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Disciplinary Panel Hearings

22 JAN 2010

Mr Michael Byng - 02 January & 20 January 2010

Case of
Mr Michael Byng [ 0063053 ], Coleshill, West Midlands

on
Wednesday 02 January 2010 (Charge 1 heard)

at
RICS, Surveyor Court, Westwood Way, Coventry, UK

and on
Wednesday 20 January 2010 (Charges 2 & 3 heard)

at
Arden House, Warwick University

The formal charges are

  1. That the Member did not conduct himself in a manner befitting membership of RICS in that in April and October 2008 the Member made claims to RICS for reimbursement of fees that had incurred as an RICS appointed delegate to the CEEC when you had never paid those delegate fees Contrary to Bye-Law 5.2.1 (formerly Bye-Law V2(1)) 
  2.  That the Member did not conduct himself in a manner befitting membership of RICS in that the Member has not at all times acted honourably and with integrity in his dealings with Mr John Collins as a former employee and as a fellow member of RICS Contrary to Bye-Law 5.2.1 (formerly Bye-Law V2 (1)) 
  3.  That the Member did not conduct himself in a manner befitting membership of RICS in that the Member has not at all times acted honourably and with integrity in his dealings with Mr Nick Best as a former employee and as a fellow member of RICS Contrary to Bye-Law 5.2.1 (formerly Bye-Law V2 (1)).

Determination

Findings with Reasons:

Determination on Charge 1

Mrs Buckley represented the Institution and Mr Byng appeared in person.  The charge is that Mr Byng did not conduct himself in a manner befitting membership of the Institution, in that in April and October 2008 he made claims to the Institution for reimbursement of fees he had incurred as the Institution appointed delegate to the CEEC, when he had never paid those delegate fees, contrary to Byelaw 5.2.1.

Mrs Buckley submitted that Mr Byng had been asked to represent the Institution at both the April and October meetings of the CEEC, in Prague and Munich respectively.  He had made two claims for reimbursement of the delegate fees in April and October 2008, which he was entitled to do.  Mr Byng made the claims by invoice from Michael Byng Project Control Limited on 9 April 2008 and from Michael Byng Limited on 12 September 2008.  The expense claims were approved and the two companies received the monies.  It was not until September 2009 that the Institution became aware that the fees had never been paid to CEEC.

Mr Byng submitted that had never made a claim as a member and that the claims were made by his companies.  He explained to the Panel in detail the steps he took in and around July and September 2009 to engage with senior members of the Institution to sort the matter out and he told the Panel - and this was accepted by Mrs Buckley - that he had paid the fees by a personal cheque in September of this year.  Mr Byng referred to exchanges of emails in the bundle he produced this morning.

The Panel established that Michael Byng Project Control Limited went into administration on 28 July 2008.  Mr Byng admitted that Michael Byng Limited was still trading and that it had not paid the bill in October 2008 for which it had claimed from the Institution and for which it had been reimbursed.  The Panel has had the benefit of a written submission from Mr Byng.

The Panel finds the following:

  1. The Institution sends individuals to represent its interests at meetings of the CEEC.
  2. Mr Byng attended conferences of CEEC in April and October 2008 personally as a delegate on behalf of the Institution.
  3. The CEEC invoiced Mr Byng personally on 29 March 2008 and 26 September 2008 for payment of delegate fees.
  4. Mr Byng claimed reimbursement of his expenses at the said conferences through companies of which he was the sole director.
  5.  The Institution paid the expenses to the companies for costs incurred whilst attending the CEEC conferences in Prague and Munich even though these were personal, not company expenses.  These amounts included the CEEC fees in each case.
  6.  Mr Byng failed to pay to the CEEC the fees outstanding in a timely manner.  As the sole director of both companies he was in a position to order payment on being reimbursed by the Institution which he failed to do, or to pay the fees personally and be reimbursed by his companies.
  7.  The first payment by the Institution on 16 May 2008 was made to Michael Byng Project Control Limited, a company that went into administration on 28 July 2008, which was over two months after the money had been reimbursed.  Mr Byng had plenty of time to make or order the appropriate payment to the CEEC.  The second payment by the Institution, on 31 October 2008, was made to Michael Byng Limited which is still trading and, therefore, there was no reason to withhold payment to the CEEC.

