IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

 

TRIBUNAL JUDGMENT

 

Hearing Date:                16^th, 22^nd and 23^rd May 2018

 

Before:                                     Advocate C R Davies, Deputy Chairman

                                    Mrs E Harper, Mr C Holloway

                                               

 

Appearance:

For the Claimant:           In Person

For the Respondent:     Mr Huw Thomas, Carey Olsen

 

 

JUDGMENT

 

At the conclusion of this final hearing the Tribunal found as follows:

• The Claimant was not unfairly dismissed;
• The Claimant is entitled to the sum of £3,014.34 in respect of contractual claims;

 

The reasons for this decision are now set out below.

 

THE REASONS

 

Summary

1. The Claimant had been employed by the Respondent since 2013.  At the relevant time he was a night shift manager. In the summer of 2016 the Claimant became unwell and he then took significant periods of sick leave, returning to work for only brief periods.  Between 1 July 2016 and 30 June 2017 the Claimant was only able to attend work for 45 days.  The Claimant raised a number of grievances in 2016 and 2017.  There was a dispute as to whether these grievances were properly handled.  The employer did follow a grievance procedure and although the outcome did include some mild criticism of the management team none of the grievances were upheld. The employer implemented its capability procedure and dismissed the Claimant on the grounds of his capability on 6^th July 2017.  The Claimant did not appeal.

 

2. The Claimant applied for compensation for unfair dismissal and brought various contractual claims for unpaid wages, deductions, bonuses and holiday pay. The total of the contractual claims was £11,164.  He felt that he had been very badly treated by the employer and by his work colleagues and, essentially, that there had been a campaign against him which had eventually led to his dismissal.

 

3. There was no criticism of the Claimant’s performance at work, or his dedication.  Mr Donciu is an intelligent and deep-thinking young man who took his responsibility to his colleagues very seriously.

 

4. The Respondent’s position was that the Claimant had been fairly dismissed for a fair reason, having decided not to engage with a fair capability procedure.  The employer did however agree that the Claimant had been underpaid and at the commencement of the hearing valued his combined contractual claims at a total of £2,755.62.  This was adjusted during the hearing to £3,014.34. 

 

The Evidence

 

5. We were provided with a number of bundles of documents.   We heard evidence on oath from the Claimant and from a number of witnesses for the employer: Mr Damian Warman, Mr William Knight, Mr Christopher Bysouth and Mrs Louisa Berger.  The witnesses all provided us with witness statements, which stood as part of their evidence.  We felt that all of the witnesses in this case did their best to recall factual events truthfully, albeit that they saw the case very differently.

 

6. The Claimant issued this employment claim in 2017.  He also attempted to bring a discrimination claim, but this was struck out at an early stage because it was brought out of time. 

 

7. We would summarise the Claimant’s case and the relevant parts of his evidence as follows:

 

1. Mr Donciu felt that he had been targeted for dismissal because a manager, Mr Warman, had formed a personal dislike of him and other members of his family.  Mr Donciu’s brothers had been employed by John Lewis PLC in Jersey and had been dismissed by Mr Warman.  One brother, N, had been re-employed in England by John Lewis PLC and was doing very well (this was accepted by the Respondent). It was put to the Claimant in cross examination that Mr Warman had deliberately not  stood in the way of the decision to offer N a new job and that he was glad he was now doing well.
2. Mr Donciu believed that Mr Warman had influenced the decision to dismiss him. This was disputed by Mr Warman and others.
3. Mr Donciu felt that Mr Warman had behaved badly towards him and other employees from at least 2016 onwards. He stated that Mr Warman had tried to sack him in 2014 and accused him of being psychologically abusive to him and to other members of staff. This was denied by Mr Warman.
4. Mr Donciu’s grievances were not just about him, he had raised grievances about complaints that had been made to him by other members of staff. It was put to him in cross examination that the staff concerned had not supported those grievances. The Claimant felt that other staff should have been spoken to.
5. Mr Donciu felt that some of his colleagues had treated him badly, that his grievances had been ignored and that his colleagues had been rewarded for their poor behaviour towards him. He felt that his employer, and his colleagues, had made him ill and that his workplace was unsafe.  Mr Donciu and one of his colleagues had both been briefly suspended in 2016 and he felt that the suspension had been handled badly.
6. Mr Donciu had not resigned when he was paid incorrectly because he wanted to work for John Lewis and believed in the principles of the business.
7. Mr Donciu was aggrieved by the failure to pay his wages correctly and, understandably, he no longer trusted the employer’s figures.  The failure to pay him correctly had caused him difficulty.
8. Mr Donciu accepted that he had not participated in the capability process and had not agreed to the disclosure of medical information to his managers.  He felt that this was justified because he did not trust the employer.  Despite his decision not to engage, he felt that he should have been offered an adjustment to his working arrangements or a transfer to another store. He had applied for a job in another store but had been turned down.

