Hacine-Bacha v Rahon Enterprises Ltd [2012] NIIT 01668

THE INDUSTRIAL TRIBUNALS

CASE REF: 1668/11

CLAIMANT: Osman Hacine- Bacha

RESPONDENT: Rahon Enterprises Limited

DECISION

The unanimous decision of the tribunal is that the claimant was fairly dismissed and it dismisses the claimant’s claim of unfair dismissal.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Ms K Elliott

Mr B Heaney

Appearances:

The claimant was represented by Mr Tony Adams of the Citizens Advice Bureau, Ballymena.

The respondent was represented by Mr Connor Hamill, Barrister-at-Law, instructed by Worthington’s Solicitors.

1. The claimant complained in his claim that he was unfairly dismissed by reason of misconduct for not putting money in the respondent’s office safe having left it on the office table when he was called away by a member of staff and that his treatment was inconsistent with that of the store manager in February 2011 when a £500 bag of coins went missing which he believed was a more serious offence .Matters relating to race discrimination , sexual orientation and breach of contract were also raised in the originating claim but these aspects of the case were dismissed following receipt of correspondence on 22 September 2011 from solicitor’s representing the claimant at that time which confirmed the case was purely a matter of unfair dismissal.

2. The respondent in its response resisted the claimant’s claims and contended that the claimant was fairly dismissed.

3. The case was originally listed for hearing on 15 and 16 December 2011 but postponed at the request of the claimant with the respondent’s consent, by reason of the claimant’s solicitors coming off record. On 19 December 2011 the parties agreed for the case to be relisted for hearing on 20 and 21 February 2012. On 13 February 2012 the claimant by email requested an adjournment as he was still waiting for documents from the respondent in relation to his grievance appeal. The President of the Tribunals was not satisfied with the reasons put forward and refused the claimant’s adjournment request on 16 February 2012 and confirmed that if it transpired during the hearing of the case that relevant documents were not provided the claimant could raise this with the tribunal hearing the case.

4. At the outset of the hearing Mr Adams stated that he was present by default having met the claimant that morning, the claimant originally came to him with his complaint, had been referred to solicitors who completed his claim to the tribunal but then were unable to proceed further because the claimant had no means to pay them, that the claimant in December 2011 made a claim to the Equality Commission but this was not received and so he now sought an adjournment. The respondent strongly resisted the claimant’s application. On noting that the aspects of the claimant’s claim relating to race discrimination and sexual orientation has been dismissed it was acknowledged on behalf of the claimant that an application to the Equality Commission was not a relevant reason for adjournment. Time was then sought to enquire whether legal representation could be secured for the claimant on a no win no fee basis from an English solicitor present that morning in connection with a different hearing, a short time was allowed after which it was confirmed that it had not been possible to secure representation. Mr Adams confirmed that he would remain to represent the claimant.

5. It was agreed at hearing that the correct title for the respondent is Rahon Enterprise Limited and the title of the respondent is accordingly amended from ‘1. Des Lamph 2. McDonald’s Restaurants’ to ‘Rahon Enterprises Limited’.

6. It was agreed at hearing that the reason for the claimant’s dismissal was misconduct. The claimant considered his dismissal to be unfair because the sanction of dismissal was too severe and his treatment was not consistent with that of another employee.

ISSUES

7. In determining the question whether the claimant was unfairly dismissed by the respondent the following issues were before the tribunal:-

a. Did the respondent act reasonably in treating the conduct of the claimant as a sufficient reason for the dismissal? That is:

· Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief?

· Did the respondent carry out as much investigation into the matter as was reasonable in all the circumstances?

· Was the misconduct in question a sufficient reason for dismissing the employee?

EVIDENCE

8. The tribunal considered the claim, response, an agreed bundle and additional loose documentation handed in by the parties, heard oral evidence from Mr Andrew Duncan the respondent’s area manager, Mr Kadian O’Reilly the respondent’s business manager, Mr Desmond Lamph the restaurant franchisee, and from the claimant.

FINDINGS OF FACT

9. The respondent company owns nine fast food restaurants in counties Antrim and Down.

10. Before coming to Northern Ireland the claimant had been employed in London for a number of years in the same restaurant franchise. The claimant was first employed by the respondent in September 1997 as floor manager in its Ballymena fast food restaurants. In 1998 the respondent promoted the claimant to second assistant manager but the claimant left his job in 1999 breaking his continuity of employment .The claimant was re-employed by the respondent as a second assistant manager in its Ballymena restaurant during the year 2000 after being away for approximately one year.

11. On 1 November 2004 the claimant signed to accept a statement of terms and conditions of employment, paragraph 20 of which required compliance with all company rules policies and procedures, advised that copies were available on request and warned that breach of these ‘may result in disciplinary action’.

12. The respondent has an employee handbook which under section 2.12 Discipline, Summary Dismissal, states that ,‘Acts of……gross misconduct may result in you being summarily dismissed.’ The respondent’s disciplinary procedure is set out at section 3.16 of its handbook and in particular under ‘Examples of Gross Misconduct Resulting in Dismissal’ defines gross misconduct that will lead to dismissal as any act that is detrimental to the good conduct of the Companies business and includes, ‘Removing Company money without authority or failing to place Company monies immediately into safe custody.’ The claimant was aware of the employee handbook.

13. The claimant has a ‘Group Cash Policy’ which sets out rules and regulations employees are required to follow in handling cash within the organisation, and a ‘National Cash Policy’ setting out the same cash handling requirements , the claimant signed a copy of the national cash policy to confirm that he had read and understood it. Page 113 deals with cash deposits and in particular states :

a. ‘The manager/cashier completing the deposit is solely responsible for the correct amounts being deposited.’

b. ‘All cash must be placed in a bar-coded packet, which must be sealed and signed by the person completing the cash deposit.’

c. ‘The total takings figure recorded on the bar-coded packet must be entered in the appropriate sections of the CSMB; this figure must balance with the expected amount on the ISP.’

d. ‘The person carrying out the cash deposit must personally deposit the bar–code packet in the deposit safe and complete the relevant sections of the CSMB.’

e. ‘NB Signing the cash bag accepts responsibility for the bag’s contents. Signing the CSMB confirms that the bag has been deposited.’

The claimant was required to regularly collect takings from the respondent’s cash tills, to count the cash, place it in a sealed bar-coded bag, enter appropriate details onto the office computer (ISP) and into the cash book (CSMB) and to put the bag of money into the respondent’s drop safe in the office which could only then be accessed with two keys, one of which was held by a security company.

14. On 21 March 2011 the claimant removed £550 company money from the respondent’s cash tills in accordance with procedure, counted it, logged details on the computer and into the cash book.

15. On 30 March 2011 Ms Cully the respondent’s accountant, noticed a missing lodgement for £550 on checking bank statements .Enquiries were made of the bank and it was established that the £550 had not been received by the bank. From cross referencing on cash bags and recorded details on the computer and in the cash book, the missing money was identified as the £550 collected by the respondent on 21 March 2011.

16. Mr Duncan conducted an investigatory interview with the claimant on 11 April 2011, the claimant initially stated that he remembered doing a cash drop of £550 and confirmed that the money was dropped into the bottom safe. Following this Mr Duncan showed CCTV evidence to the claimant covering the relevant time period which did not show him placing the money into the drop safe as required of him, the claimant was unable to explain what had happened to the money. Mr Duncan issued the claimant with a notice of suspension on full pay as a result of allegations of ‘removing company money without authority [or] failing to place company monies immediately into safe custody , which constitutes gross misconduct per page 52 of company handbook.’ Mr Duncan carried out a thorough investigation in accordance with the respondent’s procedures and interviewed all members of staff identified from CCTV evidence as having entered the restaurant office after the claimant had gone into the office with the £550. Mr Duncan re-interviewed the claimant again on 13 April 2011. Mr Duncan concluded his investigation and then passed all relevant papers and interview notes to Mr O’Reilly for consideration and wrote to the claimant again confirming the allegations against him and his suspension until his return for a disciplinary meeting with Mr O’Reilly on 17 April 2011.

