Bell v Windmill NI Limited t/a Burger... [2013] NIIT 1196

THE INDUSTRIAL TRIBUNALS

CASE REF: 1196/13

CLAIMANT: Ryan Christopher Bell

RESPONDENT: Windmill NI Limited t/a Burger King

DECISION

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

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Mr P Kearns

Mr R Schofield

Appearances:

The claimant was represented by Mr G Bell.

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

1. The claimant complained in his claim that he was unfairly dismissed for gross misconduct for theft of a single plaster from the neighbouring Tesco Store, a breach of trust, and bringing the respondent company into disrepute. The claimant considered his dismissal to be unfair because; the accusation of theft was false because he paid for the item to the satisfaction of Tesco management and no evidence was presented at disciplinary or appeal hearings to support the accusation; the action was not proportionate or did not warrant dismissal in the absence of previous warnings; full fair and proper disciplinary proceedings were not carried out including factual inaccuracies and false representations in his dismissal and appeal outcome letters; during the disciplinary and appeal processes that he was the subject of intimidatory conduct from company management specifically Mr Patrick Keenan and Mr Robert Ferguson.

2. The respondent resisted the claimant’s claims and asserted that it had fairly dismissed the claimant for gross misconduct following a full and fair disciplinary procedure and submitted that the claimant only paid for the item after discovery of theft by Tesco store security.

3. Mr Bell during the hearing raised the respondent’s policy of only allowing work colleagues to attend disciplinary and appeal meetings as a procedural defect but on Mr McEvoy’s objection that no specific complaint was made in the claimant’s originating claim under the Employment Relations (Northern Ireland) Order 1999, which makes provision for a worker to be accompanied also by a trade union official, Mr Bell confirmed that he did not wish to seek to amend the originating complaint or pursue the point.

ISSUES ON LIABILITY

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

· Was the dismissal automatically unfair for failure to follow the statutory disciplinary and dismissal procedures?

Otherwise,

· Has the respondent shown the reason for dismissal?

· Was it for a reason relating to the conduct of the claimant?

· Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal? That is:-

o Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant, reasonable grounds upon which to sustain the belief, and at the stage the belief was formed on those grounds had the respondent carried out as much investigation into the matter as was reasonable in all the circumstances?

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

EVIDENCE

5. The tribunal considered the claim, response and an agreed bundle of documents. Oral evidence was heard from Mr Patrick Keenan, Area Manager of five of the respondent’s twenty restaurants including where the claimant was employed, Mr Robert Ferguson, Area Manager of all of the respondent restaurants in Northern Ireland and from the claimant.

FINDINGS OF FACT RELEVANT TO LIABILITY

6. The respondent has twenty restaurants in Northern Ireland. The claimant who was born on 14 December 1993 was employed by the respondent from 18 November 2010 until 18 April 2013 as a customer sales assistant initially at its Abbey Centre restaurant but transferred to its restaurant at Northcott shopping centre in January 2013.

7. On commencement of his employment the claimant was provided with a copy of the respondent’s employee handbook. The handbook sets out, ‘Examples of gross misconduct resulting in dismissals’ including, ‘Breach of responsibility/ trust’ and ‘Theft or dishonesty of any nature’. Under ‘Conduct outside Work’ the handbook states, ‘Although your conduct outside work is normally of no concern of the Company, if your activities outside work are likely to reflect serious discredit on the Company then that may lead to the termination of your employment, by summary dismissal in the most serious of cases.’

8. The respondent’s Northcott restaurant is situated in a shopping centre approximately twenty metres opposite the entrance to a Tesco Store. Tesco’s own the shopping centre building and are the respondent’s landlord.

9. On Saturday, 13 April 2013 the claimant attended work with a cut finger and during his shift was provided with plasters by the respondent as and when required by him without difficulty.

10. At the end of his shift the claimant left the respondent’s premises still wearing his uniform including his hat and went into the Tesco Store.

11. Whilst in the Tesco Store the claimant removed a plaster from a box of plasters for use on his finger, the claimant placed the box of plasters on a shelf, proceeded to purchase a tub of flora and then left Tesco’s premises without paying for the box of plasters.

12. After the claimant had left Tesco’s premises he was confronted by a Tesco Security Guard who brought the claimant back over to the respondent’s restaurant and spoke with the restaurant manager on duty, Mr David Dornan. Tesco’s Duty Manager was also subsequently called over to the respondent’s premises.

13. On Sunday, 14 April 2013, Mr Dornan telephoned Mr Keenan and informed him that the previous night the claimant had been accused of taking a plaster without paying for it, that the claimant had admitted taking the plaster and had paid for it subsequently. Mr Keenan instructed Mr Dornan to tell the claimant to come and see him on Monday afternoon.

14. Following his conversation with Mr Doran, Mr Keenan asked him for a time line of events which Mr Dornan provided orally. Mr Keenan also spoke with the Tesco Security Guard but neither the Tesco Security Guard nor Tesco Duty Manager would give Mr Keenan a formal written statement. Mr Keenan did not, prior to meeting with the claimant, obtain a written time line or written statement from Mr Dornan or keep a written record of his initial investigation.

