IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

Gary Singh

CLAIMANT

 

AND

 

 

Colin Fraser

t/a ColinFraserCleaningServices

RESPONDENT

 


 

TRIBUNAL JUDGMENT


 

 

Reference:                    [2017]TRE093

 

Date of Final Hearing:    14th December 2017

 

Before:                                     Advocate Ian C Jones, Deputy Chairman  

                                    Mr Clive Holloway and Ms Marilyn Wetherall, Panel Members                                        

Appearance:

For the Claimant:           In person

For the Respondent:     In person

 

 

RESERVED DECISION:

 

It is the unanimous decision of the Tribunal that:

 

(i)      Mr Singh's claim for Unfair Dismissal succeeds. The Tribunal exercises its discretion pursuant to Article 77F (5) and (10) of the Employment Jersey Law 2003 to reduce Mr Singh's statutory award for Unfair Dismissal to £600; and

 

(ii)     Mr Singh's claim for wrongful dismissal succeeds in the sum of £1,800.

 

Mr Fraser is hereby ordered to pay Mr Singh the sum of £2,400.

 

 

REASONS:

 

INTRODUCTION

 

1.          Mr Gary Singh (the "Claimant") was employed by Mr Colin Fraser t/a Colin Fraser Cleaning Services (the "Respondent") as a window cleaner from 28th April 2014 until 8th May 2017. It was not in dispute that the Claimant was continuously employed during this period. Similarly it was not in dispute that the Claimant's gross weekly wage throughout his employment was £600 / week.

 

2.         There were essentially three issues for the Tribunal to determine at the final hearing:

 

(i)                   whether the Claimant was unfairly dismissed by the Respondent;

if he was unfairly dismissed as claimed

(ii)                 whether the Respondent could rely on the provisions of Article 77F of the Employment (Jersey) Law 2003 (the "Law"); and

(iii)                whether the Claimant was entitled to receive any payment in respect of any notice period he was entitled to work pursuant to the terms of his employment. (together the "Claims")

 

3.          As will become apparent, and although not expressly invited to do so by either of the parties, the Tribunal also considered whether or not the Claimant's dismissal was inevitable, notwithstanding any failure on the part of the Respondent to engage and / or follow its mandated disciplinary processes.

 

Preliminary / Procedural Issue

 

4.          At the start of the final hearing the Tribunal enquired of the Respondent whether or not he was going to be calling either Paul Singh (the Claimant's brother and an employee of the Respondent) or Andrew De La Haye (another employee of the Respondent) (the "Witnesses"). The Respondent had indicated at the Case Management Meeting that he wanted to rely on the Witnesses and indeed had been given leave to call the Witnesses.

 

5.          The tribunal noted that no witness statements had been filed in respect of either of the Witnesses and the Respondent duly confirmed that he would not be seeking to call the Witnesses. The Claimant immediately objected to this on the basis that he did not know that the Respondent was not ultimately going to call the Witnesses and had therefore been materially disadvantaged.

 

6.          The Claimant was given the opportunity to develop his objection but was unable to explain why he hadn't raised the absence of any witness statements, on Friday 22nd September (the original date for the exchange of witness statements) and in any event before the final hearing. The Claimant accepted that he was on notice it was likely the Respondent was not going to call the Witnesses at the point he only received a witness statement from the Respondent, and not either of the Witnesses.

 

7.          The Claimant explained to the Tribunal that he did not know what would happen in the event that the witness statements were not filed but was not able to explain why he did not raise this with the Tribunal's Secretary. Paragraph 19 of the Case Management Orders was drawn to his attention which made it clear that either party should contact the Tribunal's Secretary if there was anything they did not understand or were unsure about. The Claimant confirmed that he both knew this and that he had in fact been in contact with the Tribunal's Secretary about other issues in the preparation of the case.

