Lewsley vs Holy Trinity Community Centre
| Jurisdiction | Northern Ireland |
| Judgment Date | 21 August 2015 |
| Docket Number | 02369/14IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Holy Trinity Community Centre |
THE INDUSTRIAL TRIBUNALS
CASE REF: 2369/14
CLAIMANT: Nicola Lewsley
RESPONDENT: Holy Trinity Community Centre
DECISION
The unanimous decisions of the tribunal are as follows:
(A) The claimant’s unfair dismissal claim is well-founded. It is ordered that the respondent shall pay the sum of £448 to the claimant as compensation in respect of that unfair dismissal.
(B) We granted the claimant leave to pursue a claim under Article 13 of the Employment Relations Order 1999 in these proceedings. That claim is not well-founded. Accordingly, that claim is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Buggy
Members: Ms L Torrans
Mr D Walls
Appearances:
The claimant was represented by Mr Patrick Moore of PM Associates.
The respondent was represented by Mr N Phillips, Barrister-at-Law instructed by Jones Cassidy Brett Solicitors.
REASONS
1. Holy Trinity Community Centre (“the Centre”) is a registered charity, which is located at Norglen Gardens, Andersonstown, Belfast. The claimant was employed by the Centre for several years until 29 September 2014, as a care assistant. With effect from the latter date, she was dismissed.
The claims
2. In these proceedings, the claimant makes two claims. (1) She complains of unfair dismissal. (2) She complains of a breach of Article 12 of the Employment Relations (Northern Ireland) Order 1999. (Article 12 is entitled “Right to be accompanied”).
The facts
3. In the following sub-paragraphs, we set out findings of fact which are relevant to the issues which we have determined. (In order to minimise avoidable duplication, and in the interests of readability, some additional findings of fact are set out elsewhere in this Decision):
(1) The Centre provides childcare facilities for children up to the age of four years. It also provides a Counselling service and it has a service for “Elderly People Activities”.
(2) The claimant was employed in the Centre as a Day Care Assistant from June 2010 onwards. She worked 16 hours per week. The childcare facility operates from Monday-Friday and is open from 8.00 am to 5.30 pm. The Centre can take up to 30 children.
(3) At the time of the claimant’s dismissal, the Centre employed the following staff: a Childcare Manager, a Childcare Supervisor, a Cook and 8 Childcare Assistants (of which the claimant was one). The Counselling service has a team of 6 staff members and the service for Elderly People Activities has just one staff member.
(4) In September 2014, the Centre had a practice of allowing or requiring its staff members to take the cash home if Centre fees were paid in cash by parents close to the end of the day.
(5) On 12 September 2014 (which was a Friday), during the late afternoon, a particular parent (who is described in this Decision as “X”) handed over £500 to the claimant in cash, for childcare fees which were due to the Centre.
(6) In these proceedings, there has been a dispute between the parties as to whether or not, on that occasion, the claimant complied with the Centre’s practices regarding the provision of receipts. For the purpose of resolving the issues in these proceedings, we do not need to arrive at conclusions in relation to the subject-matter of that dispute.
(7) The claimant never handed over the cash to the Centre.
(8) She lost the money that had been entrusted to her on 12 September 2014.
(9) She did not realise that she had lost the money, and she forgot that she had received the money, until Management raised queries about the issues several days after 12 September.
(10) This may be an appropriate place for us to record our disapproval of the laxity of the Centre’s procedures at the relevant time. In our view, it is entirely inappropriate for an employer to have a system whereby large sums of money, belonging to the employer, are taken home, over a weekend, to an employee’s place of residence.
(11) Soon after the matter was first raised with her by the employer, the claimant admitted that she had received the money, and that she had lost the money.
(12) In a text which she sent on 24 September 2014, the claimant asserted that her “nerves r wrecked” over the matter. However, in her conversations with Management within the Centre soon afterwards, she gave the impression that she was not much concerned about the issue.
(13) On 29 September 2014, the claimant was given a letter requiring her to attend a disciplinary hearing on 30 September. The letter was in the following terms:
“I am writing to inform you that you are required to attend a disciplinary interview at 2.00 pm on 30 September 2014 at Centre Manager’s Office.
The reason for the disciplinary interview relates to a day care payment you received from [X]. Details of issues to be discussed.
- No evidence of a receipt.
- Not informing Daycare Manager of payment received from the parent (£500.00).
- No recollection of where the money is.
- Failure to recognise Holy [Trinity’s] financial procedures
Under the terms of the company’s disciplinary procedure, you are entitled to be accompanied at the investigation interview by a fellow employee or a union representative”.
(14) The relevant “interview” was, in reality a disciplinary hearing. The disciplinary hearing was carried out by Ms Bernie Toner, the Centre’s Director. (She had only came into that post earlier during the month of September 2014).
(15) The claimant was accompanied at the hearing by Ms Siobhan Connolly, the Daycare Manager. She was so accompanied because Management gave her to understand that accompaniment was mandatory (whereas, of course, it was entirely a matter for the claimant whether she wished to be accompanied at the hearing), and because Ms Connolly, in effect, nominated herself for that task.
(16) The disciplinary hearing was brought forward, at the claimant’s request, from 30 September to 29 September (the day on which she received the “invitation” letter), because she wanted to get it over with.
(17) In the course of the disciplinary hearing, the claimant did not show any signs of genuine remorse for the loss of the money, or for the failure to realise, in a timely manner, that the money had got lost.
(18) Ms Toner decided to dismiss the claimant. That dismissal was confirmed in a letter dated 29 September 2014, which was handed to the claimant on that day. That letter was in the following terms:
“I am writing to confirm the details of the investigation interview held on 29/9/14. It was noted that you were offered the right to representation at this interview and that you exercised this right. Siobhan Connolly attended the meeting. It was also noted you had been advised Bernie Toner would be taking minutes.
The investigation interview was held and following detailed investigations you have been dismissed for Gross Misconduct with effect from 29/9/14. The reasons for your dismissal are:
- No evidence of a receipt.
- Not informing Daycare Manager of payment received from the parent (£500.00).
- No recollection of where the money is.
- Failure to recognise Holy [Trinity’s] financial procedures.
- Financial negligence.
This letter is written confirmation of your dismissal.
... ”
In passing, we note that the “financial procedures” of the Centre, in September 2014, left a lot to be desired, in view, in particular, of the then prevailing practice of expecting staff to take large sums of money to their respective homes, on a regular basis, in situations in which money due to the Centre was received from parents late during the day.
(19) Throughout the lengthy period between the date of her dismissal and the day of this unfair dismissal hearing, the claimant never made any...
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