IN
THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN
THE MATTER
BETWEEN
|
|
MR GORDON MULLAN
AND
NEWTEL LIMITED
|
CLAIMANT
RESPONDENT
|
Reference: [2020]
TRE 136
Hearing
Date: Monday 2 August 2021
Before: Advocate
F B Robertson, Deputy Chairman
Appearance:
For
the Claimant: (In Person)
For
the Respondent: Advocate M. Preston
Mr G. Whipp
(CEO of the Respondent)
THE DECISION
For the reasons set out below the
Claimant’s claims for unfair dismissal, wrongful dismissal, breach of contract
for failing to follow company disciplinary procedure, unlawful deduction from
wages and accrued but unpaid holiday pay are rejected. The Claimant’s further claim for failure to
provide itemised pay statements was withdrawn.
REASONS
Introduction and Procedural Background
1.
By way of a Claim Form presented on 13 August 2020
the Claimant brought the following complaints:
(i)
unfair dismissal
(ii)
wrongful dismissal
(iii)
breach of contract for failure to follow company
disciplinary procedure
(iv)
unlawful deduction from wages
(v)
accrued but unpaid holiday pay
(vi)
failure to provide itemised pay statements
2.
In essence the grounds for the Claimant's
complaints in the Claim Form ("the Claims") were that he witnessed
the Respondent's company van being damaged in an accident in which he was not
the driver of the van. The van was
driven by another employee whom the Claimant did not give permission to drive. The Claimant informed the Respondent of the
accident and was instructed to put his name down as the driver of the van in
order that an insurance claim could be made. The Claimant refused to do so and it was
alleged he was then given an ultimatum of either resigning with a settlement
agreement or being subject to a disciplinary investigation. The Claimant was then summarily dismissed.
3.
The Respondent denies the claims. The Respondent's defence, as set out in its
Response Form dated 4 September 2020 in summary, is that as part of its investigation
into the incident with the van, it discovered that the Claimant had encouraged
and invited a junior member of staff to drive the van. At various meetings the
Claimant gave various inconsistent accounts of his conduct and, it is alleged,
lied to the Respondent during the investigation procedure. The Claimant also covertly recorded various
meetings with the Respondent and lied about his actions in this regard. As a result of these matters the Claimant was
summarily dismissed for gross misconduct.
4.
The Respondent also issued a Counterclaim in its
Response in relation to the cost of repairing the damage to the van sustained
in the accident, which Counterclaim was reduced by deductions made from the
Claimant's salary. The Claimant did not
defend the Counterclaim and Judgment was
given on the Counterclaim on 2 October 2020 pursuant to Article 12 of
the Employment and Discrimination Tribunal (Procedure) Order 2016.
5.
Prior to the Substantive Hearing of this matter the
Claimant withdrew his claim in relation to the alleged failure to provide
itemised pay statements.
6.
On 2 March 2021 these Proceedings were stayed until
28 June 2021 as a result of criminal charges against Mr Whipp and another,
arising from a complaint made by the Claimant (“the Criminal Proceedings”). The
charges were that the Defendants had conspired to defraud an insurance company
by dishonestly making a false representation in an insurance claim that the
Claimant had been driving the Respondent's company vehicle at the time of the
said accident on 7 July 2020. In the event the criminal charges were dropped
against the Defendants (with payment of their costs) prior to 28 June 2021.
The Hearing
7.
The Tribunal received witness statements and heard
oral evidence under oath from the Claimant, and on behalf of the Respondent, Mr
Whipp and a Mr Carl Robert Elton (an estimator at Martin Fernando Ltd, an
insurer approved vehicle accident repair centre).
8.
When making my Judgment I considered all of the
evidence, both oral and written, provided by the parties and made findings of
fact as set out below. This Judgment
summarises only the facts and evidence that are relevant to the Claims. Where I have had to resolve factual disputes,
I have done so on the balance of probabilities on the basis of my assessment of
the credibility of the witnesses, and the consistency of their accounts with
the rest of the evidence including the documentary evidence.
Material Facts and Evidence
9.
The Respondent provides general telecommunication
services to residential and corporate consumers in Jersey and elsewhere,
employing 14 staff.