 

8.          Notwithstanding the above the Tribunal also gave the Claimant the opportunity to explain how he had been materially disadvantaged by the Respondent's decision not to call the Witnesses. The Claimant was unable to explain or develop his position at all. In respect of Mr De La Haye, Mr Singh had confirmed at the Case Management Meeting (and then re-confirmed to the Tribunal at the final hearing) that he did not anticipate he would have any questions for Mr De La Haye. The Tribunal accepts that it was perhaps difficult for the Claimant to adopt a final position on this issue in the absence of understanding what Mr De La Haye's evidence would have been. However, the Claimant confirmed that Mr De La Haye's appearance was not necessary for the presentation of his own case and as he would not be giving evidence for the Respondent the Tribunal was unable to see how Mr De La Haye's absence could be at all disadvantageous to the Claimant; the only possible disadvantage that could be identified accrued to the Respondent which disadvantage the Respondent both acknowledged and readily accepted.

 

9.          Similarly the Claimant was unable to explain why the fact that his brother was not going to give evidence for the Respondent, was in any way disadvantageous to his claim. The Claimant seemed to suggest that he would have called his brother as a witness if he had known that the Respondent was not going to call him. However, when this suggestion was tested the Claimant was not able to assist the Tribunal as to what evidence his brother would have given in support of the Claims. It also transpired from further exchanges that the Claimant and his brother were 'not on speaking terms'.

 

10.            In light of the above the Tribunal had little sympathy with the Claimant's position as the issue could, and in the Tribunal's firm view should have been dealt with in advance of the final hearing. The time to apply for an adjournment in respect of this issue was not the morning of the final hearing. Indeed the Tribunal's view was that no adjournment should ever have been necessary in respect of this issue. Notwithstanding, the Tribunal could also find no reason to suppose that the Claimant could be said to disadvantaged by the absence of the Witnesses. The Tribunal was not in receipt of any witness statements and the Respondent confirmed that he would not be seeking to adduce any evidence from either of the Witnesses. Moreover, despite being given ample opportunity the Claimant was not able to explain how the appearance of either witness was material to his case. Had the Claimant been expecting to rely on his brother's evidence in any way, then the Tribunal would have expected the Claimant to be able explain, at least in general or even vague terms, what that evidence might be. The Claimant was not able.

 

11.          Given that the Claimant was perhaps the architect of his own misfortune in this regard, even had the Claimant been able to identify any material disadvantage to his case, the Tribunal would have given serious consideration to refusing his request for an adjournment, made as it was at a very late stage and without any or any good reason. In the event, the Claimant was not able to identify any, even slight disadvantage to his case flowing from the absence of the two witnesses and accordingly the Tribunal refused his application for an adjournment and then proceeded to hear the substantive claim.

 

RELEVANT FACTUAL BACKGROUND AND FINDINGS

 

12.      The Tribunal heard evidence at some length from both the Claimant and Respondent. During this process the Tribunal heard significant amounts of evidence that was ultimately of no relevance to the Claims. The Tribunal wishes to be clear that it does not seek to criticise either party in relation to the extraneous evidence heard but trusts that the parties will not be surprised or disappointed to learn that the Tribunal makes no finding in relation to any of the material or evidence presented which it  ultimately considered to be irrelevant.

 

Terms of Employment

 

13.       The Claimant appended to his JET1 what he described as his contract of employment with the Respondent (the "Contract"). The Contract is entitled 'Zero Hours Written Terms' and is, as was accepted by the parties, a pro-forma document supplied by the Jersey Advisory and Conciliation Service ("JACS"). The Contract has some detail missing and was presented to the Tribunal in largely unmodified form. However, both parties agreed that it was a full representation of the terms pursuant to which the Claimant was employed by the Respondent.

