Background

1. Applicant: Mr Benedict Hampton / Respondent: STM Fiduciare Ltd

2. The Respondent is a trust company business regulated by the Jersey Financial Services Commission, having offices in Jersey as well as in Malta, Gibraltar, Spain and Cyprus.

3. The Applicant was employed by the Respondent (then known as Zenith Trust Company Limited) in Jersey on 18 September 2006 as a file reviewer on a 3-month contract before rising to occupy the position of a Manager in the client Services Department.

4. On 15 October 2012 a meeting was held by two Directors of the Respondent during the course of which the termination of a client’s trust structure was authorised.

1. The Applicant had responsibility for producing the documentation required for that process to be achieved in line with the Respondent’s procedures. Once authority had been given, the Applicant actioned the payment away of €3 million.

5. On 8 November 2012, the Respondent discovered that the required documentation had not been prepared prior to the structure being closed and that a Suspicious Activity Report (SAR) was in place.
   1. This meant that dire consequences could follow the payment of money away without notifying the States of Jersey Police. On inquiring of the Applicant what had taken place he admitted that he had cut corners and had not prepared the required documents even though he knew that a SAR was in place.

6. On 12 November 2012 the Applicant was suspended pending an investigation.

1. At the meeting at which he was suspended, the Applicant again admitted his fault. A fact-finding meeting was held on 16 November 2012 and a report was produced dated 19 November 2012.

7. A disciplinary meeting was held on 28 November 2012 and on 30 November 2012, the Applicant was dismissed for gross misconduct.

1. The Applicant appealed the decision to dismiss him and an appeal meeting took place on 10 December 2012.
2. The decision was confirmed by letter dated 13 December 2012.
3. The Applicant then appealed to the CEO of the Respondent. By email dated 21 December 2012, that further appeal was rejected.

8. The present proceedings were commenced by way of a JET1 form dated 14 January 2013. The Respondent defended the claim by filing a JET2 form on 14 February 2013.

9. Various interlocutory hearings took place in 2013 and then on 9 January 2014 these proceedings were adjourned without a fixed date pending a criminal investigation and proceedings concerning the then Money Laundering Reporting Officer (“MLRO”) of the Respondent. The MLRO had been arrested in March 2012 and was subsequently charged with money laundering offences.

10. A trial took place before the Royal Court and the MLRO was acquitted in June 2015.

11. The Tribunal was convened to hear the Applicant’s complaints and sat over 4 days to hear evidence and submissions from the parties’ Advocates.

12. A Judgment dismissing all of the Applicant’s claims was delivered on 23 June 2016.

13. There now follow the Tribunal’s reasons for having reached that decision.

The Applicant’s Case

1. The Applicant claimed that he had been unfairly dismissed and as such he should receive 26 weeks’ pay by way of compensation in the sum of £39,000.00 and 6 months’ notice pay in the same amount.

2. It was the Applicant’s case that he had been summarily dismissed for reasons which were not properly explored and “without due consideration” in circumstances where his actions could not be said to have been sufficient to constitute gross misconduct.

3. The investigation of his conduct had been flawed and the disciplinary process which followed failed to properly address those flaws.

4. In essence, although the Applicant had admitted from the outset that he had not done what he should have done with regard to the closing of a trust structure he maintained that what he had done was sufficient in all the circumstances and the Respondent should have investigated the matter differently. The Applicant was particularly concerned that no consideration was given as to whether he was being used as a “scapegoat” for the failings of others.

5. In addition, the appeal was not conducted fairly and consideration was not given to all of the available and relevant information. The Applicant also criticised the CEO’s review of the appeal decision.

6. It was notable that in the Applicant’s Skeleton Argument and in his own witness statement criticisms were made of other employees and Directors.

7. However, during the course of the hearing Advocate Heath made it clear that this was not part of the Applicant’s case.

The Respondent’s Case

1. The Respondent resisted the claims of unfair and of wrongful dismissal on the basis that the investigation, disciplinary process and appeal were conducted properly and that the Respondent genuinely believed and had reasonable grounds to believe that what the Applicant was found to have done was plainly an act of gross misconduct entitling the Respondent to reasonably conclude that he should be summarily dismissed.
2. The Applicant was considered to be an experienced and senior member of staff upon whom the Directors placed significant reliance.
3. The Applicant was found to have prepared and submitted documents to the Directors for their authorisation, whilst being fully aware that he had not complied with the Respondent’s internal procedures. The documentation did not alert the Directors to any potential problems.
4. Further, the Applicant misled one of the Directors by telling her that all was in order with the result that authorisation was given and significant funds were paid away in closing a trust structure without ensuring that procedures were followed.
5. This could have a catastrophic impact upon the Respondent and all of its staff.

Decision

1. The Tribunal was unanimous in deciding that the Applicant’s claims should be dismissed. It will be apparent from the summary of the evidence above that having seen the witnesses give their evidence the Tribunal was very unimpressed by the Applicant.
2. The Tribunal was left with the distinct impression that he was either not telling the truth or was hiding some of the true picture when he gave his evidence.
3. In addition, the Tribunal found that the Applicant lied to HM when they spoke before the meeting that took place on 15 October 2012 when he was asked if everything had been “squared away”.
4. When he said yes to that question the Applicant knew that there was a SAR.
5. By contrast, the witnesses who appeared for the Respondent came across as careful and credible. The two witnesses called by the Applicant were, with respect to them, of relatively little assistance to his case.
6. The Respondent formed a reasonable belief that the Applicant was guilty of conduct which justified summary dismissal. It did so after an investigation that was as careful as it needed to be in all the circumstances.
7. When an employee admits his wrongdoing it is not for the employer to ignore that fact and to go off on an investigation designed to disprove what the employee has said.
8. Here the Respondent was placed in a very precarious position by the Applicant’s actions. It took swift and fair steps to suspend him and then to investigate what had happened.
9. It might have chosen to not summarily dismiss him perhaps in recognition of his service but its decision to take that option was certainly within the band of reasonable responses in all the circumstances.
10. The criticisms of the investigation were the crux or nub of the case according to the Applicant’s Advocate and the Tribunal finds that it was not flawed or, at least, not so flawed as to infect the subsequent disciplinary process.
11. That process was in itself fair in all the circumstances. Likewise, the appeal process was also fair in all the circumstances.

Read the whole judgement – http://bit.ly/2gdQlC2