Mr Byng eventually made a personal payment to the CEEC in September 2009, after the matter had come to the attention of the officers of the Institution.

The Panel find that Mr Byng was in a position, at all relevant times, to make both payments but failed to do so.  Mr Byng was representing his professional association at their request and his failure to make the payments, leading to a complaint to the Institution's regulatory arm, adds to the seriousness of the matter.  The Panel finds that these matters constitute conduct unbefitting a member of the Institution.

The Panel reserve its decision on any action to be taken until after the evidence has been considered and the decisions have been made in respect of charges 2 and 3.

Mrs Buckley, we are going to hear those, as you know, on 18 December (the case was further adjourned due to adverse weather conditions).  It would greatly assist the Panel if we could have a written Statement of Case of the Institution's case in respect of charges 2 and 3.  We would ask that that Statement of Case is exchanged with Mr Byng on 11 December.

Mr Byng, you have made a Statement of Case, which we have before us today, of which we have a number of versions.  I would suggest that if there are any amendments you wish to make, that is also prepared and ready to be exchanged on 11 December 2009.

Determination on Charges 2 and 3

Mrs Buckley appeared on behalf of the Institution and Mr Byng appeared in person. 

Mr Byng appears before this Panel on two charges.  Charge 2 is that he did not conduct himself in a manner befitting membership of the Institution in that he did not at all times act honourably and with integrity in his dealings with Mr John Collins as a former employee and as a fellow member of the Institution.  Mr Byng denied this Charge.

Charge 3 is that he did not conduct himself in a manner befitting membership of the Institution in that he did not at all times act honourably and with integrity in his dealings with Mr Nick Best as a former employee and as a fellow member of the Institution.  Mr Byng denied this Charge.

The Panel was provided with three volumes of papers, one from the Institution and two bundles from Mr Byng.  In addition both the Institution and Mr Byng helpfully provided a Statement of Case.  The Panel read and took into account each of the bundles and Statements of Case.  The Panel heard submissions from the Institution and Mr Byng asked that his submission be treated as a witness statement on which he was cross examined.  Although the Panel heard a great deal of evidence it is not our intention to recite all of it in detail in this determination.

On the basis of what we have heard and read our findings are as follows:

Charge 2

  1. There was a breach of trust and confidence which Michael Byng owed to his employees, in relation to the terms of Mr Collins employment.  The Panel considers that the expectation of timely payments of salary is part of the duty of trust and confidence.  Throughout Mr Collins’ employment with Michael Byng Project Control Limited (MBPC) he was paid late.  Delays were substantial, frequent and spread over the entirety of the employment period.  The Panel does not believe that there is any justification to a failure of this nature or can be attributed to the fact that the company is, to use Mr Byng’s words ‘small’.  The Panel find a breach of trust and confidence.
  2. Mr Byng promised to pay monies to Mr Collins at a time before the company went into administration but did not do so.  Mr Byng made this promise in a letter dated 23 July 2008, which was 5 days before the company went into administration and well after Mr Byng knew that the company was likely to go into administration.  In his evidence today he told the Panel that proceedings were started in June 2008.  The Panel find that as a matter of fact that the failure preceded the company going into administration.
  3. That Mr Byng actively delayed the remedy stage of the proceedings at Employment Tribunal brought by Mr Collins without apparent justification.  The Panel note that the remedy hearing was postponed in January 2009 but there was no clear evidence as to why such a delay was agreed by the hearing judge.  The Panel do not accept that Mr Byng necessarily actively delayed the remedy stage.
  4. That Mr Byng failed to take any personal responsibility.  Mr Byng continued today to deny that he could or should have paid the outstanding salary to Mr Collins.  There has been an employment tribunal hearing and default judgment was given in favour of Mr Collins, the proceedings not having been contested by Mr Byng as a director of the company or the administrator.  Further the judgment remains unpaid.  The Panel find as a fact that Mr Byng failed to take any personal responsibility.
  5. Mr Byng used alleged competency issues to excuse non-payment of financial entitlements to Mr Collins.  Mr Byng continued with this in his evidence to the Panel suggesting that the whole demise of the company was entirely due to the actions of his operations manager, Mr Collins.  This non-payment took place during the course of an appraisal process and at no point was there a finding of incompetence.  Non-payment of wages can never be mitigated by alleged incompetence of an employee.  The Panel find as a fact that Mr Byng has used and continues to use alleged competency issues to excuse non-payment of financial entitlements to Mr Collins.