 

14.       The Claimant gave evidence to the effect that he had been 'forced' to sign the Contract and in effect had only entered into it under duress. The Respondent did not deny that he had in fact given the Claimant an ultimatum to the effect that if he didn't agree to the Contract then he would lose his job. However, the Claimant readily accepted that the Contract accurately represented the terms of his employment and indeed accepted that he would have entered into the Contract irrespective of whether or not any question of duress arose. The Claimant also confirmed and clarified that he was entering the Contract into evidence for the purpose of establishing the terms of his employment. Again, the Respondent agreed that there was no dispute that the Contract represented the agreement between the parties. Accordingly the Tribunal found and proceeded on the basis that the Contract represented the terms of Employment between the parties.

 

15.       Importantly the Contract was not specific about the Respondent's disciplinary procedure, nor did it provide any detail as to any notice period that was applicable to either the Respondent or the Claimant. The Tribunal heard evidence from the Claimant that his agreed notice period was three weeks which was not disputed by the Respondent. The Tribunal therefore found that the applicable notice period on either side was 3 weeks. The Tribunal notes that in the absence of hearing any evidence on the point the Tribunal would have applied the required notice period as provided for by Article 56 of the Law which on these facts would have been 3 weeks.

 

16.       The Tribunal heard evidence from the Respondent that its disciplinary procedure required him to provide two verbal warnings to the Claimant followed by a written warning, before he could dismiss him. There was no documentary evidence to support this assertion and the Tribunal found the Respondent to be both evasive and vague when being questioned about the disciplinary procedure. The Tribunal doubted very much whether or not the Respondent in fact had or in fact has any specific disciplinary procedure or policy at all and strongly suspected that the Respondent simply created this process 'sur la champ' when asked about the details.

 

17.       However, and to the Tribunal's surprise, the Claimant readily accepted that he was entirely familiar with the details of the Respondent's disciplinary process and confirmed what was said by the Respondent. Accordingly, the Tribunal treated this as an agreed fact and found that the Respondent's disciplinary process required him to give two verbal warnings and then a written warning prior to dismissing the Claimant. The Respondent gave evidence that he had given the Claimant innumerable verbal warnings. He could not be exact about how many times but estimated that it easily 'ran into double figures'.

 

18.       The Claimant disputed that he had been given as many verbal warnings as the Respondent alleged but under questioning from the Tribunal conceded that he had received 'at least two' verbal warnings and 'possibly more'. The Respondent confirmed that he had never given the Claimant a written warning. The Claimant unsurprisingly did not dispute that he had never received a written warning. The Respondent quite rightly conceded that he had failed to follow his own disciplinary procedure in relation to the Claimant but then sought to give evidence and argue that he was nevertheless entitled to dismiss the Claimant summarily, without notice and without reference to the mandated and agreed disciplinary procedure as this was a dismissal for gross misconduct. The Respondent's evidence and stated view as an employer was that once he had determined an employee was found to have crossed the threshold of gross-misconduct then an employer was always entitled to dismiss, instantly and without notice, the employee guilty of the gross misconduct.

 

19.       The Claimant's position was that the Respondent was obliged to follow his stated disciplinary procedure and if he had failed to then it followed that the dismissal must be unfair. The Claimant also sought to argue that even if he was guilty of gross misconduct (as alleged or at all) then the Respondent's specific disciplinary procedure did not provide for a summary dismissal and that therefore in all circumstances the Respondent was obliged to follow it.

 

Alleged Gross Misconduct

 

 

20.       The Tribunal heard evidence from the Respondent and the Claimant about the Claimant's conduct on 8th May 2017, the day his employment was terminated. The Respondent's position was that the Claimant had lied to him, claiming that he had been working for nine hours and completed all of the work scheduled for that day. According to the Respondent, when he liaised with the Claimant in the late afternoon of 8th May, he discovered that 10 jobs remained unfinished and that the work the Claimant had finished should have only taken him 5 and a half hours, not the nine hours he was claiming. The Respondent's position was that the Claimant should have been able to complete all of the outstanding work in the nine hours that he had been working for. The Respondent also  gave evidence that in his view the Claimant had deliberately 'saved' the ten outstanding jobs so that he would have to do them on 9th May, which was liberation day, with the effect that he would receive far greater remuneration than if he had finished the work on 8th May, as scheduled. The Respondent sought to persuade the Tribunal that this conduct, taken together amounted to gross misconduct and that he was therefore entitled to dismiss the Claimant summarily, without notice, notwithstanding the terms of the Respondent's disciplinary procedure.

 

21.         The Claimant denied that the work he had completed should have been completed in five and a half hours. The Claimant was adamant that he had been working hard all day, for at least nine hours; the Claimant denied that there was any misconduct on his part let alone gross misconduct. The Claimant accepted, when challenged by the Respondent that the work should have taken about half that time, but only if two men had been working on the jobs in question. The Claimant's point was that the jobs were 'two-man jobs' which were almost impossible to complete on your own but that if one man could complete those jobs it would take significantly longer. The Claimant denied having any interest or motivation to work on Liberation day for extra pay. The Claimant also denied any suggestion that he had in any way approached his work on 8th May so as to ensure that he would be able to also work on 9th May for additional wages.

 

22.         The Tribunal explored with both the Claimant and the Respondent the various issues arising from these divergent accounts. It emerged, by way of various text messages and diary entries exhibited by the Claimant that the Respondent had recruited a junior / trainee window cleaner, 'Travis' who according to the Respondent's diary was due to commence his employment on 10th May. i.e. the next working day after the Claimant was dismissed. The Claimant's position was that the Respondent had already decided to dismiss him prior to the 8th May as Travis had been recruited to replace him. He was younger and therefore cheaper and the Respondent was simply 'looking for an excuse to sack him'. The Respondent accepted that Travis was going to start on 10th May but as a trainee who was going to have to be 'trained up'. The Respondent's position was that Travis was not a ready-made replacement for anyone, including the Claimant; he was a planned addition to the workforce and nothing more; certainly not a ready-made replacement for the Claimant.

 

23.         The Tribunal also heard evidence that the reason the Claimant described the jobs in question as 'two man jobs' was because he was not prepared to use the automated system provided by the Respondent. The evidence around this point was unclear from both parties but essentially the issue seemed to be that the Claimant, when working on the jobs in question had (in his view) a choice: he could either work at height on a ladder on his own, which seemed to the Tribunal potentially unsafe and / or contrary to any number of health and safety regulations; or the Claimant could use an automated system provided by the Respondent which would negate the necessity for the Claimant to work at height on a ladder on his own. The Claimant's evidence was that various customers had complained to him about the automated system and that therefore he had decided to do the jobs, in his words, 'properly' and in accordance with the wishes of the customers. Because of this the jobs took significantly longer but were finished to a higher quality.

 

24.         The Respondent's position was that no complaints had ever been received, at least not as per the Claimant's evidence. The Respondent noted that the only complaints he had ever received were in relation to the work of the Claimant. Other than his own evidence the Respondent was only able to produce letters of complaint, only one of which was written shortly prior to the Claimant's dismissal. The remainder of the complaints appeared after the claim was filed. The Tribunal ultimately placed no weight on these letters as even the letter received prior to the Claimant's dismissal did not in the Tribunal's view speak to the issues before it. In the absence of any persuasive or reliable evidence, the Tribunal does not find that any complaints had been received at all, to the extent that they are relevant to the determination of this hearing. The Respondent's main point, which the Tribunal did find to be credible, was that the Claimant was required to complete the jobs assigned to him in accordance with his instructions. The Respondent was of the view that it was not a matter for the Claimant to make decisions as to what was best for the Respondent's customers. The Respondent went further and explained to the Tribunal that in his view the customer had little or no say in how their windows were cleaned. The Respondent would provide a cleaning service on his terms and it was always in the gift of the customer to find an alternative service if they did not like his methods.

25.         Pertinently the Tribunal heard evidence that the various verbal warnings the Claimant had received were all in relation to similar conduct. That is to say issues about whether or not certain work was one-man or two-man jobs, issues about the speed and efficiency of completing work and issues relating to the Claimant's honesty about the work he had or had not completed. In other words, the Respondent's evidence was that the issues on 8th May had happened on several occasions previously and that the Claimant had been spoken to on several of those occasions.

 

26.         Having had the opportunity to appraise the Respondent, the Tribunal has no doubt that he is a robust businessman who runs his business efficiently and uncompromisingly. The Tribunal equally has no doubt that this is why he has overseen the development of a successful window-cleaning business which has demonstrably stood the test of time. The Tribunal found the evidence of the Claimant in this regard to be wholly unbelievable. The Tribunal had particular regard to his demeanour and the manner in which he gave his evidence on these points and were unanimously agreed that he was not telling the truth. It is literally incredible that he would risk serious injury doing something which in his own words was 'dangerous' (i.e. working at height on a ladder on his own) when there was a safe alternative provided by his employer which he had been specifically instructed to use.

 

27.         The Tribunal also accepted the evidence of the Respondent in relation to how long the jobs in question on 8th May should have taken the Claimant to complete. Other than not following clear instructions the Claimant was not able to offer any explanation as to why the work had taken almost twice as long as the Respondent stated that it should have taken him. Notwithstanding the evidence in relation to the automated systems the position seemed to be that such an issue was for the most part irrelevant to the jobs on 8th May. The Tribunal also noted with interest that the Claimant accepted the Respondent's estimate if the jobs had been 'one man jobs'.

 

28.         If it was true that the work in question could only have been completed in the relevant time-frame if two men had been working simultaneously then that was a fact that the Claimant was obliged to establish in support of his case. In the view of the Tribunal the Claimant did not come close to establishing this aspect of his claim. His evidence in this regard was both vague and difficult to follow. The Tribunal preferred the evidence of the Respondent and accepts that the jobs in question should have been completed in half of the time. i.e. by the time the Respondent met him on 8th May the Claimant should have completed almost twice as much work. Given the Tribunal was not able to accept the Claimant's evidence in relation to why the work took him so long, it follows that the Tribunal finds for the Respondent when he asserts that the Claimant lied to him on 8th May when he said that he had finished all of the work. It is evident that even on his own case the Claimant had not finished all of the work that was assigned to him.

 

29.         The Tribunal makes no finding as to whether or not the Claimant was motivated to behave as he did on 8th May because he identified that he would receive a higher rate of pay for the same work on 9th May. The Tribunal notes that in the absence of any other explanation for his dishonesty on 8th May that this is the only explanation that has been placed before it. Such explanation would therefore have been compelling if the Tribunal was required to make such a finding; the Claimant did not help his cause at all by failing to dispel the suspicion that the Respondent raised. Had there been no kernel of truth to the Respondent's suspicion the Tribunal would have expected the Claimant to have made some credible effort to dispel such suspicion.

 

30.         For the sake of completeness, to the extent that it was being suggested by the Complainant that the true reason for his dismissal was because the Respondent had already recruited Travis, the Tribunal does not find this suggestion to have been made out. The Tribunal has no doubt that the recruitment of Travis made the decision to dismiss the Claimant following the incidents on 8th May easier, as the decision was made in the knowledge that additional personnel had already been recruited; at worst the Respondent was not going to be short of an employee, even if that employee required training. However, the Tribunal is not persuaded that the reason for the Claimant's dismissal was that Travis had been recruited to replace him.

 

31.         However, having considered all of the circumstances of the case, the Tribunal was not persuaded by the Respondent's argument that the Claimant's conduct amounted to gross misconduct. It follows that the Respondent was not, as he contended, entitled to dismiss the Claimant summarily without notice. On any analysis, and as in conceded by the parties, the Respondent failed to follow his disciplinary procedure. Moreover, the Tribunal was mindful of the fact that according to the evidence of the Respondent, which the Tribunal accepted, this was not the first time he had been forced to speak to the Claimant about this variety of misconduct. Put another way, it seemed to the Tribunal that according to the Respondent, the Claimant had been guilty of gross misconduct on a number of occasions previously, and yet other than a verbal warning, which was seemingly not given on each and every occasion, he did not dismiss the Claimant. The Tribunal's view was that over a period of time and repeatedly, the Respondent had in effect acquiesced to the Claimant's behaviour choosing not to deal with it as gross misconduct. Having considered the Respondent's evidence the Tribunal was of the view that the Respondent did not actually consider that the Claimant was guilty of gross misconduct, rather that the Respondent was trying to circumvent his own disciplinary procedure on account of the fact that he knew he had not followed it.

 

THE LAW

 

Unfair Dismissal

 

32.       Article 61 of the Law provides that Claimant has an absolute right not to be unfairly dismissed. Article 64(1) of the Law states that the onus is on the Respondent to show the reason he dismissed the Claimant. It was clear from the JET2, submissions made at the Case Management Meeting, the evidence at the hearing and the submissions made by the Respondent that his stated reason for the Claimant's dismissal was his conduct. Conduct is one of the potentially fair reasons for dismissal as set out in Article 64(2) of the Law.

 

33.       For the reasons set out above, the Tribunal was not persuaded that the real reason for the Claimant's dismissal was the fact that Travis had been recruited. In the absence of any other reason being put forwards and in light of the findings in relation to the Claimant's conduct on 8th May the Tribunal finds that the reason for the Claimant's dismissal was his conduct. Specifically the Tribunal finds that the conduct giving rise to the dismissal was: (a) the fact that the Claimant had only completed half of the work he was reasonably expected to complete; (b) the fact that the Claimant provided no or no adequate explanation for not completing that work; and (c) the fact that the Claimant lied to the Respondent about the work he had finished.

 

34.       Having found that the reason for the dismissal was the Claimant's conduct, and therefore potentially 'fair' the Tribunal is then required to determine whether or not the dismissal was in fact fair. Specifically the Tribunal is required to assess whether or not the employer acted reasonably in treating that reason as a sufficient reason for dismissing the employee. The Tribunal is required to take into account the employer's size and administrative resources and must make its decision in accordance with the principles of equity and the substantial merits of the case. The Tribunal is not permitted to substitute its own standards for those of the Respondent and the dismissal of the Respondent will only be unfair if the decision falls outside the band of the reasonable responses available to the reasonable employer Foley -v- Claddagh Homecare Services Ltd [2017 TRE042].

 

35.       As set out in Foley the Tribunal is required to apply the Burchell Guidelines which are well known and require the Tribunal to consider as follows:

(i)                   whether the employer genuinely believed that the employee was guilty of the misconduct when it dismissed him;

(ii)                 if so, whether there were reasonable grounds for that belief; and

(iii)                whether the employer carried out as much investigation into the matter as was reasonable in all the circumstances before dismissing the employee.

 

36.       The Tribunal found that the Respondent did genuinely believe that the Claimant was guilty of misconduct when the decision was made to dismiss him. However, for the reasons stated above the Tribunal does not accept that the Respondent genuinely believed the Claimant to have been guilty of gross misconduct. It follows that the Tribunal also finds that there were reasonable grounds for the belief that the Claimant was guilty of misconduct.

 

37.       In relation to the third Burchell Guildeline the Tribunal was not persuaded in any way that the Respondent conducted any investigation into the matter. The Tribunal was in no doubt that when the Respondent first challenged the Claimant on 8th May he had already made up his mind that the Claimant was guilty of at least misconduct (from the Respondent's perspective, again) and proceeded accordingly. As the question of gross misconduct does not arise the Tribunal accordingly finds that the Respondent was not in breach of the first two Burchell Guidelines.

 

38.       The Tribunal has had careful regard to the size and resources of the Respondent's business, and in particular what it would be reasonable to expect the Respondent to do. However, and notwithstanding the relatively small size of the Respondent's business the Tribunal finds that it was unreasonable of the Respondent to not follow his own disciplinary procedure. The process, as agreed between the parties could never be described as onerous, complicated or expensive. As set out above the Respondent did not come close to following his own process, as he admitted, and accordingly the Tribunal finds that the Respondent is in clear breach of the third Burchell Guideline.