15. On Monday, 15 April 2013 the claimant was given by his restaurant manager, Mr Baraevo Marion, a written notice of suspension from work pending an investigation into alleged ‘stealing from Tesco, breach of trust – Bringing company into disrepute’ together with a disciplinary meeting invite asking him to attend a disciplinary meeting regarding ‘stealing from Tesco – breach of trust, bringing company into disrepute’, on 18 April 2013 at 17:00. The claimant was informed that he could be accompanied by a member of staff. On receipt of the invitation the claimant asked Mr Marion whether he was going to lose his job.

16. The claimant attended the disciplinary meeting conducted by Mr Keenan on 18 April 2013 accompanied by a fellow staff member, Ms Natasha McMahon. Ms Claire O’Neill, one of the respondent’s assistant managers, was present as a note taker. Whilst three pages of handwritten minutes of the meeting were produced by the respondent their completeness due to their brevity was challenged by Mr Bell at hearing based on the claimant’s recollection of the meeting having been around twenty five minutes long, along with the addition by Mr Keenan to the penultimate paragraph of the words ‘company name into disrepute + breached any trust the company has + have left me no choice but to terminate your contract’ which Mr Keenan claimed was done at the close of the meeting in the presence of the claimant but the claimant could not recollect and disputed. No record was kept of the time the meeting concluded on the minutes produced. The tribunal notes that the claimant read and signed the disciplinary minutes on conclusion of the meeting and on balance finds that the excepts recorded are accurate as follows:-

‘Paddy: know why you’re here [?]

Ryan: Security man approached me thinking I wasn’t going to pay.

Paddy: you can’t just take something without paying for it.

Ryan: Yea said yea - were going to pay for it.

Paddy: Were you wearing your hat [?].

Ryan: Yes.

Paddy: Why did you steal the plasters [?].

Ryan: I cut myself and I opened the plasters without paying for them.

Paddy: You can’t just [open] them without paying for them.

Ryan: I told the security man that I was going to pay, but yea just walked out.

Paddy: Why did you [leave] without paying for them [?].

Ryan: I was going to pay for them.

Paddy: But you didn’t, you just walked out of the shop without paying. Thomas said you walked out without paying then he pulled you and asked did you pay and Ryan said he didn’t.

Why did you not take ones out of work [?].

Ryan: Didn’t want work to run out.

Paddy: I sort that out, you have brought the company name down…’

On conclusion of the disciplinary meeting Mr Keenan dismissed the claimant and informed him of his right of appeal.

17. By letter dated 19 April 2013 to the claimant Mr Keenan confirmed, ‘Further to our meeting, I can confirm I have carefully considered your replies to the questions asked of you concerning theft of plasters from Tesco. Personnel from Tesco brought this to our attention and have footage of your actions on CCTV. Following your admission that you took the plasters you have breached any trust that the Company has placed in you. Given this incident was brought to our attention by a neighbouring business, you have also brought disrepute to the Company name. I write to confirm you[r] actions were a very serious breach of Company rules and regulations amounting to gross misconduct.

Our staff handbook clearly states that any breach of responsibility / trust and theft or dishonesty of any nature are acts of gross misconduct. I therefore can confirm that your employment with the company is terminated forthwith…’

The claimant was informed of his right of appeal.

18. By letter dated 21 April 2013 the claimant appealed his dismissal on two grounds:-

‘(1) The claims of stealing from Tesco Northcott and damage to the reputation of your company are incorrect.

(2) Full, fair and proper disciplinary proceedings were not carried out by the individuals concerned.’

The claimant indicted that he wished to discuss Mr Keenan’s conduct during the disciplinary process and over recent months and made a request for notes from the disciplinary meeting.

19. An appeal meeting was arranged for and took place on 4 May 2013 conducted by Mr Ferguson accompanied by a note taker; the claimant attended and was accompanied by another staff member. Minutes produced at hearing are accepted as accurate. At the start of the meeting the respondent’s minutes from the disciplinary meeting were first provided to the claimant and the claimant confirmed that he did not wish to discuss his concerns about Mr Keenan but would provide Mr Ferguson a copy of his statement at the end of the meeting. Parties agreed they would just discuss the claimant’s points on proper procedures, stealing and damage to the company and the claimant indicated he was also happy to discuss the unrelated matter of misuse of taxis.

20. The claimant then read out a six page statement he had prepared and summarised his points at the conclusion of his statement as follows:-

‘(i) No theft from Tesco took place as I paid for and always intended to pay for the plasters and this fact has been accepted by Tesco management.

(ii) A minor unfortunate incident has been blown up into something more serious by Mr Keenan as a means to dismiss me.

(iii) Proper disciplinary procedures were not carried [out] – proper consideration was not given to the facts and my explanations of the incident.’

