Brian Tierney v Aquinas Diocesan Grammar School Case Ref 88/09IT

This case serves as a further illustration of the Tribunal’s application of the guidance given in the 1978 case of British Homes Stores -v- Burchell as set out more recently by the Northern Ireland Court of Appeal in Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

The Claimant was employed as a Bursar from 1st August 1996 until 18th September 2008 when he was summarily dismissed from his employment having been found guilty of financial irregularity amounting to gross misconduct relating to an overpayment to him of pension supplements in the sum of £1,266.04. The disciplinary panel concluded that the appropriate sanction was dismissal as a result of irretrievable breakdown of trust and confidence in the claimant given the nature of his conduct and the critical sensitivity of his position as bursar at the school. The disciplinary panel considered the mitigating factors proffered by the claimant in relation to the effect of the state of his wife’s ill health upon him and his own state of health, together with the duration of employment of the claimant and absence of any disciplinary record to date. Notwithstanding these factors, the panel found that the claimant was guilty of gross misconduct and he was dismissed.

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

In applying the guidance given in the case of British Homes Stores -v- Burchell as set out in the Rogan decision, the Tribunal concluded as follows:

The Respondent did believe that the claimant had been guilty of the particular form of misconduct in this case which took the form of misappropriation of funds or procuring money to which he was not entitled. The school had just undergone an inspection and the board of governors had required a full internal audit. It was in this context that it was first decided to query the cheque request from the claimant. When the cheques were queried, within a very short time the claimant indicated that the cheque was no longer necessary. Added to the fact that the claimant was bursar of the school, a position of huge financial responsibility, it would be strange for the school not to have considered that something suspicious was going on. The school was entitled to have a suspicion that some form of misconduct was happening.

The Respondent did have reasonable grounds on which to sustain that belief. The claimant was the bursar and in a position in which he was the chief financial officer of the respondent. There was a relationship of trust with the Claimant. To be asked for a cheque and when it is queried, to be told it is not needed is suspicious.

Whilst the tribunal could have made criticisms of elements of the investigation as not being in accordance with the best industrial practice (e.g. failure to interview the Claimant as part of the preliminary investigation and failure to disclose an amended forensic accounting report to the Claimant at the disciplinary stage), the tribunal did not believe that these criticisms ultimately turned what was a reasonable investigation in that the school had carried out as much investigation into the matter as was reasonable in all the circumstances, into an unreasonable investigation.

The decision of the respondent did lie within a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another. The Tribunal did not consider that a decision that the claimant deliberately avoided maintaining the arrangement with the previous diligence he had shown when it was in his favour, because it meant he would no longer have had his entitlement to a monthly cheque and decided to dismiss him as a result, was outside the band of reasonable responses. This claimant had a position of great financial responsibility for which he was paid accordingly. The respondent school acted reasonably in treating his conduct as a sufficient reason to dismiss him.

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Michael Alexander Bradley v Hugh Doherty & Michael Loughran t/a Riverside Oils Case Ref 795/08

The Tribunal concluded that the respondent had reasonable grounds for believing that the claimant had committed a theft of oil by selling oil to a third party for his own gain.

As the tribunal found that summary dismissal was warranted, the modified statutory dismissal procedure applied, which requires that an employee be given a right of appeal. This did not happen and resulted in a breach of the statutory procedures and a finding of automatic unfair dismissal. The tribunal did not believe that any appeal, if exercised, would have changed the result.

The Tribunal found that the claimant contributed 100% to his dismissal and declined to make a minimum basic award of four weeks’ pay on the basis that it would result in injustice to the employer as the evidence pointed to the claimant having sold the respondent’s property for his own gain. The 100% reduction for contributory fault extinguished the basic and compensatory awards. The Claimant was awarded sums in respect of outstanding holiday pay and wages.

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William Murphy v Resource (NI) Limited Case Ref 6187/09

The Tribunal concluded that the respondent had reached a genuine and reasonable belief that the claimant had told a sectarian joke on 4 April 2009 and had uttered sectarian comments on 10 April 2009, both in the presence of work colleagues and in the course of his duties. As such the Respondent was entitled to regard this as gross misconduct and to summarily dismiss the claimant as it did on 24th April 2009.

The dismissal was automatically unfair as a result of the Respondent’s failure to complete the statutory dismissal procedure by not affording the Claimant an appeal of the decision to dismiss. The compensatory award was however reduced by 100% to reflect the tribunal’s conclusion that the claimant would still have been dismissed had the statutory procedure been properly completed.

The tribunal further concluded that it would, in all the circumstances of the case, result in injustice to the respondent to require it to make any payment by way of a minimum basic award and the basic award which would otherwise have been payable was reduced by 100% on the basis of the claimant’s contributory conduct. No compensation was therefore payable.