 

39.       The Respondent also made submissions to the effect that it was irrelevant he had failed to follow his own disciplinary procedure because had he followed that procedure the result would have been the same. i.e. the Claimant would have been dismissed without notice. The Respondent did not realise that he was raising an argument that had been considered by the House of Lords in Polkey -v- A E Dauton Services Ltd [1988] ICR 42, and the Tribunal of course makes no criticism of him in that regard. In that case their Lordships confirmed that the sole question for the Tribunal was whether the employer had acted reasonably at the time. However, in the same case their Lordships also stated that where an employer could reasonably have concluded, in the light of circumstances known to him at the time, that it would have been utterly useless to follow the normal procedure, then it could be open to the Tribunal to conclude that a failure to of an employer to follow its own disciplinary procedure might be reasonable.

 

40.       The Tribunal considered whether or not an argument along the lines of that considered in Polkey might be of assistance to the Respondent but concluded unanimously that it could not be. Had the Respondent followed his own disciplinary procedure he would have provided the Claimant with a written warning and therefore not dismissed him without notice on 9th May. At the very least and pursuant to the terms of the Contract, the Claimant would have worked and / or been paid for a further three weeks, had notice of termination been properly given.

 

41.         In all of the circumstances the Tribunal finds that the Respondent failed to implement and follow his own disciplinary procedures (by his own admission) and failed to adhere to the terms of the Contract. It follows that the dismissal of the Claimant on 8th May was unfair.

 

42.         Prima facie and with reference to his term of employment the Claimant would be entitled to compensation in the amount of £9,600. However the Tribunal was required to consider whether any reduction to this amount should be made pursuant to Article 77F of the Law, which provides as follows:

"…(3)     An award under Article 77(2) or Article 77E(3)(a) may be reduced by such amount as the Tribunal considers just and equitable having regard to any of the circumstances described in paragraphs (4), (5), (7), (8), (9) and (10)."

For these purposes only paragraphs (5) and (10) of Article 77F of the Law were relevant and therefore considered by the Tribunal. Paragraphs (5) and (10) provide as follows:

"(5)     The Tribunal considers that any conduct of the complainant before dismissal (or, where the dismissal was with notice, before the notice was given) that contributed directly to the dismissal was such that reduction of the award is just and equitable…

(10)    Any circumstances that the Tribunal considers would be just and equitable to take into account."

 

43.         The Tribunal has no doubt that the Claimant lied to the Respondent when he was challenged about the work he had or rather had not completed on 8th May. It follows that the Tribunal was similarly in no doubt that the Claimant had not therefore completed the work he was required to complete pursuant to his employment but was nevertheless expecting to be paid as if he had completed that work. While the Tribunal has been critical of the Respondent for not following his own procedures the Tribunal sympathises with the position the Claimant placed him in and can appreciate why, a businessman and an employer reacted in the way that he did. The Respondent runs a small business which employs at least two individuals and therefore has a responsibility to them. It is axiomatic that any business cannot sustain paying its employees for work which they simply do not do, particularly not a small business like that of the Respondent. It is also noted that if the Claimant did not complete the work he was supposed to complete then he would either have to complete the work at another time or another employee would have to. The inefficiency and potential detrimental effect of the Claimant not completing his work as required is, it seems to the Tribunal obvious; it should have been obvious to the Claimant.

 

44.         The Tribunal therefore found that pursuant to Article 77F(5) the Complainant, before he was dismissed, contributed by way of his conduct to his dismissal. The Tribunal also found that it would be just and equitable to reduce the Claimant's award on account of his conduct alone.