17. The claimant attended a disciplinary meeting on 17 April 2011 with Mr O’Reilly. At the hearing Mr O’Reilly reviewed with the claimant minute by minute 3½ hours of CCTV recordings taken on 21 March 2011 showing the claimant removing the £550 from the respondent’s cash tills as required of him and bringing it to the restaurant office, the footage covered the time up until the claimant left work. On reviewing the CCTV evidence with Mr O’Reilly the claimant accepted that he had failed to place the money into the drop safe and explained that he had recorded details of the cash but then a staff member had called him away, he left the money on the office desk and he subsequently forgot about it. The CCTV footage showed a clear view at all times of the drop safe into which the money was to be placed, but because of an open door partially obscuring sight of the office desk, the CCTV footage did not reveal what had happened to the money and how it subsequently disappeared. The claimant was unable to explain what had happened to the £550.

18. After consideration of all the information before him Mr O’Reilly concluded that the claimant had failed to place the £550 in the drop safe, that the claimant had offered no defence to this allegation, that there were no mitigating circumstances, that the claimant was in the respondent’s ‘needs improvement program’ in respect of his performance, and had received a letter of intent for poor performance on 15 March 2011 , which is the stage prior to a warning if an employee remains in the improvement program. Mr O’Reilly gave evidence that he gave consideration to whether a lesser sanction than dismissal would be appropriate as there was nothing he would have liked more than to have been given an explanation for the money not dropped into the safe and that he sought legal advice before reaching his decision to summarily dismiss the claimant on grounds that he had removed company money without authority or failed to place it immediately into safe custody which constitutes gross misconduct under page 52 of the company handbook, which the tribunal accepts.

19. By letter dated 19 April 2011 Mr O’Reilly wrote to the claimant and confirmed his decision, that his actions on the shift of 21 March 2011 when he removed Company money without authority and failed to place Company monies immediately into safe custody constituted a serious breach in discipline, that explanations offered for his actions were unacceptable and found to be in contravention of Company policy as outlined in the discipline section of the Employee Handbook and his employment was therefore summarily terminated on grounds of gross misconduct . The claimant was advised of his right of appeal.

20. Around the end of April 2011 Ms Cully reported a £500 discrepancy in lodgements with the bank from the Ballymena store to Mr Duncan and Mr Black the Ballymena store manager. Mr Duncan carried out an investigation of the matter and established that there was a missing bag of five hundred one pound coins .When the bag of coins was delivered in February 2011 it was counted by the manager on duty and placed in the top section of the office safe, subsequent managers on duty were responsible for counting and recording the amount of money held in the safe ,however ,because the bag of coins was heavy , rather than lift it down and count it Mr Duncan discovered that they had instead asked the last manager on duty what amount of money was on the top shelf and recorded that amount without checking it. Mr Duncan was unable to establish from his investigation at what point the money actually went missing because of the breach in procedure by the managers not counting the money on the top shelf of the safe. Managers on duty over the relevant period would have included the claimant. Mr Duncan decided that in the circumstances it was appropriate to discipline the five remaining managers who had failed to count the money by way of verbal warning and to issue a final written warning to Mr Black who was responsible for the managers who had breached procedure for his failure to enforce the respondent’s policies and procedure.

21. The claimant wrote a letter of appeal against his dismissal to Mr Lamph on 6 May 2011 stating that he felt he had been unfairly treated after ‘20 loyal year’s service to the company’, that part of his role as manager was to remove money from the cash tills and cash up, the £550 was placed in the office which is covered with CCTV and with no general public access, to enable him to cash up ,however before he could do so that he was ‘called away and felt whilst the office was secure and under CCTV coverage this would be safe until my return. On my return as we all know this money had been stole[n] during the period of my absen[ce] from the office’. The claimant highlighted that ‘there had been a previous incident several weeks ago when money had been removed/ stole[n] from the premises and the person associated with this incident with less loyal service had been issued with a warning and not dismissed.’ A grievance was also raised by the claimant in relation to his treatment by Mr Black based on race and sexual orientation.