21. In support of his first contention the claimant listed a number of matters including that:-

· At the time he put the plaster on he was not aware he did not have enough money to purchase both items.

· When he did realise he put the box of plasters on a shelf in another aisle that he could easily locate on his return.

· When approached by the Security Guard he was already on his way back to retrieve and pay for the box and stated ‘CCTV images will evidence this’.

· In the presence of the Security Guard he retrieved and paid for the full box of plasters as intended following which Tesco’s Security Guard and Duty Manager accepted his explanation, apologies and that there was no theft or intention to steal.

· Tesco did not record the incident or take any further action.

22. In relation to his second point the claimant referred to previous aggressive behaviour by Mr Keenan relating to words exchanged in the past between the claimant and his manager at the respondent’s Abbey Centre restaurant and his opinion that this had motivated the unfair escalation of a relatively minor issue into a reason to dismiss.

23. In connection with his third point the claimant raised that:-

a. He was unaware of the seriousness of the situation and inadequately prepared for his disciplinary hearing because he was not made aware prior to it that a potential outcome was dismissal.

b. He was not aware notes could be taken on his behalf at the disciplinary meeting and despite asking had not been provided with the respondent’s notes; no evidence of a complaint by Tesco was presented or any opportunity given to view Tesco’s CCTV images of the incident.

c. Mr Keenan was, during the disciplinary meeting, intimidating and at times threatening.

d. Mr Keenan dismissed him immediately at the end of the meeting without proper consideration of explanations and mitigating circumstances provided.

24. The claimant in conclusion asked that consideration be taken of him having received no previous warnings and the potential detrimental effect on his future employment prospects.

25. Following the claimant’s statement Mr Ferguson spoke with the claimant:-

RF: ‘you’re saying you didn’t steal but was a misunderstanding?

RB: Yes

RF: But you admitted to taking the plaster without paying for it.

RB: Didn’t have enough money but went to get some. I told them I was on my way back to pay.

RF: When Paddy interviewed you did you not admit to Paddy you took single plaster [?].

RB: Needed plaster and was bleeding badly. I didn’t realise I hadn’t enough money [until ] after I put plaster on so I put box on shelf where I could go back and get it after I got money. Used lots of BK plasters. I thought there was money in my trousers but was in my bag. I didn’t realise at the time.

RB: Panicked cos [sic] my finger was bleeding badly. Only money was to buy Flora from my Dad.

RF: So you paid for the Flora?

RB: Yes

RF: So why didn’t you pay for plasters instead?

RB: Was my Dad’s money for Flora. Tesco guard got me on way back to the shop to pay for plasters.’

The claimant went on to agree with Mr Ferguson’s suggestion that, ‘surely you should have just paid for the plasters’ but responded that he had been confused, had used plasters twice while at work but had no plaster on when he left work. Mr Ferguson queried had the claimant not asked for a plaster when he finished work but the claimant indicated his concern was that there would have been none left for anyone else as they were running out. Mr Ferguson put to the claimant that the, ‘Guard brought you to BK and you admitted you stole a plaster’, the claimant again responded he was, ‘On way back into Tesco’. The claimant stated, ‘I apologized to guard and manager about the incident but I was panicking cos [sic] my finger was badly bleeding. I panic badly and heart races, and I need to calm down.’ Mr Ferguson queried with the claimant that his finger had, ‘Only started bleeding after work?’. The claimant explained that it had been in work too, he had a bandage on at the start of the day which he took off for work, and he had used two plasters over the three hours he was working.

The claimant confirmed to Mr Ferguson that he did not want to go over anything regarding Mr Keenan at that stage.

At the end of the meeting a discussion took place about an unrelated matter relating to misuse of taxis, which the tribunal find played no part in the claimant’s dismissal.

26. On 7 May 2013 Mr Ferguson wrote to the claimant and asked to meet again because he felt that a proper conclusion could not be drawn until the issues the claimant had raised regarding Mr Keenan had been dealt with and investigated, ‘as resolve on this matter may directly affect the outcome of your appeal.’

27. Prior to his second meeting with the claimant Mr Ferguson was provided with written statements from:-

· Mr Keenan responding to and denying the allegations made against him by the claimant.

· Mr David Dornan which set out:-

‘….At around 9.40 I saw the security officer ask Ryan on the way out of Tesco could he have a word with him. At 9.55 the security officer and Ryan came into Burger King w[h]ere I was informed that Ryan had tak[en] a plaster out of a box and replaced the box on the shelf before leaving Tesco’s.

The Duty Manager from Tesco’s was called over so that she could have a word with Ryan. Ryan openly admitted to taking the plaster and leaving Tesco without paying for it. The Security officer, Duty manager and myself were present when he said this.

At no time between 9pm and 9.55pm was Ryan in Burger King.’

· Mr Baraevo Marian stating that when the claimant came down on the 15 April 2013 he gave him the disciplinary letter and the claimant had asked him if he was going to lose his job.