10.
The Claimant commenced employment with the
Respondent as a Telecom Field Engineer on 24 June 2019. The role required him to be out of the office
for the purposes of installing or repairing telecommunications equipment for
customers at their premises. It was the
evidence of Mr Whipp that the Claimant worked closely with Mr Thomas Henebury. It was agreed that Mr Henebury had no driving
licence and that the Claimant did all of the driving. As such he was responsible for the
Respondent's vehicle pursuant to the terms contained in the Respondent's
Employee Handbook. It was further the
evidence of Mr Whipp that the Claimant was more senior to Mr Henebury and that
he was in effect his superior. This was
denied by the Claimant but, the Tribunal has no hesitation in concluding, on
the basis of the evidence, that Mr Henebury was junior to the Claimant and took
instruction from him.
11.
On 7 July 2020, there was an accident involving a
company vehicle; a grey Citroen Dispatch registration no: J146670. In summary, Mr Henebury (who was unlicensed
and uninsured) was driving the vehicle when he collided with pallet racking
whilst reversing the vehicle into the Respondent's yard/warehouse adjacent to
the Marks and Spencer store just off La Grande Route de St Peter, St Peters,
Jersey. The Claimant was not in the
vehicle but was present at the time and saw the accident occur. Damage of approximately £2,700 repair cost was
sustained to the vehicle.
12.
The Claimant reported the matter to his line
manager, Mr Sabri Mokrani
that day. Later that day the Claimant
took the vehicle to Martin Fernando Limited, an insurer approved vehicle
accident repair centre for the purposes of obtaining an estimate for the repair
work. Mr Elton (an estimator at Martin
Fernando Limited) gave oral evidence at the Hearing confirming the evidence he
gave in his Witness Statement in the Criminal Proceedings. In summary, Mr Elton’s evidence was that from
his exchanges with the Claimant he was in no doubt that the Claimant had been
the driver of the vehicle. Mr Elton’s
further evidence was that the Claimant had explained to him that he would be
making a claim through the Respondent’s insurance and provided Mr Elton with
details of the insurance policy.
13.
The Claimant’s evidence in relation to this event
was inconsistent and confusing. He
initially asserted that he had been instructed by Mr Mokrani
to get the vehicle assessed for the cost of repair. In cross-examination he was taken to his
Witness Statement filed in the Criminal Proceedings where he stated:
“Sabri told
Thomas that he should not have been driving as he was not insured as he does
not have a valid licence. I then said to
Sabri that I would take the van down to Martin Fernando’s to get a quote to
repair the damage for the insurance company.”
14.
It was put to
him in cross-examination that there was a discrepancy between his statement
which indicated that he had taken it upon himself to get an estimate to
progress an insurance claim, and his other evidence. The Claimant agreed and indicated that he
stood by the evidence in the Criminal Proceedings. Later in his evidence during
cross-examination the Claimant agreed that he had taken it upon himself to
conduct the claims process.
15.
The following day (8 July 2020) a meeting was held
between Mr Whipp, Mr Mokrani,
the Claimant and Mr Henebury. The evidence of Mr Whipp was that he
commenced the meeting by indicating he simply wished to "get to the
bottom" of what had happened. The
versions put forward by the Claimant and Mr Henebury however, in Mr Whipp's evidence, were confusing and did not make sense. Both the Claimant and Mr Henebury initially
claimed they had been driving then they claimed they had not been the driver. Mr Whipp considered that at least one of the
parties must be lying and requested the Claimant and Mr Henebury to leave the
meeting and prepare independently their written versions of events. Mr Whipp's further
evidence was that, from what he had heard at the meeting there appeared to be
three different scenarios;
(i)
Mr Henebury had been driving of his own
volition, and would be responsible for the damage to the vehicle;
(ii)
The Claimant had allowed Mr Henebury to
drive the vehicle, in which event they would both be responsible for the cost
of the vehicle;
(iii)
The Claimant was in fact driving, in
which case the Respondent would make an insurance claim.
16.
The evidence of the Claimant was that at the said
meeting Mr Whipp indicated that he considered that both the Claimant and Mr
Henebury were to blame for the accident and that there were three options;
(i)
Both the Claimant and Mr Henebury pay
for the necessary repairs to the vehicle; or
(ii)
Both would have their employment
terminated; or
(iii)
The Claimant accepted that he was
driving in order to enable the Respondent to make an insurance claim for the
damages.
17.
The Claimant’s further evidence was
that he was being ‘blackmailed’ by Mr Whipp and the Respondent into committing
fraud by falsifying insurance documents by claiming that it was he who had been
driving the vehicle rather than Mr Henebury.
The Claimant’s evidence in this regard was strongly denied by Mr Whipp.
18.
The following day (9 July 2020) the
Claimant had another meeting with Mr Mokrani. During that meeting the Claimant claimed he
was being forced or ‘blackmailed’ into stating that he had been driving the
vehicle which was categorically denied by Mr Mokrani
during the meeting. The meeting was covertly recorded by the Clamant on his
mobile telephone which the Claimant only revealed to Mr Mokrani
at the end of the meeting.
19.
There then followed another meeting
that day between the Claimant, Mr Whipp and a Ms Ann Thompson, an employee of
the Respondent, who took notes during the meeting.
20.
At
that meeting the Claimant indicated he wished to record the meeting on his
mobile telephone. Mr Whipp indicated
that in accordance with the Respondent’s Company policy no meetings could be
recorded. Mr Whipp indicated the meeting
could be postponed to another day and that the Claimant could bring a
representative to that meeting to take notes.
The Claimant was initially insistent that he wished to record the
meeting but subsequently agreed that it be postponed to a later date. The Claimant requested what the meeting was
to be about. Mr Whipp informed him that
it was to discuss the accident and to consider the written version of events
which the Claimant had agreed to provide.
The Claimant then produced at the meeting his written statement and gave
it to Mr Whipp. Mr Whipp indicated he
would adjourn the meeting to a later date once he had had the opportunity to
read the Claimant’s statement, and that of Mr Henebury. The Claimant agreed and indicated that he
would like to bring a witness/representative to the next meeting.
21.
The
written statement of the Claimant and Mr Henebury each indicated that the
vehicle was being driven by Mr Henebury at the time of the accident.
22.
A
meeting with the Claimant was arranged for 15 July 2020. Prior to that meeting Mr Whipp was provided
with a video of an incident involving the Claimant and Mr Henebury which had
taken place in January 2020. The video
showed the Claimant encouraging Mr Henebury to drive the vehicle in the
Respondent’s warehouse and Mr Henebury driving it. It was clear from the video that Mr Henebury
was not a competent driver as he kept stalling the vehicle. The Claimant could be heard laughing and
jeering in the background at Mr Henebury’s attempts
to drive. The video further showed the
Claimant instructing Mr Henebury to drive the vehicle out of the warehouse onto
the road outside the warehouse. The
Claimant could be heard shouting “take it out; go on take it out”, and Mr
Henebury then drove the vehicle out of the warehouse.
23.
(It
was Mr Whipp’s evidence that the public area outside
the warehouse was a car park at the rear of the Marks and Spencer store and was
an extremely busy thoroughfare. It was submitted by the Respondent that whilst
the road outside the warehouse was not a main road, it was a public road and a
road to which the public had access. It
was accepted by the Claimant that the road outside the warehouse was used by
members of the public.)
24.
The
meeting on 15 July 2020 was attended by Mr Whipp and Ms Ann Thompson of the
Respondent and the Claimant and his representative Ms Michelle Cooper. Notes of the meeting were prepared by Ann
Thompson and by Michelle Cooper.
25.
At
the meeting Mr Whipp asked the Claimant if he had continued to covertly record
the meeting with him on 9 July despite being asked not to. The Claimant confirmed that he had recorded
the whole meeting. Mr Whipp further
asked the Claimant if he had allowed Mr Henebury to drive the vehicle on 7 July
2020 to which the Claimant said no. The
Claimant, however, indicated that he had let Mr Henebury drive the vehicle and
indeed other vehicles of the Respondent in the past. It was further the evidence of Mr Whipp that
he then asked the Claimant if he had ever encouraged Mr Henebury to drive
anywhere where there were other people, on a highway or where people could be
hurt or injured, to which the Claimant responded that he had not and that he
had only allowed him to drive in the warehouse.