22. Mr Lamph wrote to the claimant on 31 May 2011 proposing to put his appeal hearing on hold until his grievance claim was investigated and an outcome decided. The claimant by letter of 22 July 2011 to Mr Lamph requested that his appeal hearing proceed. On 5 August 2011 Mr Lamph wrote and confirmed to the claimant that he would proceed with the appeal hearing when the grievance had been investigated.

23. An appeal hearing was subsequently arranged and took place on 9 September 2011 conducted by Mr Lamph. Mr Lamph put to the claimant at the outset of their meeting that the ‘crux of matter is £550- the procedure is you deposit it, you left it in the office which is not safe’ and confirmed to the claimant that he was not being accused of stealing the money. The claimant put to Mr Lamph that there are no customers in the office and although the respondent advises all staff not to leave valuables there that he trusts everyone and would sometimes leave his wallet there. The claimant explained that a staff member had called him away although he could not remember in what circumstances. The claimant indicated that he considered Mr Black had tried to cover up the loss of the £500 bag of coins which had occurred recently and that Mr Black’s actions were worse than his and Mr Black had not been dismissed. The claimant stated that in 21 years of service for that restaurant franchise he had never before made a mistake. Mr Lamph confirmed he would consider the matter and return to the claimant with his decision.

24. Following the appeal hearing in view of the allegation of deception made by the claimant against Mr Black by the claimant in relation to trying to cover up the loss of the £500 bag of coins , Mr Lamph interviewed Mr Black and another employee named by the claimant in relation to the matter.

25. On 21 October 2011 Mr Duncan who had investigated the claimant’s grievance, wrote to the claimant detailing his investigation, findings and outcomes.

26. On 5 December 2011 Mr Lamph wrote to the claimant upholding the dismissal decision. Mr Lamph in his letter to the claimant detailed the outcome of his investigation in respect of the three key points that the claimant had raised on appeal :

(1) ‘In your position of Assistant Manager it is your role to remove money from the tills and cash up. You claim the money was placed in the office which is covered by CCTV and has no general public access’

‘With regards to the wording of your dismissal letter stating that we believed you had ‘removed company money without authority and then placed into an unsafe environment’, I agree that it is part of an Assistant Manager’s role to remove money from cash tills and cash up. However, I uphold the wording with regards to placing the money into an unsafe environment. I consider that leaving money unattended for a significant period of time in the office to be unacceptable. I also consider your response that ‘the office was covered by CCTV and that there is no general public access’ negligent. In short, you failed to follow the cash procedures outlined by the company which resulted in a loss of company property.’

(2) ‘You were called away before you could cash up and believed the office was secure under CCTV coverage and a safe place to leave the money.’

‘You stated that you were called away from the office before you were able to cash up. When interviewed about this point you claimed a staff member called you away, although you couldn’t remember what for and couldn’t remember if this was an emergency situation. I regard your actions in this situation to be in breach of the cash policy guidelines and further to this , you failed to return to the office in excess of three hours later, When asked your reason for this, you stated that Karl was on holiday and that you were busy. This explanation is unsatisfactory. I consider that your delay and subsequent failure to deposit the money was irresponsible and ultimately these actions resulted in the loss of company property.’

(3) ‘A previous incident when money had been removed / stolen and the person with less loyal service had been issued with a warning and not dismissed.’

‘After a full and thorough investigation into a previous incident of missing money regarding Karl Black, I am satisfied that there was no issue of deception. An investigation took place and although the details are confidential, appropriate disciplinary action was taken at the time with a number of individuals. The reason the instance in question differs from this case is that the company was unable to identify the individual who failed to count the safe correctly. In your case, the employee who was subject to disciplinary proceedings was the manager on duty at the time of the incident and the Company considered that a degree of responsibility rested with that manager.’