The Panel find the facts in 1, 2, 4 and 5 proved for all the above reasons.  The Panel is not satisfied that there is evidence that Mr Byng unjustifiably delayed the remedy stage of the Tribunal proceedings. 

In addition the Panel took note of the empty promises that have been made to Mr Collins.  Mr Byng continually referred to the letter he wrote on 23 July 2008 when he knew that the company was going into administration and when he knew that Mr Collins was unlikely to be paid.  Mr Byng alleges that this is an undertaking to Mr Collins and his solicitor, that will be fulfilled and that the only reason that it has not been acted upon is Mr Collins failure to engage in the process.  The Panel find that it is but one example of a promise being made but subsequently not kept.

The Panel have considered what the ordinary man in the street would understand by honour and integrity.  Honour would include a fine and scrupulous sense of what is right and due and respect.  Integrity would include uprightness, high standards of ethical behaviour and a proper appreciation of what is right and wrong.  Mr Byng has failed to uphold such standards in his dealings with an employee who is also a member of the Institution.  Such a failure is a breach of the rules of the Institution and renders Mr Byng liable to disciplinary action.

Charge 3

  1. Mr Best’s complaint to the Institution was that he was influenced in his dealings with Mr Byng by his, Mr Byng’s, high standing within the organisation.  Whilst the Panel heard no direct evidence today with regard to this, the Panel finds that Mr Byng holds himself out to be a prominent member of the Institution and  the Panel knows that he has represented the Institution nationally and internationally.  Such prominence adds to the responsibility which already rests on all the members of the Institution to act in ethical and proper manner.
  2. That Mr Byng breached the trust placed in him by Mr Best to honour express and implied terms of an agreement to undertake work for companies controlled by Mr Byng.  The Panel notes that it is admitted by Mr Byng that he asked Mr Best to undertake work and that he has not been paid for the work.  This is a breach of the trust and confidence that Mr Best was entitled to expect when agreeing to undertake the work.
  3. That Mr Byng has made repeated promises to pay Mr Best which he has not honoured and which he reiterated today.  There are numerous examples in the bundles and the Panel particularly noted the protracted exchange of correspondence that can be found between pages 179 to 317 in the Institution’s bundles. There are so many examples that it would be impractical to list each individual incident but the Panel find that Mr Byng has failed to honour any of the promises made to Mr Best.  The Panel also find that not only were they not honoured but there was no realistic expectation of some being honoured.
  4. That a cheque was written on the account of Michael Byng Limited, forwarded to Mr Best but was later countermanded by Mr Byng.  Mr Byng admitted that this happened although he has given a number of reasons for countermanding the cheque.  It is impossible for the Panel to accept that there was any valid reason for his actions.  The Panel find that such behaviour should not have occurred for any reason at all.  One of the reasons given was that the cheque was countermanded on the advice of Mr Byng’s solicitors.  Though Mr Best was promised an explanation from solicitors none was provided to him nor was there any evidence of that advice being provided to us amongst the multitude of documents in Mr Byng’s bundles.
  5. That Mr Byng has failed to accept any personal responsibility.  The Panel find that Mr Byng has failed to accept personal responsibility.  Mr Byng tried to assure the Panel today that he has every intention of paying Mr Best.  The first invoices were raised in May 2008, there has been ample opportunity to pay and the failure to pay is evidence of Mr Byng’s inability to accept any personal responsibility.  Mr Byng told us today that ‘Mr Best should never have been treated this way and promises were made and not kept’.  We agree entirely. There has been a trail over 18 months of sustained prevarication and inaction and a failure to take opportunities to remedy the situation.
  6. That Mr Byng has put his own interest above those of others.  The Panel find that Mr Byng has behaved in this manner.  He admitted he had a director’s loan with MBPC which he has been using funds to pay down.  The Panel also noted from Mr Byng’s bundle 2 pages 2 and 3 that Mr Byng has paid fees to other parties and advisors rather than paying his debt to Mr Best.