· Ms Natasha McMahon confirming that Mr Keenan was fair, not aggressive or threatening towards the claimant in his disciplinary meeting, allowed him the chance to put his story although challenged it and did not threaten him with the police or tell him he’d lost his job before the conclusion of the meeting.

· Ms Claire O’Neill setting out that Mr Keenan did not interrupt or threaten the claimant with the police and was not aggressive or intimidating at the disciplinary meeting.

· Jonathan McCrea and Collette Murray setting out events leading to the claimant transferring to the respondent’s Northcott restaurant to start afresh.

28. A second meeting was subsequently arranged and took place on 25 May 2013 conducted by Mr Ferguson, accompanied by a note taker, which the claimant attended accompanied by another staff member. Minutes of the meeting were produced and are accepted as accurate. The claimant at the outset read out a five page statement relating to two issues concerning Mr Keenan impacting on his dismissal which were summarised by the claimant as,

‘(i) Mr Keenan’s rush to judge and dismiss me within a matter of days of a relatively minor incident which Tesco management had confirmed that they were not treating as theft, and had not even recorded as an incident.

(ii) Mr Keenan’s unsatisfactory handling of the disciplinary procedures against me , in particular his intimidatory conduct during my disciplinary interview resulting in full fair and proper disciplinary proceedings not being carried out by the company in accordance with recognised practice.’

The claimant referred to a number of matters relating to Mr Keenan’s handling of the disciplinary process and re-visited points he considered he had raised at his first appeal hearing but were not discussed, which in conclusion he believed demonstrated that he had been victimised by Mr Keenan and that his dismissal had underlying motives and was grossly unfair. In summary the claimant raised:-

· The failure to inform him before the disciplinary meeting that the potential outcome could be dismissal.

· Mr Keenan’s conduct at hearing having been intimidating and at times threatening, interrupting him repeatedly, telling him that by admitting leaving with the plaster on his finger he was a thief, that he couldn’t trust the claimant and asking whether he wanted him to call the police.

· He was unaware until after the disciplinary meeting he could have notes taken, was not provided with the respondent’s notes until the start of the appeal and these were ‘extremely selective and sketchy’ and contained notes he suspected were added after the meeting by Mr Keenan.

· No evidence was provided at the disciplinary hearing of a complaint or statement by Tesco.

· He was not interviewed as part of a prior investigation and if one was conducted by Mr Keenan he should not have conducted the disciplinary interview.

· Mr Keenan indicated by saying, ‘you do know you are going to lose your job don’t you?’ before the interview ended that he had already made his decision.

· Mr Keenan attempting to bully him into not appealing by questioning ‘I don’t know what you are appealing for?’

· That Mr Keenan had used this incident as an opportunity to avenge previous disagreements between him and Mr Keenan’s girlfriend who had been the claimant’s former manager at the respondent’s Abbey Centre store from which the claimant transferred after not getting on with her.

· That Mr Keenan chose to ignore mitigating factors that:-

o One single plaster was involved;

o Burger King’s plasters kept coming off;

o The claimant was unaware he had insufficient money when he put the plaster on;

o He was on his way back to Tesco after fetching money when stopped;

o He paid for the plasters in the presence of the security guard;

o He apologised to Tesco management;

o Tesco accepted there was no theft or intention to steal and did not take further; and

o He had no previous warnings.

After listening to the claimant’s statement Mr Ferguson referred the claimant back to his initial statement from the first meeting and went through it point by point, discussing in detail matters raised by the claimant. The meeting took in excess of two hours. In particular Mr Ferguson:-

· Put to the claimant,

‘R: you had money to pay for plaster

RY: not my money. I left plaster in another aisle to retrieve

R: you admit you removed a single plaster without paying for it

RY: yes

R: U [sic] were approached by security – on way back to pay. 2 witnesses say you didn’t come back but you returned with security. That was the first time you came back. I have witnesses you didn’t return to get money and security came back with you

RY: I was stopped coming back

R: you were stopped leaving Tesco

RY: that’s incorrect’.

· Discussed with the claimant why it was Tesco who brought him to the respondent if there was no theft with intention to steal and put it to him that whilst Tesco had not recorded the matter as an incident the respondent had as it was brought to them by Tesco.

· Discussed again the claimant’s admission that he had enough money at the time to pay for the plasters, the claimant agreed but stated that it was for the Flora. The claimant agreed that he went to get the plasters first.

· Put to the claimant that dishonesty in any way is an issue and referred him to the statement that ‘dishonesty does bring the company into disrepute’ in the company handbook which the claimant confirmed he possessed.

· Discussed the claimant’s contention that he was not made aware prior to the disciplinary meeting of the potential outcome being dismissal and so of the seriousness of the situation. Mr Ferguson put to the claimant that he had a statement that the claimant had, ‘asked staff if you were going to get sacked you were aware of the seriousness’. The claimant replied, ‘I was just asking if that was the potential outcome’, Mr Ferguson put to him, ‘you were aware that could be the outcome’, the claimant responded ‘I was just asking if being dismissed was an option’.