27. Whilst the claimant had two warnings on his record, which the claimant considered to be unfair, these were not relied upon by Mr Lamph in his decision on appeal to uphold the claimant’s dismissal.

28. The respondent throughout the disciplinary and appeal procedure complied with its own procedures and statutory minimum disciplinary and dismissal procedures, in particular the claimant was advised at all appropriate stages of his right to be accompanied at meetings but chose not to be. Minutes of all investigatory, disciplinary and appeal meetings the respondent had with the claimant were included in the agreed bundle provided and are accepted as accurate.

29. There was no evidence presented to the tribunal such that Mr Black interfered with respondent’s treatment of the claimant or influenced the investigation, disciplinary or appeal process or outcome in any way in relation to the incident on 21 March 2011.

THE LAW

30. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

31. Article 130(1) provides that 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 principle 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.

32. Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

33. Under Article 130(4) 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 and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

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

34. It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods-v-Jones [1983] ICR17, such that;

1. The starting point should always be the words of Article 130(4).

2. In applying the Article 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 from 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 the dismissal falls outside the band it is unfair.

35. In the context of a misconduct case Arnold J in British Home Stores-v-Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon 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 three 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 upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more 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, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion”.

36. Harvey on Industrial Relations and Employment Law at Division DI Unfair Dismissal / Reasonableness: General Principles/Applying era section 98(4) > (4) Generally relevant factors ,discusses length of service and consistency as factors relevant to the concept of reasonableness of a decision to dismiss and sets out at paragraphs:

[1035]

‘….In misconduct cases it may influence the question whether dismissal is a fair sanction to impose …and it may lead a tribunal to take the view that a reasonable employer ought to give the benefit of the doubt to long serving employees where evidence is in conflict … Obviously, however, it will not be a factor of any, or any significant, weight where gross misconduct is concerned… As the EAT put it …this means that in gross misconduct cases, length of service will not save the employee from dismissal….’

[1037]

‘Generally the inconsistent behaviour will arise in one of two ways. First, the employer may treat employees in a similar position differently. Second, he may in relation to a particular employee have treated certain conduct leniently in the past and then suddenly treated it as a dismissible offence without any warning of this change in attitude. Both forms of inconsistency may render a dismissal unfair.’

[1040]

‘However….although the employer should consider how previous similar situations have been dealt with, the allegedly similar situations must truly be similar….In practice this is likely to set significant limitations on the circumstances in which alleged inequitable or disparate treatment can render an otherwise fair dismissal unfair….’

[1042]

‘…. if an employer consciously distinguishes between two cases, the dismissal can be successfully challenged only if there is no rational basis for the distinction made….’

[1043]

‘… even if there is clear inconsistency, this is only a factor which may have to give way to flexibility. Accordingly if, say, an employer has been unduly lenient in the past, he will be able to dismiss fairly in future notwithstanding the inconsistent treatment....’

APPLICATION OF THE LAW TO THE FACTS FOUND

37. The burden of proof is on the respondent to establish the reason for the dismissal and that it was for a reason relating to the conduct of the claimant. It was not in dispute that the respondent’s genuine reason for the claimant’s dismissal related to his conduct. Misconduct is a potentially fair reason for dismissal.

Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal?

38. The tribunal as it is satisfied as to the reason must next decide whether the respondent acted reasonably in treating the conduct as a sufficient reason for the dismissal, that is, whether the dismissal was procedurally fair and within a range of reasonable responses, taking into account all the circumstances including the size of administrative resources of the employer’s undertaking, and equity and substantial merits of the case. In deciding this the tribunal must consider whether the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief, whether the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances when he formed that belief on those grounds, and whether the misconduct in question was a sufficient reason for dismissing the employee. It is not the tribunal’s role to retry the allegation of misconduct against the claimant, nor to consider whether we personally think that dismissal was fair, or to substitute our decision as to what was the correct course for that of the respondent, but to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief?

