Kyberd v Frank Booth Group [1993] UKEAT 877_92_1905

EAT

Kyberd v Frank Booth Group

[1993] UKEAT 877_92_1905 · 1993-05-19

MR JUSTICE WOOD (PRESIDENT): By an Originating Application which was received on the 25th October 1991, Mrs Kyberd, the Applicant complained that she had been unfairly dismissed by her employers the Frank Booth Group.

Her case was heard by an Industrial Tribunal sitting at Bristol under the Chairmanship of Mr Toomer on the 26th June 1992. She was represented by Counsel. The employers were represented by a solicitor. Three issues arose for the Tribunal to decide.

The first was whether Mrs Kyberd had in fact been dismissed or whether she had resigned. They decided that in her favour.

Secondly, whether her dismissal was unfair. They found in her favour on a procedural ground.

Thirdly, the question of compensation, they awarded her no remedy at all. It is against that third issue, which was found against her, that Mrs Kyberd appeals to this Tribunal.

This is a preliminary hearing, we look to see whether we can discern any error of law in the decision of the Tribunal. Today, Mrs Kyberd is represented by her husband and she attends herself. They only attack the finding that she should not receive any compensation and they attack that on two bases.

Firstly, that the investigation into the matter was carried out by a Mr Vickery, the Area Manager, but that he was also a shareholder in the concern and therefore was not interested in a truthful and genuine investigation and is therefore liable to be biased and did not want any particular finding other than that there was some responsibility for what had occurred.

Secondly, that there had not been a sufficient appreciation of the dimensions of a safe and the bulk of the cash which was said to be in the safe.

That is the background. We only deal with the facts, which are clearly set out in the decision, so far as it is relevant for an understanding of the issue of compensation.

The group run a chain of amusement arcades. Mrs Kyberd was initially a Cashier and ultimately the Manageress of the arcade in Cheltenham. There is an obligation to total-up cash and to pay it into the Bank. Mrs Kyberd, in fact, arranged to do that and to utilise the services of her husband, a taxi driver, for that purpose.

During August 1991 Mr Booth was looking into the question of whether a certain amount of cash had been paid in. He had investigations made at his office, I imagine that is headquarters, and found that a very substantial amount of money, something like £40,000 had been taken in the arcade and not been banked. He immediately telephoned Mrs Kyberd and asked her about this. She agreed there was something over £26,000 in £1 coins and the balance in other coins and notes. He told her to bank the £25,000 at once. The Applicant, in fact, did not do so. There were various reasons, she could not get to the Bank on time. The incident with which the Tribunal was mainly concerned took place on the 21st August 1991.

A trainee Manageress, Mrs Slack, opened up the arcade that day. As she arrived the Applicant's husband, Mr Kyberd, was there and saw her in. Once she was inside he left, she switched off the alarm, and then subsequently, shortly afterwards, someone she describes as a "young man" robbed her. He frightened her into opening the safe, but as she told the Tribunal, she gave him a bag containing notes but no coins.

Thereafter, the Police investigated. Mrs Kyberd was initially arrested but was then released and never was charged. The matter was investigated by the employers and notably Mr Vickery.

Ultimately, the Tribunal decided that when Mrs Kyberd was dismissed, she was dismissed because, of course, the basis of trust and confidence had gone. The investigation, however, was procedurally flawed and inadequate investigation took place. Therefore the finding of unfair dismissal. But going on from there, the Tribunal then said, that they felt that they ought to look and see what would have come to light if the matter had been properly investigated. This was because they were looking thereafter at the merits of the case and whether it was just and equitable that any award should be made in the circumstances. The Tribunal deal with that, ultimately, in paragraph 21 they say this:

"It seemed to us, however, that if he [that is the investigator Mr Vickery or Mr Booth] he would have remained faced with the position which arose at the industrial tribunal hearing. That was, that despite his knowledge to the contrary, the applicant was saying that the £25,000.00 in coin was in the safe during the 20th and over the night of 20th/21st; that on the morning of the 21st it was not there; that it had not been taken by the robber; and that there was no explanation for where it had gone. It seemed to us, that, having reached that state of affairs, even a wholly reasonable employer would have been justified in concluding that a very substantial amount of money, for which the applicant was responsible, was missing; and that the applicant had put forward no satisfactory explanation as to what had happened to it. In those circumstances, it seemed to us that any reasonable employer would have been entitled to dismiss, and Mr Booth would have dismissed the applicant for it would be hard to see how any employer could retain any trust or confidence in an employee of the applicant's position who was unable to explain the absence of such a substantial amount of money, particularly when part of what she was saying the employer believed, from his own experience, to be untrue."

It is that paragraph that is attacked in this appeal and it is attacked on the basis that Mr Vickery was a shareholder and that fact was not brought out. It could have been brought out, the Applicant was represented by Counsel and there is no blame on the Tribunal for that. It should have been brought out if it was relevant, however, it was not.

The other matter, the dimensions of the safe and the amount of money which it could contain, is carefully examined by the Tribunal in the decision. They deal with it in paragraph 16 and it was clearly within their mind, they saw in fact a money bag filled appropriately, and they were able to have the dimension of the safe defined to them.

It follows really that the issue which is raised by Mr Kyberd, and raised by him succinctly, and we are grateful for that, are issues of fact. It was for the Tribunal to decide these matters on fact, we are powerless to deal with anything other than mistakes of law, and therefore we are powerless here to assist. This appeal must be dismissed.