EMPLOYMENT APPEALS TRIBUNAL DETERMIMES THAT EMPLOYEE SHOULD BE RE-ENGAGED DESPITE FINGING OF GROSS MISCONDUCT.
In the EAT case of Karen Egan – claimant UD1772/2010 against Ulster Bank Group (Ireland) – respondent under the Unfair Dismissals Acts 1977 to 2007 the claimant worked as a bank official in the respondent’s Castlebar branch, having been employed by the respondent since February 2000. The claimant employee was dismissed for removing a sum of money from the till (to pay for her car that was in a garage and her purse containing her cards was in another car) and had put a debit note in the till to this amount. She called the following day (as she was not due to work that day) and asked for the amount to be taken from her account (as it was too late to do it the evening before) to reverse the debit note.
The Company’s Staff Handbook labelled this behaviour as Gross Misconduct as they felt it was a failure to exercise adequate control over the cash. The Claimant accepted that it was against the respondent’s policies and procedures to process such an activity on her own account. The Claimant was dismissed but appealed the Dismissal Decision.
The Tribunal was cognizant that one of the persons (BB) who heard the Bank`s internal Appeal, who did not give evidence to the Tribunal, felt that the penalty of dismissal was extreme and had, initially, reached a different conclusion than the other person who jointly heard the Appeal. The evidence was that BB had changed his view of the Appeal after receiving advice from HR. In the event the claimant was informed of the failure of her Appeal. The claimant also later exercised her right of an external Appeal which was unsuccessful.
The Tribunal was satisfied that the claimant’s action in regard to the leaving of the debit note in the till was covered in the respondent’s code of conduct and met the definition of Gross Misconduct contained therein. The code of conduct provided that the sanction may include dismissal. This was the sanction invoked by the Disciplinary Hearing. What was relevant was that, despite the fact that the initial Appeal was heard on 14 May 2010, the notification to the claimant of the rejection of her Appeal was not communicated to her until 7 July 2010, over seven weeks after that hearing.
In the circumstances the Tribunal felt that BB was subjected to undue influence as a result of which he changed his view of the Appeal. The Tribunal was not satisfied that the conduct of the Appeal was fair in all the circumstances and, accordingly, the Tribunal found that the dismissal was unfair. In the circumstances the Claimant was ordered to be re-engaged with the period from the dismissal until the re-engagement to be considered a period of unpaid suspension, thereby preserving the claimant’s continuity of service.
There has been some surprise expressed in the legal community over this Decision. There has been concern that, despite the fact that the Tribunal accepted that the employee`s conduct came within the definition of Gross Misconduct the Tribunal proceeded to find that the Dismissal was unfair. Obviously the question now arises as to whether an employer will ever know when it is appropriate to know when to dismiss an employee.
It is submitted that the Decision of the Tribunal in this instance was totally reasonable. The employee`s conduct on this particular occasion may very well have come within the definition of the Gross Misconduct, however :
• The employer failed to take note of the fact that the employee up to that time had an unblemished record (this is not specifically stated in the Record of the Decision but it would certainly appear to be the case);
• There does not appear to have been any dishonesty on the part of the employee : she fully intended to reimburse her employer;
• There appears to have been under influence on the part of the HR Department on the initial Appeal Hearing;
• It is submitted that the imposition of a Warning to the employee in these circumstances would have been more appropriate.
The Tribunal, it is respectfully submitted by the writer, merely demonstrated commonsense in the re-engagement of the employee. It is a pity that the employer did not also demonstrate such commonsense in the first instance.