39. The tribunal finds the evidence of both Mr O’Reilly and Mr Lamph credible and is persuaded that the respondent had a reasonable suspicion amounting to a belief in the misconduct of the claimant and reasonable grounds on which to sustain it, in light of the CCTV evidence available to it, the claimant’s acknowledgement after watching it that he had not put the money in the safe and no dispute having been raised as to the respondent’s genuine belief or grounds for same.

40. Did the respondent carry out as much investigation into the matter as was reasonable in all the circumstances?

41. The tribunal is persuaded that the respondent when it formed a belief in the misconduct of the claimant had carried out as much investigation into the matter as was reasonable in all the circumstances so as to justify its state of mind at the moment of dismissal. Mr Duncan carried out a fair and thorough initial investigation, Mr O’Reilly went through and watched every minute of the CCTV evidence with the claimant, gave him proper opportunity to consider the evidence against him and to give his account, and at the point in time the decision to dismiss was made the claimant had acknowledged to the respondent that he had failed to put the money into the drop safe. No suggestion has been made by the claimant that the way in which the respondent carried out its investigation was procedurally defective or unreasonable in any way.

Was the misconduct in question a sufficient reason for dismissing the employee?

42. The issue for the tribunal is not whether a lesser penalty would have been appropriate but whether for the misconduct in question the penalty of dismissal fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. The claimant referred to his long service, the blemishes on his record being unfair and that his dismissal was inconsistent with the respondent’s treatment of another employee for a similar if not indeed a more serious offence. The tribunal is not persuaded that the claimant’s length of service with the respondent is sufficient a factor to save him from dismissal in a case such as this where there is no conflict in the evidence and the offence is one of gross misconduct. The tribunal found Mr Lamph a credible witness and is satisfied that the ‘blemishes’ on the claimant’s previous record were not taken into consideration in his decision to uphold the claimant’s dismissal. The tribunal find that Mr Lamph gave consideration to whether the treatment of the claimant was inconsistent with that of Mr Black and that he consciously distinguished the cases as different based on a rational basis such that the claimant was personally responsible for the money which went missing whereas the respondent was unable in the other case to identify the individual manager who failed to count the money in the safe correctly , that Mr Black was in charge of those managers and so he was given a final written warning. The tribunal accepts that the two situations referred to by the claimant are not the ‘same’ and not sufficient basis to show inconsistent treatment of the claimant. Documentation issued to the claimant in the course of his employment clearly identifies the cash handling procedures to be followed and the failure to immediately place company money into safe custody as a specific example of gross misconduct warranting summary dismissal , both of which the claimant was aware. In all the circumstances the tribunal finds that the respondent’s decision to dismiss the claimant for his failure to immediately drop money into the safe in breach of required procedure and in respect of which there was clear warning in documentation provided to the claimant that he could face summary dismissal for this, was within a band of reasonable responses which a reasonable employer might have adopted in the circumstances and a sufficient reason for dismissing the claimant.

CONCLUSION

43. It is the tribunal’s unanimous finding that the respondent has shown that the reason for dismissal was misconduct, that the claimant’s dismissal was procedurally fair, that the respondent’s decision to dismiss the claimant fell within a band of reasonable responses which a reasonable employer might have adopted and as such that the respondent acted reasonably in all the circumstances including the size and administrative resources of the respondent’s undertaking, in treating the claimant’s misconduct as a sufficient reason for dismissing the claimant, in accordance with equity and the substantial merits of the case .The dismissal of the claimant by the respondent is fair under Article 130 of the 1996 Order .The claimant’s claim of unfair dismissal against the respondent is accordingly dismissed.

Chairman:

Date and place of hearing: 20 and 21 February 2012, Belfast.

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hacine-Bacha v Rahon Enterprises Ltd [2012] NIIT 01668_11IT (19 April 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/01668_11IT.html Cite as: [2012] NIIT 1668_11IT, [2012] NIIT 01668_11IT

Industrial Tribunals Northern Ireland Decisions