Mr Whipp asked the Claimant again if he was 100% sure and the Claimant
indicated that he was 100% sure he had not.
(It was noted that Mr Whipp’s evidence was
consistent with the notes of the meeting prepared by Ms Thompson. It was further noted that the notes of Ms
Cooper did not detail this exchange).
26.
Mr
Whipp then showed the Claimant the video of the incident in January 2020 where
the Claimant had directed and encouraged Mr Henebury to drive the van outside
the warehouse where other cars and pedestrians were. Mr Whipp then informed the Claimant that he
had lied and that he (Mr Whipp) could not tolerate lying and that the
Claimant’s conduct amounted to gross misconduct.
27.
The
evidence of the Claimant on this aspect was that he had only ever encouraged Mr
Henebury to drive onto a private road and not a public highway. Later in his evidence, under
cross-examination, the Claimant accepted that it was not correct to state he
had only allowed Mr Henebury to drive in the warehouse. He indicated that he had forgotten that he
had instructed Mr Henebury to drive outside the warehouse in January, and then
accepted that he had lied to Mr Whipp.
28.
At
the conclusion of the meeting Mr Whipp indicated that the conduct of the
Claimant including lying to Mr Whipp amounted to gross misconduct which would
justify instant dismissal. It was
accepted by Mr Whipp that the Claimant was offered the opportunity to terminate
his employment voluntarily with a settlement sum of 8 weeks’ pay or alternatively
that he would be suspended pending further investigation which could lead to a
disciplinary hearing.
29.
The
following day (16 July 2020) by way of an email timed at 10:05 the Claimant
rejected the settlement offer and indicated that he wished there to be an
investigation process.
30.
The
evidence of Mr Whipp was that having reflected on matters following the meeting
he decided that, given the Claimant’s conduct in (a) blatantly lying to him,
(b) having put members of the public at risk by encouraging and directing Mr
Henebury to drive on a public road, and (c) having covertly recorded meetings,
there would be no point in having a further investigation as it was clear that
the Claimant’s conduct amounted to gross misconduct in his view. Accordingly, Mr Whipp sent a letter to the
Claimant attached to an email timed at 18:16 on 16 July 2020. The first paragraph was in the following
terms;
“Termination of
Employment”
I am writing to
confirm that your employment with Newtel Limited (the “Company”) is terminated with effect from today, 16 July 2020 (the “Termination Date”) due to the fact that
the employment relationship has broken down irremediably. Your dishonesty, your encouraging actions
which endangered other employees and/or the public’s safety, along with
advising a junior employee (in your care) to break the law, and covertly
recording employees without their consent has brought about a loss of trust and
confidence in you as our employee.
The Law
31.
Article
61 of the Employment (Jersey) Law 2003 (“EJL”)
provides that an employee has the right not to be unfairly dismissed and
Article 64 governs the fairness of a dismissal.
Article 64(2) sets out four potentially fair reasons for dismissal, one
of which relates to the conduct of the employee.
32.
Article
64(4) EJL 2003 in essence provides that, when assessing the fairness of a
dismissal, the Tribunal must consider all the circumstances of the case
(including the size and administrative resources of the employer’s business) in
determining whether or not the employer acted reasonably in dismissing the
employee. The Tribunal in reaching its
view shall have regard to the substantial merits of the case.
33.
The
key principle is that it is not for the Tribunal to substitute its own opinion
for that of the employer. Rather, the
Tribunal’s role is to determine whether the employer has acted in a manner in
which a reasonable employer might have acted in the circumstances of the
case. A summary of the relevant
authorities is to be found in the decision of the Royal Court in Voisin v
Brown [2007] JLR 141, which was considered in JT (Jersey) Limited v Wood
[2016] JCA 183.
34.
As
stated in Voisin v Brown, it is important to note that it is not
the case that any failure to follow the procedural requirements will
necessarily result in a finding of unfair dismissal. As indicated in Polkey
v AE Dalton Services Limited [1988] AC. 344 in passages approved by Voisin
and referred to in JT (Jersey).
