Devonport Management Ltd v Cusack [1993] UKEAT 445_93_2012

EAT
Devonport Management Ltd v Cusack
[1993] UKEAT 445_93_2012 · 1993-12-20
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Exeter on the 1st and 2nd April 1993. The unanimous decision of the Tribunal was that Mr M E Cusack had been unfairly dismissed by his employers, Devonport Management Limited, but that Mr Cusack had contributed to his own dismissal to the extent of one-third.The background facts to the dispute briefly appear from the document by which Mr Cusack complained to the Industrial Tribunal, on the 15th September 1992, that he had been unfairly dismissed from his position as a Project Manager with Devonport Management who carry on business of repairing and re-fitting ships. He had been employed by Devonport Management since the end of December 1957 and had reached a senior position in which he drew a basic salary of £30,700 a year. He complained that his dismissal was unfair because it was contrary to the Company's disciplinary procedure and that he had provided sufficient evidence to show that he was innocent of charges against him.In the Notice of Appearance Devonport Management stated their position as follows:
"From May 1990 to January 1992 the Applicant [Mr Cusack] was posted on secondment to Australia. The Applicant was given a secondment contract which specified the travel arrangements for the period.
The Applicant, during the period of his secondment, ignored the provisions of this contract and exceeded the limits on travel costs to the extent of approximately £11,000."He was summarily dismissed on the 2nd July after a disciplinary hearing which had been conducted by Dr Burns, the Nuclear Engineering Manager, on the 16th June and the 30th June 1992. The ground for dismissal was dishonesty, that is, gross misconduct through misuse of the Company's "American Express" card. An appeal was heard on the 24th July by Mr Slater, the Personnel Director and the decision to dismiss was upheld. It was argued that, on the basis of British Home Stores v. Burchell [1980] ICR 303 , the Company had a genuine belief on reasonable grounds and after reasonable and proper investigation that Mr Cusack was guilty of misconduct.The Industrial Tribunal considered the complaint. It first considered the disciplinary hearing before Dr Burns and the rival contentions on each side and held in paragraph 19:
"After weighing those two accounts together, Dr Burns came to the conclusion that [Mr Cusack] the applicant was guilty of gross misconduct which was categorised as fraud. Fraud, we understood, involved the dishonest misuse of the travel facilities afforded to him."
The Tribunal asked:

"Was that a reasonable conclusion for him to reach?"

The Tribunal decided that, on the evidence available to Dr Burns, as it stood at the date of the disciplinary hearing in June, it was open to Dr Burns as a reasonable employer to have reached the conclusion he did and that it was reasonable for him to have decided to dismiss for those reasons.In the next three paragraphs, however, the Tribunal considered the position as it stood on the appeal to Mr Slater on the 24th July. He had before him fresh evidence which had not been available to Dr Burns. The fresh evidence appeared in the statements and correspondence, in documents R17 to R22 of the bundle. We have been shown those documents.The Tribunal stated that it also emerged that Mr Cusack had put forward a specific claim to the Company for the cost of a ticket for his son to visit him in Australia and that request had been approved by a senior member of the Respondents' management. It was also apparent that members of the management knew of Mr Cusack's son's trip to Australia. The Tribunal said this at paragraph 23 and 24:
"23. We bore very much in mind that the applicant was not dismissed for negligence, or for incompetence. He was dismissed for fraud, which connotes dishonesty. It seemed to us that an employer should be slow to find dishonesty proved, particularly in the case of an employee of this service, status, and responsibility.
24. We unanimously concluded that if all the information which had been available to Mr Slater had been available to Dr Burns at the time of the disciplinary hearing, then Dr Burns would not have been reasonable in concluding, on the totality of the evidence, that the applicant was guilty of the gross misconduct for which he was dismissed, namely fraudulent conduct. It therefore follows that when Mr Slater elected to confirm the dismissal, on these grounds, despite all the fresh evidence, that was not a reasonable conclusion to reach. If one takes the totality of the evidence available to the respondent at the time that the decision to dismiss was finally confirmed - that is, at the date of the appeal hearing, we unanimously concluded that it was not reasonable for the respondent to have concluded that the applicant was guilty of fraud. We therefore unanimously found that this dismissal was unfair."Prima facie this is an appeal against a finding of fact, namely, that having regard to all the evidence available at the date of the final decision to dismiss, it was not reasonable on the part of the employer to conclude that Mr Cusack was guilty of fraud.In the Notice of Appeal, issued on the 4th June 1993, the Company seeks to take two points on the appeal. The question is: are those points of law? The first is that the requirement stated in paragraph 23:
"that an employer should be slow to find dishonesty proved, particularly in the case of an employee of this service, status, and responsibility."
is inconsistent with the test to be satisfied by the employer in Burchell's case. There is a short answer to this point. There is no inconsistency the guidelines laid down in Burchell as to genuine belief, reasonable grounds and reasonable and proper investigation. They are all aspects of reasonableness on the part of an employer. In our view, it is perfectly consistent with these guidelines and consistent with the general concept of reasonableness that, in dealing with suspected misconduct, the employer should have regard to the service, status and responsibility of the employee concerned, as well as to all other relevant circumstances relating to the suspected misconduct, including the seriousness of the misconduct in question. Suspicion of dishonesty is a very serious instance of suspected misconduct by a person occupying a responsible position in a company.There is no inconsistency and no question of error of law in the application of the Burchell guidelines.The second ground of appeal seeks to raise an issue of perversity on the findings of the Tribunal. The Notice of Appeal states that the Industrial Tribunal reasonably found at paragraph 21 that Dr Burns' conclusion at paragraph 19 was reasonable. When faced with the conflict of evidence recorded in paragraphs 17 and 18 it is then said that:
"the Industrial Tribunal found in paragraph 24 that Dr Burns would not similarly have reached a reasonable conclusion as to the Respondent's [Mr Cusack] gross misconduct if he had been in possession of additional information."
The fresh evidence is that referred to as the statement and correspondence in R17 to R22 of the bundle. What is said is that those documents do not relate to the conflict between paragraph 17 and 18 about the discussions that had taken place between Mr Cusack and Miss Wigram. It is submitted, that no reasonable tribunal, properly directing itself as to the law, could have reached the conclusion in paragraph 24.In our view, there is a fallacy in this submission, that is, in seeking to relate the views that the Tribunal formed about the fresh evidence available to Mr Slater back solely to the basis on which Dr Burns made his decision. It is true that the Tribunal said in the opening words of paragraph 24 that, if all the information had been available to Dr Burns at the time of the disciplinary hearing he would not have been reasonable in coming to the conclusion that Mr Cusack was guilty of gross misconduct. It does not however, follow, that the matter of the fresh evidence must be related back solely to the way in which the matter presented itself to Dr Burns. The Tribunal was entitled to take the view, as it did in paragraph 22, and 24 that the appeal to Mr Slater was in the nature of a re-hearing, not simply a review of the dismissal procedure, and that, on the re-hearing with the fresh evidence in the form of the statements and other documents, Mr Slater could not reasonably hold the view that there were grounds for suspecting dishonesty on the part of Mr Cusack.In those circumstances, the conclusion of the Tribunal was one of fact relating to the assessment of the situation by a reasonable employer, having the knowledge that Mr Slater had on the 24th July. Being a finding of fact it is not appealable to this Tribunal. There is, so far as we can detect, no error of law. This appeal will be dismissed.