· In relation to the claimant’s point that he did not know he could take notes Mr Ferguson queried whether the claimant asked at any time whether he could do so, the claimant indicated he did not as he did not know he could. Mr Ferguson referred to having given the claimant the respondent’s notes of the disciplinary meeting at his first appeal hearing and asked, ‘did you not have time to read those notes. Did you ask could you read the notes’, the claimant responded ‘no’.

· Put to the claimant in respect of his point about not being given the opportunity to view CCTV and that there was no complaint to the respondent, that the complaint was a verbal one, the incident was reported to the respondent and the evidence was security bringing the claimant to them. Mr Ferguson confirmed that data protection did not allow him to view the images but that if the claimant wanted to view CCTV the claimant would have to contact Tesco. Whilst Mr Ferguson acknowledged that the claimant had apologised to Tesco’s Security Guard and Duty Manager and they were not taking it any further he put to the claimant that if someone takes a complaint to the respondent they still need to investigate it.

· In respect of the claimant’s point regarding Mr Keenan being intimidating, referred to there being only the claimant, Mr Keenan, Ms Clare O’Neill and Ms Natasha McMahon present at the disciplinary meeting and that he had, ‘2 statements saying at no time was Paddy saying they felt there was no intimidation from Paddy to you’. Mr Ferguson queried whether the claimant was not able to get his full story across but the claimant confirmed, ‘I was able to put my full story across’. Mr Ferguson put to the claimant that Mr Keenan was not accusing him but was making a factual statement and put to him, ‘You removed stock from Tesco so that is dishonesty. Theft is theft.’ The claimant responded, ‘But I wouldn’t take £100’. Mr Ferguson replied ‘It doesn’t matter if its £100 or a 50P plaster…’

· Indicated that Mr Keenan had denied making a statement about calling the police and he had a statement saying that Tesco’s didn’t want the police involved and that the two witnesses did not have that point either. The claimant responded, ‘No he said do you want me to call the police now!’ Mr Ferguson reiterated, ‘Well Paddy denying this and 2 statements don’t mention it.’

· Put to the claimant in respect of his suggestion that Mr Keenan had commented the claimant was going to lose his job before the meeting was over and had already made his decision, ‘Paddy denies this and 2 witnesses’. The claimant challenged this and stated that they were trying to get him dismissed, Mr Ferguson put to him that Ms Natasha McMahon was an independent witness and had no reason to lie but the claimant stated that he disagreed with what she was saying.

· Discussed with the claimant alleged aggressive behaviour relating to the Abbey Centre. Mr Ferguson established that the claimant had not brought up at any time with Mr Keenan the matter of his manager’s behaviour, or as per the handbook written to the office, that the claimant had worked previously with Mr Keenan and had never received a warning from him. In discussing events surrounding the claimant leaving the Abbey Centre restaurant after difficulties with his manager Mr Ferguson put to the claimant, ‘As far as I’m aware you walked out as you didn’t like Abbey Centre so Paddy let you go to Glengormley to help you’, the claimant took issue that he had walked out responding to Mr Ferguson that he had left with his managers permission. Mr Ferguson confirmed, ‘I’ve a statement from a supervisor that you walked out’, the claimant responded, ‘He would be lying, I wasn’t in right frame of mind. So they clocked me out, giving me permission by clocking me out.’ Mr Ferguson put to the claimant, ‘I’ve other people stating you walked out’, the claimant replied, ‘that’s incorrect, that’s unfair’. Mr Ferguson continued to put to the claimant that there was no record of evidence of previous aggressive behaviour toward the claimant by Mr Keenan with which ultimately the claimant agreed.

29. The claimant wrote a letter to Mr Ferguson on 27 May 2013, ‘to say that I am sorry if you feel that the incident in Tesco has harmed the reputation of Burger King at Northcott and also to ask you to accept my honest explanations and give me my job back…’.

30. By letter dated 4 June 2013 Mr Ferguson confirmed to the claimant his decision that he had been fairly dismissed on 18 April 2013. Mr Ferguson set out:

‘In response to specifics you put forward as the basis of your appeal, I have concluded the following:-

· Minor Incident - Our Company does not and cannot afford to consider any form of dishonesty as ‘‘minor’’.

· No intention of theft – Our decisions must be based on your admission of facts, not intention.

· Intimidatory conduct of Mr Keenan – I believe we established that witnesses present at your original meeting did not support your allegations of intimidation. Also during the course of our second meeting you admitted Paddy had been supportive and understanding throughout your employment and indeed had afforded you a fair hearing.

· Ability to take notes – At no time were you denied the opportunity to take notes, nor did you ask to do so. Our notes were later made available to you.

· No complaint from Tesco – You are fully aware that Tesco brought this to our attention as you were present when they escorted you back to our store and discussed the matter.

