INDUSTRIAL TRIBUNALS

CASE REF: 2447/02

APPLICANT:	Carla Eleanor Mayne

RESPONDENT:	Devenish Nutrition

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed but that she had contributed to her dismissal which it measures at 60% and awards compensation of £1,553.28.

Appearances:

The applicant was represented by Mr J Kennedy Barrister-at-Law instructed by Edward Dougan & Co Solicitors.

The respondent was represented by Mr H Webb Barrister-at-Law instructed by Croner Consulting.

1.	These reasons are given in summary form.

2.	The applicant claimed unfair dismissal.  The respondent asserted the applicant was fairly dismissed for gross misconduct.

3.	The tribunal made the following findings:-

(a)	The respondent employed the applicant as a purchase ledger clerk from 18 May 2000 to 30 September 2002.  Her weekly wage was £275.00 gross, £220.00 net.  The applicant’s date of birth is 28 June 1977.

(b)	The respondent dismissed the applicant on 30 September 2002 for gross misconduct.  The gross misconduct was a breach of trust and confidence i.e. that she had used the respondent’s name and account to obtain home heating oil for personal domestic use without the respondent’s consent or permission.

(c)	The respondent accepted that the applicant had not stolen from the company nor had she attempted to defraud the company.

(d)	The respondent has a formal written disciplinary code with gross misconduct as the only misconduct offence.  Breach of trust and confidence is not one of the examples 

set out but in the circumstances the tribunal accepts that breach of trust and confidence is capable of amounting to gross misconduct.

(e)	Dismissal for misconduct is capable of rendering a dismissal fair.

(f)	For conduct to render a dismissal fair an employer must have a reasonable belief that the employee has committed an act of misconduct, having carried out a reasonable investigation and dismissal must be within the band of reasonable responses.

(g)	When Mrs Hamilton became aware on 12 September 2002 that the applicant had used the respondent’s name and account to obtain home heating oil for domestic consumption without permission she had a reasonable suspicion of misconduct.

(h)	The respondent carried out a reasonable investigation.

(i)	The respondent carried out a reasonable disciplinary hearing and dismissed the applicant.  Dismissal was within the band of reasonable responses.  The tribunal is not persuaded that the chairman of the disciplinary meeting, Rhonda Glenn, was biased against the applicant.

(j)	The appeal was defective.  The chairman of the appeal, following the representations made on behalf of the applicant at the appeal hearing on 10 October 2002, initiated a number of inquiries and obtained further information which he relied on in arriving at his decision.  The applicant was not told of this information nor given a chance to comment on it.

Further the chairman of the appeal thought he had to dismiss if gross misconduct is established which is contrary to the respondent’s disciplinary policy.

(k)	In all the circumstances the dismissal was unfair.

(l)	The applicant had contributed to her dismissal which the tribunal measures at 60%.

(m)	The applicant mitigated her loss.  She was employed from 25 November 2002 to 14 March 2003 at a lesser rate of pay.  From 24 March 2003 the applicant obtained other employment and thereafter suffered no loss of earnings.

Arising from her dismissal the applicant received incapacity benefit amounting to £630.00.  The tribunal deducts half the benefit £315.00 from the compensatory award following the approach in Rubenstein –v- McGloughlin [1997] ICR 318.

(n)	Accordingly the tribunal awards compensation as follows:-

Basic Award:

£250 X 2 = £500	- £300 (contributory fault)		=	£   200.00

Compensatory Award:

From 1 October – 24 November 2002

£220 x 7.57		=	£1,665.40
- incapacity benefit	=	£   315.00
				£1,350.40
- contributory fault	=	£   810.24			=	£   540.16

From 25 November 2002 –23 March 2003

220 x 16.86		=	£3,709.20
- earnings		=	£2,176.40
				£1,532.80
- contributory fault	=	£   919.68			=	£   613.12

Loss of statutory rights					=	£   200.00

Total								=	£1,553.28
									=======

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 	23 October, 27 and 28 November and 2 and 5 December 2003,
				Belfast.

Date decision recorded in register and issued to parties: