Rafferty vs ADN NI Ltd
| Jurisdiction | Northern Ireland |
| Judgment Date | 02 April 2015 |
| Docket Number | 02251/14IT |
| Court | Industrial Tribunal (NI) |
| Respondent | ADN NI Ltd |
THE INDUSTRIAL TRIBUNALS
CASE REF: 2251/14
CLAIMANT: James Rafferty
RESPONDENT: ADN NI Ltd
DECISION
The unanimous decision of the tribunal is that:-
(1) The claimant was unfairly dismissed and the tribunal makes an award of compensation to be paid by the tribunal to the claimant in the sum of £15,131.13.
Constitution of Tribunal:
Employment Judge: Employment Judge Drennan QC
Members: Mr B Collins
Mr I Foster
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr G Keenan, Accountant for the respondent company.
Reasons
1.1 The claimant presented a claim to the tribunal on 1 October 2014 for unfair dismissal and/or notice pay, following the termination of his employment by the respondent. The respondent presented a response to the tribunal on 17 October 2014, in which it denied liability for the claimant’s claims on the grounds that he had been dismissed for gross misconduct.
1.2 At the commencement of the hearing, the claimant confirmed, following discussion, if the tribunal found his dismissal was unfair, that he wished to obtain by way of remedy an award of compensation and, in particular, he did not seek an Order of Reinstatement and/or Re-engagement, pursuant to the provisions of Article 147 – 151 of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).
1.3 In accordance with the tribunal’s normal case-management procedure, the parties had been ordered at a Case Management Discussion on 21 November 2014, as set out in the Record of Proceedings, dated 25 November 2014, to prepare and exchange witness statements. The claimant did not comply with the said order. The respondent had prepared and exchanged witness statements; but the tribunal was concerned, having taken into account the terms of those witness statements, that the respondent’s witness statements, which were all in similar terms did not deal properly or at all with some of the issues the tribunal would have to determine in relation to the claimant’s claim and that there would inevitably require to be further oral evidence given by the respondent’s witnesses during the course of the hearing. In light of the terms of the overriding objective and having taken into account the respondent was not legally represented and, as a consequence, did not appear to fully understand what was required to be contained in the witness statements, and after submissions by both the claimant and the respondent’s representative, the tribunal decided that all witnesses would give their evidence orally and not by way of the witness statement procedure as previously ordered by the tribunal at the Case Management Discussion referred to above; but with the respondent’s witnesses to be at liberty to refer to any of their said witness statements during the course of the proceedings, insofar as it was considered necessary and appropriate in the circumstances. Before commencing the hearing, the tribunal ensured the claimant had read the respondent’s witness statements, together with all the documents contained in the trial bundle prepared by the respondent, which had been amended to include some pay-slips from the claimant’s new employer.
1.4 It was agreed, for the purposes of these proceedings, that the claimant, who was born on 6 August 1962, commenced his employment at the Glenpark Bar (‘Glenpark’) on or about 1 March 1991 and that he had continuity of employment from that date, as a consequence of the TUPE Regulations, following the relevant transfer of the business, which was carried out at Glenpark, to the respondent on or about 30 June 2011; and that, if the claimant was unfairly dismissed by the respondent, the respondent was liable for any such dismissal.
It was further agreed the claimant’s employment with the respondent at Glenpark was terminated by the respondent on or about 2 July 2014 and that, at that time, he was earning £347.76 gross per week and £290.74 net per week. It was further not disputed by the parties the claimant had obtained new permanent employment at McKenna’s Bar from on or about 27 November 2014, at an average wage of £260.00 gross and £247.00 net per week.
1.5 It was not disputed the respondent did not have a written disciplinary procedure; but it contended, in evidence to the tribunal, that at all times relevant to the dismissal of the claimant it had consulted/was in contact with the Labour Relations Agency, from whom it had sought assistance.
1.6 The tribunal heard oral evidence from Sean Rafferty, Dorothea Burns and Gerard Keenan on behalf of the respondent; and from the claimant.
2.1 In considering the evidence given to the tribunal by the parties, as set out above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, the relevant CCTV and audio-recording evidence shown and/or listened to at the hearing, together with the oral submissions made by the claimant and the respondent’s representative at the conclusion of the hearing, the tribunal made the following findings of fact, insofar as necessary and relevant for the determination of the claimant’s claim, as set out in the following sub-paragraphs.
2.2 Following the takeover by the respondent of the Glenpark on 30 June 2011, the respondent purchased all stock and commenced to run the Bar. An experienced stock taker was employed to do a stock take on the last Monday of every month.
An initial problem was detected, at the beginning of 2014, after a year end stocktaking exercise was completed, which suggested shortages within the stock. However, the respondent decided to take no further action at that time, because it was considered errors could have arisen as the stocktaking exercise took place in the busy Christmas/New Year period and this might have accounted for the discrepancies revealed in the exercise. Unfortunately, in the following months similar stock shortage results were obtained in relation to both bar and off sales. The stock taker was satisfied these were not isolated incidents and there was a problem which required to be investigated further.
In the stock results for January and February 2014, similar shortages were recorded. In February 2014, the shortage was over £2,000.00, which was having very serious financial consequences for the business. As a result, a meeting with all members of staff was held on 10 March 2014 and they were made aware of the stock problems and the staff were given a general verbal warning about loss of stock. On 12 May 2014, staff were told at a further meeting that new CCTV cameras had been installed in the premises to try and uncover the ongoing problems in relation to stock. The May 2014 stock results revealed a further shortage at the levels seen in previous months and the respondent decided to engage the services of an external auditor, Mr Sean Rafferty. Mr Rafferty is an experienced auditor, having worked for seven years as an auditor in a leading car suppliers in Northern Ireland.
2.3 Mr Rafferty began his investigation to see if he could establish the reason for the problem that had emerged in the preceding months, as set out above. The tribunal is satisfied he was not asked at that time to look, in particular, at the actions of any one employee of Glenpark. After an initial check of the delivery and accounting processes in place, he was satisfied that the problem was internal and not external and the problem did not arise from the actions of the delivery drivers or the stock taker. He also examined CCTV footage. Following a full stock count on 4 June 2014, covering a period of some nine days, a shortage in excess of £800.00 was identified by him.
2.4 As a result of his investigation and the viewing of CCTV evidence from the preceding period, it was decided to call a staff meeting, followed by a meeting with individual members of staff on 18 June 2014, including the claimant. No details of what was to be discussed at the individual meetings was given at the staff meeting. The tribunal was not presented with any evidence relating to the meetings with other members of staff or the results of same. Mr Sean Rafferty was present at the meeting with the claimant, together with Mrs Dorothea Burns, the Managing Director of the respondent and her husband, Michael Burns, the Manager of the respondent. The meeting with the claimant lasted some 15 – 20 minutes.
2.5 At the...
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