· Speed of decision – As you had admitted to Paddy Keenan that you had taken the plaster without paying; Mr Keenan felt the decision was straight forward. Our staff handbook clearly and categorically states that dishonesty of any nature is an act of gross misconduct warranting summary dismissal. Mr Keenan felt no reasonable defence was offered during your disciplinary meeting and felt he was in a position to reach a conclusion at the end of the meeting.

· Company reputation – On this occasion your failure to pay, whilst out in a public place in full BK uniform, did reflect on our Company. A neighbouring trader had escorted you to our premises and I have no doubt that your actions, whilst in your uniform have had an adverse effect on our Company’s standing in that local retail environment.

I can further confirm that at no time has consideration been given to your employment at our restaurant at Abbey Centre as it has no relevance to this incident or complaint whatsoever. You have been unable to provide any evidence to support your claim in this respect and I believe no historical employment record has had any impact on the outcome of this process.

I am aware that you have made the situation good and that you sincerely regret your misdemeanour on this occasion. However, we must apply our Company policies, rules and regulations consistently and fairly. On this occasion, given all the information available to me, I must uphold Mr Keenan’s decision that your actions at the time amounted to gross misconduct warranting summary dismissal.’

31. By letter dated 10 June 2013 the claimant made a request under the Data Protection Act for his personnel file, documents and emails relating to the disciplinary process including his disciplinary and appeal meetings.

32. By letter dated 12 June 2013 the claimant wrote to Mr Ferguson to refute as untrue and irreconcilable with the claimant’s evidence the statements in Mr Ferguson’s letter that, ‘‘….we established that witnesses present at your original meeting did not support your allegations of intimidation’’ and ‘‘you admitted that Patrick Keenan had been supportive of you throughout your employment and indeed had afforded you a fair hearing’’. Also the claimant refuted that it was established at the meeting of 25 May 2013 that witnesses present at the meeting on 18 April 2013 did not support the claimant’s allegations of intimidation and that such statements were produced on 25 May 2013.

33. Copies of relevant documentation including an undated time line from Mr David Dornan and undated statements from Mr Patrick Keenan, Mr Baraevo Marian, Ms Natasha McMahon, Ms Claire O’Neill, Ms Collette Murray and Mr Jonathan McCrea were not provided by the respondent to the Claimant until after conclusion of the appeal process.

34. No evidence was adduced at hearing by the claimant in respect of his contention in his originating application of intimidating and aggressive behaviour by Mr Ferguson in the conduct of the appeal hearing.

LAW RELEVANT TO LIABILITY

35. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

36. The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal. The standard procedure consists of three steps. At Step 1 an employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee and send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. Step 2 requires a meeting, the meeting must take place before action is taken (save for suspension). The meeting must not take place unless –

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3 is the provision of an appeal.

The timing and location of meetings must be reasonable.

37. Article 130 of the 1996 Order sets out how the question of whether a dismissal is fair or unfair is to be determined.

38. A dismissal may be regarded as automatically unfair under Article 130A (1) of the 1996 Order where one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal procedure, has not been completed, and, the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements, otherwise Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

39. Where a dismissal is not automatically unfair Article 130(1) of the 1996 Order 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.

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

40. Article 130(1) of the 1996 Order 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.

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

41. Under Article 130(4) of the 1996 Order 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.

42. 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 and 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.

43. This approach was endorsed by the Court of appeal in Rogan V South Eastern Health and Social Care Trust [2009] NICA 47 and Dobbin V Citybus Limited [2008] NICA 42.

44. 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”.

45. The LRA Code of Practice on dealing with disciplinary and grievance issues sets out what is considered to be good employment practice and reasonable behaviour for employers and employees in operating these procedures. Paragraphs 15 and 16 of the LRA Code deal with the first step of formal disciplinary action and importance of informing the employee of the problem so the employee has sufficient information to understand the basis of the case against them including the provision of witness statements, although continues, ‘While actual statements and the names of witnesses may sometimes be withheld, the employee should know the substance of these statements, if not the author…’.Paragraph 16 sets out , ‘[t]he letter or note should invite the employee to a meeting and inform them of the possible consequences of the formal action….’

APPLICATION OF THE LAW TO THE FACTS FOUND

46. The tribunal is satisfied that the minimum requirements under the 2003 Order for a disciplinary and dismissal procedure have been completed and as such the claimant’s dismissal is not automatically unfair under Article 130A (1) of the 1996 Order.

47. Whilst the claimant put the case as part of his appeal that Mr Keenan had used this incident as an opportunity to avenge previous disagreements between the claimant and Mr Keenan’s girlfriend, this did not form part of the claimant’s originating complaint and it was not in dispute at hearing that the respondent’s genuine reason for the claimant’s dismissal related to his conduct. Misconduct is a potentially fair reason for dismissal.

48. It is the tribunal’s job to determine whether the employer has acted in a manner in which a reasonable employer might have acted. It is not for the tribunal 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. The tribunal must decide whether the respondent acted reasonably in treating the conduct as a sufficient reason for the dismissal, considering whether the dismissal was procedurally fair and fell 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.

49. The tribunal found both Mr Keenan and Mr Ferguson credible witnesses and are satisfied that at the time of dismissal and outcome of the claimant’s appeal respectively, both held a genuine belief in the misconduct of the claimant.

50. Mr Bell contended that the claimant’s dismissal was unfair because there was no evidence for the respondent to form a reasonable belief that the claimant was guilty of theft, that no evidence of theft from Tesco was presented, at the disciplinary hearing there was only evidence from the claimant, the claimant’s evidence that he always intended to pay was ignored and that at no stage had the respondent proved any impact on its standing in the local retail environment. Whereas Mr McEvoy submitted given the claimant’s admission of leaving the store with a plaster on his finger taken from a box not paid for meant that the issues for the respondent were, what was the state of mind of the claimant? And, to what extent he was able to convince the respondent?

51. The tribunal are satisfied that the claimant’s explanation that he intended to pay was considered by the respondent before coming to a conclusion. On Mr Keenan’s evidence which the tribunal find credible when asked at disciplinary meeting about the incident the claimant freely admitted to taking the plaster without paying, when asked why he stole the plasters the claimant did not deny having done so but responded that he was confused as his finger was bleeding on the floor and that he meant to pay. The tribunal consider that Mr Keenan, in the absence of any evidence from Tesco, had reasonable grounds upon which to sustain his belief of the misconduct of the claimant and for disbelieving the claimant’s explanation as per his evidence based upon the claimant’s admission of leaving Tesco’s without having paid for the box of plasters, the claimant having been provided by the respondent with plasters throughout his shift, that the claimant did not ask anyone for help or return to the restaurant to ask for another plaster and that when the claimant took the plaster from the box without paying for it and when escorted back to the restaurant by Tesco’s Security Guard the claimant was wearing his company hat making him recognisable as a member of Burger King staff. The tribunal consider Mr Ferguson on appeal likewise had reasonable grounds to sustain his belief in the misconduct of the claimant based upon the claimant’s admission that he left without paying for the box of plasters, that on entering Tesco’s he had sufficient money to pay for the plasters which he went to first, before the Flora, but proceeded then to pay for the Flora rather than paying for the opened plasters and returning for the Flora. Also, that Mr Ferguson had reasonable grounds to consider that the claimant’s actions outside work and being escorted back to it by the Security Guard of a neighbouring trader while in full uniform were likely to reflect serious discredit on the Company.

52. Mr Bell contended that the respondent did not carry out a reasonable investigation, that the employer cannot be the final arbiter of its own conduct in dismissing an employee and that the more serious the allegations and outcome the stronger the evidence should be. Mr McEvoy referred to Stuart v London City Airport Ltd [2013] EWCA Civ 973, in which he submitted the facts have some correlation with this case and directed the tribunal to paragraphs 15 & 16 therein which address the question as to the appropriate level of investigation, which in essence set out that:-

- The objective answer to the question of what reasonableness, or fairness, requires, is inevitably a matter of judgement and evaluation, on which views may reasonably differ and different conclusions be reached as to where the limits of the range of reasonable responses lie.

- No question of principle arose in that case requiring a heightened level of investigation because of the impact of a finding of dishonesty on future employability, albeit acknowledged that there is a spectrum of gravity of misconduct which needs to be taken into account in deciding what fairness requires in a particular case and that an allegation of an offence of dishonesty would be at the higher end.

53. It is noted that the Burchell test often requires a tribunal to undertake a detailed review of what an employer has done to investigate and that investigation is essential where misconduct is in dispute but at the other extreme not so where misconduct is admitted, although may be of importance in allowing the claimant an opportunity to respond and to put forward potential mitigating factors which could affect the appropriate sanction and the respondent’s consideration of these. The relevant question for the tribunal is whether the respondent undertook the level of investigation which fairness required in the circumstances .In this case the claimant did not dispute being escorted back to the respondent’s premises whilst still in his uniform by a Tesco Security Guard and that he had admitted to leaving Tesco’s premises without paying for the box of plasters but put forward in explanation that his intention was to return to pay. On appeal the claimant indicted that he was on his way back to the Tesco store when stopped by the Security Guard whereas the respondent contended that the claimant was on his way out of the store. The respondent did not investigate beyond Mr Dornan’s statement confirming that the claimant was on his way out of Tesco when approached by security and had not returned to the store in the interim. It is noted that an employer is not expected to carry out a quasi-criminal investigation or to be satisfied of misconduct having occurred beyond reasonable doubt. The tribunal on balance consider that the respondent’s conclusion that the undisputed evidence it was aware of pointed strongly toward the commission of a disciplinary offence and did not require further investigation fell within a range of reasonable responses of a reasonable employer, in particular based upon the claimant having had sufficient money on entering Tesco to pay for the box of plasters but proceeded after opening the box and putting on a plaster to then select and pay for a different item before leaving the store, and likewise its conclusion that the respondent’s standing in the local retail environment was likely to be affected as a consequence of the claimant’s actions of opening the box and putting on a plaster, leaving without paying and being escorted back to its premises whilst in full uniform fell within a range of reasonable responses of a reasonable employer. The tribunal is satisfied that the respondent in the circumstances carried out such an investigation as fairness required before reaching its conclusion on the misconduct of the claimant.

