McMinn v Wilma McLean, Vincent Paul McL... [2013] NIIT 02221

THE INDUSTRIAL TRIBUNALS

CASE REF: 2221/12

CLAIMANT: Karen McMinn

RESPONDENTS: Wilma McLean, Vincent Paul McLean,

Samuel James McLean, and Catherine Anne Carson,

t/a A McLean Bookmakers

DECISION

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

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mr E Grant

Mr J Patterson

Appearances:

The claimant did not appear and did not instruct anybody to represent her. However, James Donley of the GMB informed the tribunal by an e-mail of 11 April 2013 that, with the claimant’s authority and having agreed the content of the e-mail on her behalf, he was indicating that the tribunal hearing was to proceed in the absence of the claimant or she would withdraw her case. He also indicated that the claimant had not been able to attend the previous Case Management Discussion due to being admitted to hospital with a serious lung infection. However, no medical evidence was provided to the tribunal. Therefore the tribunal heard the case in her absence, as the claimant explicitly said (in the e-mail sent on her behalf by Mr Donley) that she did not want to have a postponement of the hearing.

The respondents were represented by Mr Barry Mulqueen, Barrister-at-Law, instructed by O’Hare Solicitors.

PRELIMINARY MATTER 1

The title of the respondents was amended to include the name of Mr Vincent Paul McLean and now reads as follows:-

Wilma McLean, Vincent Paul McLean, Samuel James McLean and Catherine Anne Carson trading as A McLean Bookmakers.

PRELIMINARY MATTER 2

At the outset of the hearing Mr Mulqueen applied to have the claimant’s claim struck out. He argued persuasively that she was in breach of an interlocutory order of the tribunal made at the Case Management Discussion and the e-mail from James Donley constituted a withdrawal of the claimant’s case.

The tribunal did not accede to this application for two reasons:-

(1) the interlocutory order was contained in the Record of Proceedings of the Case Management Discussion and did not give notice of penalties for non-compliance; and

(2) the tribunal considered that the “withdrawal” contained in the e-mail from James Donley dated 11 April 2013 did not satisfy the requirements of Rules 25(1) and (2) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 as it did not emanate from the claimant.

SOURCES OF EVIDENCE

1. The claimant did not provide any written representations but her originating application to the tribunal dated 5 November 2012 was considered in the hearing of the case.

2. Mr Kevin Devenney, Ms Linda McDowell and Mr Vincent Paul McLean gave oral evidence on behalf of the respondents. Additionally, the respondents proffered a booklet of documents which was considered by the tribunal.

THE CLAIM AND THE DEFENCE

3. The claimant claimed that she had been unfairly dismissed. The respondents denied this, claiming that the claimant had been fairly dismissed for gambling which was a breach of their disciplinary procedure.

THE RELEVANT LAW

4. The relevant law relating to unfair dismissal is contained in Articles 126 to 130A of The Employment Rights (Northern Ireland) Order 1996.

THE FACTS

5. The claimant worked as a Cashier for the respondents in their Cavehill branch.

6. The respondents operate a chain of bookmakers.

7. By a memorandum dated 28 April 2008 the staff of the respondents, amongst other matters, were informed as follows:-

“Staff Gambling

No member of staff is allowed to place bets or play the Machines in the shop that they are either based in, or roistered (presumably rostered) to work for that day.

If a customer requests a bet to be written, permission should always be sought from the Shop Manager and if permission is given the bet to be signed by the Manager with “Written for customer” recorded on the slip.

A BREACH OF THE ABOVE WILL BE CLASSED AS GROSS MISCONDUCT AND AS SUCH COULD LEAD TO DISMISSAL”

The claimant had been gambling contrary to the terms of the memorandum and acknowledged that she was aware that a breach of the memorandum was classed as gross misconduct and as such could lead to dismissal.

8. By a letter dated 15 January 2009, Ms Linda McDowell, the Operations Manager of the respondents, issued the claimant with a final written warning for breach of the company’s disciplinary procedure regarding gambling. This letter also contained a warning that future breaches of this procedure could result in the claimant’s dismissal. It was also confirmed that the claimant was not to write bets for customers at any time.

9. As a result of a routine check carried out by Mr Kevin Devenney, the security manager for the respondents, a number of betting slips were found that appeared to have been issued by the claimant in respect of her own betting. By an investigatory meeting of 8 August 2012, these slips were shown to the claimant in respect of bets for 9, 10, 11 July 2012 and the claimant admitted that they were hers. The claimant confirmed that she was aware of the 2008 memorandum regarding the policy that gambling by staff could lead to dismissal.

10. By a letter dated 8 August 2012 to the claimant Miss Linda McDowell invited the claimant to a disciplinary hearing and set out the reason for this. The claimant also signed a statement admitting the offence dated 8 August 2012, and a separate statement about suspension which also notified the claimant of her right to be accompanied.

11. The reason why she was summoned to the disciplinary hearing was “staff gambling”.

12. The claimant did not exercise her right of accompaniment at the disciplinary hearing which took place on 10 August 2012 before Miss Linda McDowell with notes taken by Mr Kevin Devenney. She confirmed that she had gambled through “stupidity and boredom”. The claimant was advised that she was dismissed for gross misconduct, and of her right of appeal. The outcome of her disciplinary hearing was confirmed to her in writing by a letter from Ms Linda McDowell dated 13 August 2012.

