Case No. ED033/09

In a decision dated 7 January 2010, the Guernsey Employment & Discrimination Tribunal (“the Tribunal”) rejected a complaint of constructive unfair dismissal against a respondent employer based on a breach of the implied duties of trust and confidence and good faith. The employee had complained that the employer had breached those duties by reason of the manner in which he had been dealt following allegations of theft and dishonesty.

Facts

Mr Damien Ormrod (“O”) worked for the Channel Islands Cooperative Society Limited (“the Co-op”). At the time of his dismissal he was employed as a fishmonger at the Market Street store.

On 9 April 2009, O was recorded on CCTV weighing and pricing two fillets of fish as part of a sale to a Mr Topley (“T”), who also happened to be O’s supervisor at work. Later the same day, O and T left the store together and were stopped by the Store Manager and the Loss Prevention Officer. On returning to the store, T and O were questioned about the contents of the carrier bags in their possession. The fish was found to be marked significantly below the proper purchase price. The police were called and both T and O were arrested. O was immediately suspended on full pay and the police commenced a full investigation into the alleged theft/fraud. Seven weeks later, whilst still suspended, O was asked to attend work and was issued with a Notification of Disciplinary Interview. The Notification was issued on a Friday, with the hearing scheduled for the following Tuesday. O objected on the basis that he had insufficient time to prepare his case. At the same time, O requested a payment of £9,523.69 from the Coop. Otherwise he proposed to resign and claim constructive unfair dismissal. The Co-op rejected O’s proposal, refusing to make a payment, rejecting his allegations of constructive unfair dismissal, and confirming that it was prepared to reconvene the disciplinary hearing at a later date.

A week later, O resigned and claimed constructive unfair dismissal on the basis of breach of the implied duties of trust and confidence and good faith on various grounds including that:

  • he had not been given an opportunity to explain why he had discounted the price of the fish;
  • he objected to the manner in which he had been monitored by CCTV;
  • he had felt intimidated into doing what he did by T, who had already made his working life difficult.

Decision

The Tribunal held that: 1. In order for a constructive unfair dismissal complaint to succeed, it must be established that:

  • there was a fundamental breach of contract on the part of the employer;
  • the employer’s breach caused the employee to resign;
  • the employee did not delay too long before resigning, thereby affirming the contract and losing the right to claim unfair dismissal.

2. The evidence clearly established that O had been involved in an incident which led to his arrest.

3. The Co-op acted reasonably in following its standard procedures in relation to in-store monitoring, the initial apprehension of O and T, and suspending O on full pay pending the outcome of the investigation.

4. Whilst the Co-op might be criticised for its actions in certain respects (including not identifying the decisionmaker in the disciplinary process) none of these actions amounted to a fundamental breach of contract.

5. It was O’s choice to resign before the disciplinary hearing, rather than wait and put his explanation forward at the hearing.

6. In relation to his alleged concerns about T’s behaviour towards him, O had failed to raise a formal grievance or even to communicate his concerns informally to the Coop’s management, despite clear evidence that he had previously been willing to air employment-related concerns with a representative of management.

Comment

This decision is interesting in light of last year’s decision by the Guernsey Employment & Discrimination Tribunal in the case of Yoli v States of Guernsey Health and Social Services Department (Case No: ED0015 /09). Mrs Yoli had been arrested and was remanded in custody facing criminal charges of fraud involving possessing and using counterfeit money at the time of her dismissal. The Tribunal upheld a complaint of unfair dismissal brought by Mrs Yoli on the grounds that the Health and Social Services Department (“HSSD”) had failed to follow a fair procedure prior to her dismissal.

Whilst on the face of it, the two decisions appear inconsistent, the two Tribunals approached the complaints before them by applying similar principles to reach a reasonable decision in each case.

In Ormrod, the Tribunal noted that the Co-op suspended O on full pay, waited for the conclusion of the police investigation before implementing its disciplinary process, issued a notification of disciplinary hearing, and was prepared to adjourn the hearing to give O more time to prepare his case.

In contrast, the Tribunal in Yoli found that there had been an apparent “rush to judgment” that was not conducive to a fair and reasonable dismissal. Factors that contributed to the Tribunal’s finding of unfair dismissal were the total absence of contemporaneous file notes recording the considerations of senior management and the fact that no attempt was made to arrange a meeting with Mrs Yoli to give her the opportunity to set out her case with a representative present. According to the Tribunal, a reasonable employer “would have followed a more measured, considered and balanced approach to the issue of the Applicant’s dismissal”.

The Yoli case and its repercussions for employers will be considered in more detail by Stephen Ozanne in an article which will appear in the March edition of the Red Letter.