In deciding whether the misconduct in question was a sufficient reason for dismissing the employee 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.

54. Mr McEvoy submitted that the incident involved a breach of trust and that the respondent was entitled to adopt a zero tolerance approach provided fair procedures were followed and that the dismissal penalty fell within a band of reasonable responses. Mr Bell contended that the claimant’s dismissal was unfair as the result of a number of procedural defects including that; the claimant was not informed in the disciplinary invite of the seriousness of the matter and potential for dismissal; Mr Keenan spoke to people in investigating the matter but did not write anything down; no prior investigatory meeting was held; statements were not taken from the Tesco Security Guard and Duty Manager; Mr Keenan dealt with matters and dismissed the claimant with remarkable haste; Mr Keenan did not, during the disciplinary meeting, take time to reflect on the evidence; disciplinary notes taken were not a full record; that the claimant’s second appeal meeting was intended to deal with the issue raised about Mr Keenan but went back over all matters and lasted 2¼ hours and during which Mr Ferguson referred to seven different witness statements but did not provide these to the claimant; when statements were eventually provided after conclusion of the appeal process they were undated and did not provide evidence of theft; and, no consideration was given to the claimant’s clear record and age.

55. Mr McEvoy whilst disputing that there was any substantial procedural flaw at the first stage of the disciplinary process contended that any suggestion there was would have been cured at the second stage which, whilst not required, was to all intents a re-hearing rather than just a review. Mr McEvoy submitted that Mr Ferguson came to the appeal with fresh eyes, the claimant got his say with lengthy submissions put in his pre-prepared statements at both meetings, Mr Ferguson was open to further enquiry and information as shown by his seeking further information and arranging a second meeting at which he considered the alleged personal agenda of Mr Keenan to dismiss and alleged theft. Mr McEvoy contended that the omission to show the claimant statements at this meeting was a small oversight against a background of a fairly conducted appeal process and that as per Ulsterbus v Henderson [1989] IRLR 251, NICA there is no obligation to allow statements and that the process is not required to be a quasi-judicial one.

56. The tribunal on balance is persuaded that potential defects at the first stage of the disciplinary process were effectively remedied by the appeal process which was overall thorough and fair with the claimant having full opportunity to put his case, as acknowledged by the claimant at hearing ,through his two meetings with Mr Ferguson the second of which again reviewed matters raised in detail as well as Mr Keenan’s behaviour, following the claimant’s suggestion in correspondence between times that certain matters had previously been overlooked. Whilst witness statements were not shared the claimant was informed of the substance of the statements relied upon and was afforded the opportunity to respond, minutes of the prior disciplinary hearing whilst not provided until the appeal meeting were read and signed by the claimant on conclusion of the disciplinary meeting . The tribunal are satisfied Mr Ferguson gave proper consideration to the written and verbal explanation and submissions made by the claimant whom he considered to be an intelligent young man, and to the alleged personal agenda of Mr Keenan before reaching his conclusion and the tribunal does not consider that the procedure has overall been tainted so as to render the dismissal unfair.

57. Documentation issued to the claimant in the course of his employment clearly identified as a specific example of gross misconduct, ‘Breach of responsibility/ trust’ and ‘Theft or dishonesty of any nature’ and set out ‘Although your conduct outside work is normally of no concern of the Company, if your activities outside work are likely to reflect serious discredit on the Company then that may lead to the termination of your employment, by summary dismissal in the most serious of cases.’ The tribunal in all the circumstances of this case particularly in light of the explicit warnings in its handbook find the respondent’s decision to dismiss the claimant despite his clear record fell within a band of reasonable responses which a reasonable employer might have adopted in the circumstances and was a sufficient reason for dismissing the claimant.

58. The tribunal find procedures followed by the respondent were overall fair, that the respondent carried out as much investigation into the circumstances as was reasonable and the Burchell test has been met. As per Lord Justice Underhill’s summation in Stuart v London City Airport the tribunal would point out that its decision is not one that the claimant was in fact guilty of theft, the question for the tribunal having been an entirely different one, that is, whether the respondent had, in summary, acted reasonably in dismissing him, which for the reasons set out above the tribunal have concluded it did.

CONCLUSION

59. It is the tribunal’s unanimous finding that the reason for dismissal was misconduct, the dismissal was overall procedurally fair, the respondent’s decision to dismiss the claimant fell within a band of reasonable responses which a reasonable employer might have adopted and 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: 10 September 2013, Belfast.

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 >> Bell v Windmill NI Limited t/a Burger... [2013] NIIT 1196_13IT (13 November 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/1196_13IT.html Cite as: [2013] NIIT 1196_13IT

Industrial Tribunals Northern Ireland Decisions