13. By a letter dated 22 August 2012 the claimant appealed her dismissal to Mr Paul McLean. She alleged that she had not been told of her statutory right to appeal any formal disciplinary sanction and the statutory right to be accompanied at any formal disciplinary hearing. By a letter dated 17 September 2012 Mr Paul McLean informed the claimant that the appeal meeting would be rescheduled to Wednesday, 26 September 2012 and noted that she was to be accompanied by her Trade Union official. Copies of all the information relating to her dismissal from the respondents were enclosed with that letter. The hearing took place on 26 September 2012 and the claimant challenged the notes of the investigation and the disciplinary stages of the process. However, at each stage she admitted to gambling and at the very end of the hearing Mr McLean asked the claimant whether she would guarantee not to gamble in future if he gave her another warning. The claimant indicated in response to this “You can never say never…”.

14. In the claimant’s claim to the tribunal she contends amongst other issues that there was statutory unfairness in or around her dismissal and we deal further with this in paragraph 19 of this decision. We mention this at this stage to set it in the context of the process carried out by the respondents. She alleged she was not treated fairly in comparison to other colleagues and the decision to dismiss was not within the band of reasonable responses. Mr McLean investigated all these allegations and raised her complaints regarding the investigation and the disciplinary parts of the process with Mr Devenney and Ms McDowell. Both Mr Devenney and Ms McDowell responded fully to the claimant’s allegations and Mr McLean sent copies of his e-mails to them and their responses to him to the claimant giving the claimant an opportunity to make further representations in this covering letter to her dated 25 October 2012. The claimant did not address any of these points and by a letter dated 19 November 2012 Mr McLean indicated that his deliberations had closed and he upheld the decision to dismiss her.

15. The claimant then issued a grievance against Mr McLean and Mr Devenney by a letter dated 23 November 2012. Mr McLean responded to her by a letter dated 7 January 2013 and the outcome in the letter was that the grievance was not upheld.

CONCLUSIONS

16. By virtue of Article 130 of The Employment Rights (Northern Ireland) Order 1996, (“the 1996 Order”) an employer has the responsibility of showing the reason for dismissal of the employee. In this case we are satisfied that the reason for dismissal related to the conduct of the employee.

17. In reaching the decision whether the employer has shown whether the dismissal is fair or unfair the tribunal has to consider Article 130(4) of the 1996 Order. Tribunals have the benefit of the guidance set down in the case of British Home Stores v Burchell [1978] IRLR 379. This provides a three part test for the tribunal to consider and against which to measure the conduct of the employer. The employer must believe that the claimant was guilty of misconduct and have reasonable grounds for believing it, reached after as much investigation as was reasonable in all the circumstances of the case. In the hearing of this case the tribunal was shown a substantial number of betting slips and these were certainly grounds for concern. In the disciplinary process carried out by the respondents the claimant acknowledged that these were hers and that she had been betting (contrary to the disciplinary policy of which she was aware) during working hours in her branch of the respondents’ organisation. The claimant admitted that she was aware that this was an offence of gross misconduct and that she had previously received a final written warning for the same offence in January 2009. This admission causes us to consider it was reasonable to believe the claimant was guilty of the misconduct. Given the admissions by the claimant the tribunal was satisfied that the investigation carried out by Mr Devenney was appropriate and reasonable in all the circumstances of the case. It is settled law that a lesser amount of investigation is required where there is an admission of misconduct.

18. In relation to the disciplinary meeting, the claimant alleged that other employees had been less severely treated for the same offence. This allegation was investigated by Mr McLean and found to be without merit.

19. Additionally, the claimant suggested in her claim to the tribunal that there had been certain items of statutory unfairness in that: “She was not informed, in advance of that meeting that she was entitled under Article 12 of The Employment Relations (NI) Order 1999 to bring a Trade Union Representative with her nor was she informed that the respondent was contemplating dismissal”. We did not find any statutory or general procedural unfairness in this case and we are satisfied from the evidence of Mr Paul McLean that even if such an allegation were found to be true, the outcome would have been the same in accordance with Article 130A of the 1996 Order, as the claimant had accepted that she was guilty of the misconduct alleged and there were strong industry reasons for regarding this conduct as a matter of gross misconduct justifying dismissal. Finally, we also consider that the respondents have demonstrated that the employer acted reasonably in treating this as a sufficient reason for dismissing the claimant. Mr McLean gave evidence to the tribunal indicating that the issue of staff gambling was extremely important. Permitting it invariably leads to escalated betting, with losses being first made up out of pay, and then out of the till. Additionally, it leads to late bets. In general, this is contrary to industry policy. Therefore we consider that a reasonable employer faced with the situation facing the respondents would have dismissed the claimant. Consequently, dismissal is within the band of reasonable responses to misconduct of this nature. For all these reasons we dismiss the claimant’s claim.

Chairman:

Date and place of hearing: 15 April 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 >> McMinn v Wilma McLean, Vincent Paul McL... [2013] NIIT 02221_12IT (08 May 2013) URL: http://www.bailii.org/nie/cases/NIIT/2013/2221_12IT.html Cite as: [2013] NIIT 02221_12IT, [2013] NIIT 2221_12IT

Industrial Tribunals Northern Ireland Decisions