 

45.         The Tribunal also found that pursuant to Article 77F(10) it was just and equitable to take into account the size and likely resources of the Respondent's business and the detrimental effect that a compensatory award of £9,600 might have on that business. In of itself the Tribunal did not consider that such consideration would be enough to warrant a reduction in light of the unfair dismissal, had the Claimant not lied to his employer. However, in light of the Claimant's dishonesty and the detrimental effect that such dishonesty may have had on the Respondent's business and its other employees the Tribunal considered that it was just and equitable to reduce the compensatory award under this head also.

 

46.         Having determined that a reduction was warranted in all of the circumstances the final question for the Tribunal was the quantum of any such reduction. The Tribunal gave careful thought to the level of reduction that was appropriate, given its findings, and had reference to the judgment of the UK Employment Appeal Tribunal in Dr J F Allen -v- Queen Mary University of London [UKEAT/0265/15/JOJ]. In his judgment, when considering the UK statutory discretion equivalent to Article 77F of the Law, HHJ Richardson noted that:

 

"…a 100% reduction would be permissible if the Tribunal considered that a claimant's conduct was wholly responsible for the dismissal. Even then it does not follow that the finding must be 100%... But if the Employment Tribunal concludes that the Claimant's conduct was not entirely responsible for the dismissal and that the Respondent shares responsibility for it, then a finding of 100 per cent contribution is not permissible. This question of causation is not to be addressed in a narrow or technical manner. The Employment Tribunal's task is to apply standards of justice and fairness in reaching its conclusion."

 

47.         The Tribunal considers the approach HHJ Richardson instructive and adopts it. The view of the Tribunal is that the Claimant was, unfortunately, entirely responsible for his dismissal. The manner of his dismissal may have been unreasonable and therefore unfair, (owing to the Respondent's failure to follow his own clear and simple disciplinary procedures) but the sole reason the Respondent was moved to ignore that process and dismiss the Claimant summarily was the Claimant's conduct on the day in question; specifically, failing to do the work he was required to do and then lying about it. It follows that it was open to the Tribunal to reduce the compensatory award by 100% pursuant to Article 77F.

 

48.         The Tribunal has considered carefully whether or not it should exercise its discretion to make such a reduction but has, on balance decided it would not be just to order a 100% reduction. The reason is that the Claimant gave evidence that he was out of work for 4 weeks as a result of his summary, and as the Tribunal has found, unfair dismissal. The Tribunal heard evidence that the Claimant found alternative employment within 4 weeks, which was not disputed by the Respondent.

 

49.         Given the findings of the Tribunal in relation to the Claimant's claim for wrongful dismissal (below) the Claimant had in fact been without wages for one week. The Tribunal's view was therefore that as a direct result of his unfair dismissal the Claimant had in fact lost one week's wages. The Tribunal therefore considered that it would be just and equitable to reduce the Claimant's compensatory award by £9,000, for the reasons given above, and award him the equivalent of one week's wages, i.e. £600. This equates to a 93.75% reduction pursuant to Article 77F of the Law and the Tribunal wishes to be clear that had the Claimant not lost a week's wages as a result of the unfair dismissal the reduction would have likely been 100%.

 

Wrongful Dismissal

 

 

50.         It is well-established that in claims for wrongful dismissal the Tribunal is required to make its own finding as to whether the employee committed the act of gross misconduct for which the employee was summarily dismissed.

 

51.         For the reasons set out above, the Tribunal does not accept that the Claimant's behaviour amounted to gross misconduct and therefore finds that he was wrongfully dismissed.

 

52.         The Claimant was entitled to a statutory minimum notice period of three weeks pursuant to Article 56 of the Law. It is noted the parties agreed that the contractual notice period was also three weeks. It was also agreed that the Claimant's weekly wage was £600. In either instance the inevitable result is that the Claimant is awarded the sum of £1,800 in lieu of unpaid notice.

 

Award

 

 

53.        The total award to be paid by the Respondent to the Claimant is therefore £2,400.

 

 

 

 

Advocate Ian C. Jones, Deputy Chairman                                               Date:

…………………………………………………         

 

 




Page Last Updated: 14 Feb 2018