“If
an employer has failed to take the appropriate procedural steps in any
particular case, the one question the industrial tribunal is not
permitted to ask in applying the test of reasonableness posted by [Article
64(4)] is the hypothetical question whether it would have made any difference
to the outcome if the appropriate procedural steps had been taken. On the true construction of [Article 64(4)]
this question is simply irrelevant. It
is quite a different matter if the tribunal is able to conclude that the
employer himself, at the time of dismissal, acted reasonably in taking the view
that, in the exceptional circumstances of the particular case, the procedural
steps normally appropriate would have been futile, could not have altered the
decision to dismiss and therefore could be dispensed with. In such case the test of reasonableness under
[Article 64(4)] may be satisfied”.
Lord
Mackay….. was of a similar view..
If
the employer could reasonably have concluded in the light of the circumstances
known to him at the time of dismissal that consultation or warning would be
utterly useless he might well act reasonably even if he did not [carry out a
consultation]. Failure to observe the
requirement…relating to consultation or warning will not necessarily render a
dismissal unfair. Whether in any
particular case it did so is a matter for the industrial tribunal to consider
in the light of circumstances known to the employer at the time he dismissed
the employee.”
35.
The
Tribunal must therefore determine whether the process which was adopted was one
that a reasonable employer might have adopted in the circumstances of the case.
36.
In
this case the Claimant was dismissed because the Respondent believed his
actions amounted to gross misconduct.
37.
Gross misconduct is conduct so
serious that it justifies instant dismissal without notice. Exactly what amounts to gross misconduct will
depend on the facts of each case but it must constitute an act or a series of
acts, which fundamentally undermined the employment contract.
38.
Where misconduct is the reason
for dismissal whether or not it was gross misconduct it is helpful to take note
of the test established in British Home Stores Limited v Burchell [1980]
1 CR 303, notwithstanding that it is primarily a test to determine fairness in
unfair dismissal cases. The test
requires the employer to show that (i) he believed
the employee was guilty of misconduct; (ii) he had in his mind reasonable
grounds upon which to sustain that belief, and (iii) at the stage at which he
formed the belief on those grounds, he had carried out as much investigation
into the matter as was reasonable in the circumstances.
Conclusion
39.
Whilst some of the factual
background in relation to the matter was not in dispute, there were some areas
of significant dispute between the parties.
The Tribunal found the evidence of the Claimant to be inconsistent and
unreliable and where there was a conflict of evidence it preferred the evidence
of the Respondent and that of Mr Whipp in particular.
40.
In this case the Respondent did
initiate an investigation process, including the taking of statements from the
Claimant and Mr Henebury in relation to the accident. Further, the Claimant was invited to attend a
meeting on 15 July 2020 to consider matters and was allowed to bring a
representative to that meeting. Whilst
it may have been envisaged that there would be a further investigation, the
Tribunal finds in the circumstances of the case (including the evidence the
Respondent already had as to the Claimant’s misconduct and the relatively small
size and administrative resources of the Respondent), that any further
investigation process would have been futile and could be dispensed with.
41.
Further, the Respondent had a
genuine belief that the Claimant was guilty of gross misconduct and had
reasonable grounds for that belief from the investigation it had already
conducted and the evidence it had obtained from that investigation.
42.
Lying to one’s employer,
encouraging junior employees to break the law thus potentially endangering
members of the public, and covertly recording meetings (particularly in
circumstances where the employee was told it was not permitted and should not
do so) are acts clearly amounting to gross misconduct justifying summary
dismissal.
43.
The Claimant’s additional claim
for deduction from wages and accrued but unpaid holiday pay fell away upon
Judgment on the Counterclaim. There was
no breach of contract by the Respondent, in allegedly failing to follow the
Respondent’s disciplinary procedure.
There was no contractual obligation in this regard and in any event, as
indicated above, the Respondent was entitled to dispense with any further
investigation process and summarily dismiss the Claimant.
Advocate
F B Robertson, Deputy Chairman Date: 16 September