The Panel find all the facts proved.  Having regard to our definition of honour and integrity the Panel find that these facts display a gross failure to behave in a manner which the Institution regards as befitting its membership and renders Mr Byng liable to disciplinary action.

Findings on Penalty

The Panel now considers sanctions in relation to each of the charges having regard to the Sanctions Policy 2008.  The Panel has considered each of the options open to it starting with least severe.

The Panel also takes into account Mr Byng’s previous conduct record within the last six years which includes Professional Conduct Committee of 14 November 2005 where he was found in breach on three counts.  Mr Byng was fined a total of £2500, given three severe reprimands and ordered to pay the Institutions costs.  The matter was publicised.

Ms Buckley made representations on behalf of the Institution as to the gravity of the breaches and the need for a satisfactory regulatory outcome.  Mr Byng made a plea of mitigation asking the Panel to exercise compassion.  He asks the Panel to take into consideration the fact in respect of Charge 1 that he had paid the monies owed personally, although he admitted he should have paid them earlier.

In respect of Charge 2 Mr Byng accepted Mr Collins complaint but said in mitigation that he found Mr Collins was a difficult employee and suggested that Mr Collins was not well.  He also said that the litigation with Mr Collins was continuing.

In respect of Charge 3 Mr Byng again said that Mr Best should never have been in this position but that his, Mr Byng’s actions were hampered by the administration of MBPC.  He said that the recession had had an effect and that he personally, with the support of his wife had put much money into the process.  He apologised.  He asked that the panel take into account his age and personal circumstances.

Decision

Charge 1

The Panel has decided to expel Mr Byng from membership of the Institution.

Having regard to the facts found on 2 December 2008, the Panel consider that the failure to pay CEEC, an international organisation until the matter became the subject of regulatory attention was a failure of the utmost seriousness.   In particular it reflects upon the Institution internationally.  As the Panel have said Mr Byng was in a position, at all relevant times to make both payments.  He had through a company of which he was sole director been paid the money by the Institution. therefore there was no excuse for it not to be paid. He was representing his professional association at their request and his failure to make the payment leading to a complaint to the Institution Regulatory arm aggravated the matter.

Charge 2

The Panel has decided to expel Mr Byng from membership of the Institution.

Having regard to the facts found today the Panel considers that Mr Byng’s continual disregard of his responsibilities as an employer, his continual failure to accept that he has behaved inappropriately is a very serious breach that warrants expulsion.  The Panel considered Mr Byng’s offer of an undertaking but believes that it carries little credibility in the light of the facts found.

Charge 3

As with charges 1 and 2 the Panel expels Mr Byng from membership of the Institution.

Mr Byng’s behaviour towards another member of the Institution in the manner we have found is of the utmost gravity and strikes at the trust that one member of the profession is justified in reposing in another.  Members of any profession should at all times, act with honour and integrity, which Mr Byng has failed to achieve.  For reasons expressed above we also believe an undertaking would be inappropriate.

Determination on Publication and Costs

Publication
The Panel orders publication in accordance with the Sanctions Policy.  The Panel recommends that a copy of this determination is sent directly to the Honorary Secretary in order that he can take appropriate steps to ensure that all faculties in the Institution to which this is relevant are fully aware of the determination.

Costs
The award for costs of £9577.00 in favour of the Institution is made.

Mr Byng asked that if costs were to be awarded they could be suspended due to his financial circumstances.  This Panel has no power under the disciplinary rules to make such an order.

Appeal
Mr Byng has 28 days to lodge an appeal against these decisions.

Mr Byng made an appeal against the decision of the Disciplinary Panel.  The Appeal was part heard in April 2010 and will be resumed at a later date.