in all the circumstances of this case that the claimant might have kept her job as 30%.
d. Was dismissal within the band of reasonable responses?
We consider that it was within the band of reasonable responses for falsification of records. This sort of offence involves a breakdown in trust and confidence.
CONTRIBUTION
5. (1). Articles 156(2) and 157(6) provide that where a dismissal was to any extent caused or contributed to by any action of the complainant the tribunal can reduce the basic and compensatory awards by such proportion as it considers just and equitable. In this case we do consider that the claimant contributed to her own dismissal.
a. She admitted that it was her responsibility to keep petty cash records and that she did not keep them in a proper state. It seemed that anybody could simply dip into the money collected from the parents and take out what they wished if anything was required to be bought for the respondent. It seemed to the tribunal that more often than not there was no receipt provided to the claimant for whatever money was taken out. This is evidence of a degree of laxity that shows that the claimant did not take this part of her job seriously.
b. The claimant did seem to know that there were variances that could not be reconciled, but the tribunal finds that she did not take sufficient steps to notify the centre manager, Mrs McLaughlin, about this. It appeared that when she found a variance, the claimant simply remarked upon it to the room at large. This is not in any way a satisfactory way of dealing with an irreconcilable variance. If the claimant had been afraid of Mrs McLaughlin, the tribunal finds that it would have been open to the claimant to send her a written memo detailing the variances. Had she acted quickly, it is possible that Mrs McLaughlin would not have regarded the claimant with such suspicion.
(2) The tribunal also finds that the claimant simply totalled up the money that was left and inputted that into her records without (it seems to the tribunal) taking any account of the manual receipts. They might as well not have been there. The tribunal does consider taking all these points into account that the claimant contributed to her own dismissal to the extent of 25%.
(3) The statutory procedures were complied with.
COMPENSATION
6. The claimant had three completed years of service all within the ages of 22 to 40 years and her gross weekly wage was £230.57.
£230.57 x 1 x 3 = £691.71 - 25% (£172.92) = (£518.79) - 30%
which is (£155.63) = £363.16
Therefore the basic award is £363.16.
The claimant received the sum of £196.36 in respect of her weekly net pay and she was without work from 8 March 2010 to 6 June 2010 - a period of 13 weeks, her immediate loss is therefore:-
£196.36 x 13 which = £2,552.68 - 25% contribution (£638.17) = £1,914.51 -
30% Polkey deduction (£574.35) = £1,340.16 net immediate loss. No question of
future loss arises as the claimant has obtained a job at the same rate of pay and commenced employment on 7 June 2010.
The tribunal agreed to award the sum of £250.00 in respect of loss of statutory rights. This is subject to the 25% deduction of £62.50 = £187.50 and the Polkey deduction of 30% - £56.25 = £131.25.
Summary of Compensation - Net of Deductions
Basic Award = £363.16
Immediate Loss = £1,340.16
Loss of Rights = £131.25
________
£1,834.57
7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
8. The attention of the parties is drawn to the recoupment notice which accompanies this Decision.
Chairman:
Date and place of hearing: 31 August 2010 and 30 September 2010 - 1 October 2010,
Belfast.
Date decision recorded in register and issued to parties:
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No 6) (Northern Ireland 2010.
|
|
£ |
|
(a) Monetary award |
1834.57 |
|
(b) Prescribed element |
1340.16 |
|
(c) Period to which (b) relates: |
8 March 2010 to 6 June 2010 |
|
(d) Excess of (a) over (b) |
494.41 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department for Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or nine days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department for Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.