 

8. A number of witnesses gave evidence on behalf of the employer and we summarise the relevant parts of their evidence as follows:
1. Mr Warman is a branch manager and director.  It is part of his role to oversee sickness absence in the two branches that he manages.  He felt that he had a good relationship with the Claimant who had brought a number of complaints to him.  He felt he had done his best to support him.  However, Mr Donciu had then raised a grievance against him personally which came as a shock and upset him greatly.   We were directed to emails from Mr Warman to other senior staff which reflected that upset. The grievance was investigated and was not upheld.  Mr Warman told us that he had nothing to do with the decision to dismiss Mr Donciu and denied that he bore any personal ill will towards the Claimant or his family.
2. Mr Knight was the Claimant’s line manager.  During the Claimant’s periods of sick leave he had tried to contact him regularly.  In 2016 the Claimant and one of his colleagues had been suspended briefly and it was Mr Knight that had investigated the matter and lifted the suspensions. In early 2017 he had offered Mr Donciu a management referral for a medical assessment by occupational health which he declined.    Mr Knight had tried to help sort out the payroll issues affecting the Claimant.  The Claimant returned to work briefly but then became unwell again.  By April 2017 Mr Knight was unable to contact him.  The Claimant returned to work briefly, and was then again unwell from June 2017. Mr Knight felt that he had done everything he could to support the Claimant;
3. Mr Bysouth is a deputy branch manager.  As part of his role, he reviews absence levels and assists with the fitness to work process.  He was notified by Mr Knight that Mr Donciu was not engaging with the sickness absence procedure and had twice declined a management referral.  Without this cooperation, it was difficult to manage Mr Donciu’s absence.  He wrote to the Claimant formally in February 2017 asking him to consent to a further process, a fitness to work checklist.  This process calls for a medical report which is then shared with the manager and which can be used to consider adjustments to the workplace.  The claimant agreed to this process but he would not consent to share any information arising from it.  The medical information could not be disclosed without his permission.  The claimant had asked for a phased return to work, but was unwilling to share any medical information to support the request.  In June 2017 Mr Bysouth invited Mr Donciu to a meeting to discuss his sickness and capability which could have included a discussion about adjustments to his working arrangements. Mr Donciu was warned that the process could lead to the termination of employment.  The Claimant did not attend the meeting and did not respond to the invitation.   A second meeting was arranged and the Claimant was again given a warning as to the possible outcome.  He did not attend this meeting.  Mr Bysouth sat alone, considered all of the information that he had as best he could and decided to terminate the employment on capability grounds.  He would rather have dealt with the situation in another way but felt he had no choice.  Mr Bysouth informed the Claimant of his dismissal and his right to appeal.  No appeal was lodged. Mr Bysouth was clear that Mr Warman had no input into the decision to dismiss Mr Donciu and was not consulted.  We were referred to a number of documents but none of them seemed to us to contradict that evidence.
4. Mrs Berger gave us evidence on the calculation of the contractual sums due to the Claimant.  There had been errors in calculations made by a member of her staff and she had corrected them. Mrs Berger took us through the various calculations which corrected month by month the amounts paid to the Claimant.  The adjustments are numerous and complex so we will not set them out here.  The Claimant was underpaid because there had been an error in calculating his sick pay entitlement.  A further small adjustment was made to the figures during Mrs Berger’s evidence and her conclusion was that £3,014.34 was due to the Claimant. 

It is a great shame that these errors were not corrected more quickly but we found Mrs Berger’s evidence helpful and she was kind to offer an apology on behalf of the payroll department to Mr Donciu for the problems caused to him by the underpayments.  Mr Donciu accepted that apology with grace. He did not point to any inaccuracies in the revised figures but, unsurprisingly, he did not feel confident enough to agree them.

 

9. The Tribunal found the following facts:

 

1. We find that there were clearly problems in Mr Donciu’s team at work which caused him (and no doubt others) distress.  Mr Donciu became unwell.  This led him to take a great deal of time off work due to sickness.  The mistakes made with Mr Donciu’s pay must have added to the stress that he was experiencing.  However, Mr Donciu did not resign, he decided to carry on in employment.
2. Mr Donciu was dismissed.   We found no credible evidence which would support Mr Donciu’s suspicion that his dismissal was engineered as a result of personal animosity on the part of Mr Warman, or any other manager.  We find that Mr Warman was not involved in the decision to dismiss the Claimant.
3. We find that the reason for the dismissal was Mr Donciu’s capability in light of his significant absences from work due to sickness, and that the dismissal was the final outcome of a capability process that Mr Donciu had chosen not to engage with. If he had chosen to engage, the outcome might have been different.
4. We find that Mr Knight and Mr Bysouth did their best to engage with Mr Donciu and to offer him support with the capability process.
5. We find that Mr Donciu decided not to appeal his dismissal.
6. We found that the correct total sum due in respect of the contractual claims is £3,014.34.

 

Unfair Dismissal - The Law

10. All employees are entitled to protection from unfair dismissal as a result of Article 61 of the Employment (Jersey) Law 2003 (the Law).  Article 64 of the Law sets out the test for unfair dismissal. 
11. The employer in an unfair dismissal case has to show that there was a fair reason for the dismissal.  In this case, the employer said that the reason for the dismissal was the employee’s capability and we have found that to be the case. Capability means the employee’s capability assessed by reference to their health, amongst other possible qualities. That was a potentially fair reason for dismissal (Article 64(2) (b) of the Law).  We then have to consider whether the dismissal was fair or unfair.  We have considered all the circumstances, including the size of the employer and we have considered the principles of equity and the substantive merits of the case.
12.   We considered whether dismissal fell within the band of reasonable responses open to the employer.  The employer drew our attention to the English case of East Lindsey District Council v Daubney 1977 ICR 566 (cited in Jersey in the case of Veloso v Jersey Milk Marketing Board (2003) JET).  Having considered the principles set out in that case, we find that reasonable and sensible steps were taken to consult with the employee and to find out the true medical position before a decision was made to dismiss him.
13. We have concluded that it was not reasonable to expect the employer to hold the Claimant’s job open any longer.
14. We have to find that the decision to dismiss was within the range of reasonable options open to the employer in relation to the Claimant.

 

The Conclusion

 

We have found that this was not a case of unfair dismissal.  We have found that the reason for the dismissal was the Claimant’s capability, a potentially fair reason.  We have considered the law.  We have found that the dismissal was not procedurally or substantively unfair in all the circumstances of the case.  We did express dismay at the conclusion of the hearing that such a large employer, which prides itself on its standards as an employer, would made such significant payroll errors over such a long period without taking the time to correct those mistakes when queries were raised.  Not all employees will be as determined as Mr Donciu has been and we hope that steps are taken to make sure that, in so far as is possible, this does not happen again.  We think it would be appropriate for Mr Donciu to receive a full apology from the employer for the payroll errors and we were surprised that no financial recompense for the errors, even in the way of interest on the unpaid amounts, had been offered to him as at the date of the hearing. 

 

• The complaint of unfair dismissal is dismissed;
• An award of £3,014.34 is made in relation to the contractual claims;

 

The total due to the Claimant, subject to any deductions required by law for tax or social security, is £3,014.34.

 

 

 

Advocate C R Davies, Deputy Chairman                                     Date: 29 June 2018