IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

 

 

IN THE MATTER:

 

 

BETWEEN

DAVID MARINHO

CLAIMANT

 

AND

 

 

SPELLBOUND HOLDINGS LIMITED T/A TRUSTFORD

RESPONDENT

 


TRIBUNAL JUDGMENT


 

Reference:                    [2017] TRE 212

 

Hearing Date:                24 July 2018     

 

 

Before:                                     Mrs H G Griffin, Chairman

 

Appearance:

For the Claimant:           In person

For the Respondent:     Mr W Smith, Integra Legal Limited

 

 

THE JUDGMENT

 

 

It is the judgment of the Tribunal that the Claimant’s claim of unfair dismissal fails.

 

 

 

THE DECISION

 

Background

 

1.       By a Claim Form presented on 7 December 2017, the Claimant brought a complaint of unfair dismissal against the Respondent ("Claim").

 

2.       By a Response Form presented on 21 December 2017, the Respondent defended the Claim.

 

3.       There was no dispute between the parties that the Respondent dismissed the Claimant.

 

The Claim as formulated in the Claim Form

 

4.       The Claimant asserted that:

a)       the sanction of dismissal was excessive in the circumstances; and

b)      the Respondent failed to properly investigate the incident in that it failed to interview a senior employee who the Claimant believed was present during the relevant incident.

 

5.       The Claimant also submitted that the dismissal was unfair because he was the subject of an existing final written warning which was, in the Claimant’s view, unfairly issued.

 

The Response as formulated in the Response Form

6.       The Respondent accepted that the Claimant was an employee and accepted that the Claimant had sufficient continuity of employment to present a claim of unfair dismissal.

 

7.       The Respondent submitted that this was a ‘conduct’ dismissal, which is a potentially fair reason under the provisions of Article 64(2) of the Employment (Jersey) Law 2003 (“Employment Law”).

 

8.       The Respondent submitted that it:

a)       undertook a reasonable investigation and followed a fair disciplinary procedure before dismissing the Claimant; and

b)      acted within the range of reasonable responses of a reasonable employer in dismissing the Claimant in all the circumstances.

 

Case Management to date

9.       This matter came before Deputy Chairman Advocate Jones for a Case Management Meeting 9 March 2018. The parties were issued with Case Management Orders and the matter was listed for a hearing on 24 July 2018 (“Hearing”).

 

Existing Final Written Warning

 

10.   Under the provisions of Article 2 of the Employment and Discrimination Tribunal (Procedure) Order 2016, the Tribunal has wide case management powers to ensure that cases are dealt with expeditiously and that the evidence which the Tribunal hears is relevant to the issues being considered.  Furthermore, in the case of Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, the Court of Appeal stated that a Tribunal should not spend time listening to evidence which is demonstrably irrelevant to the issues being considered. 

 

11.   In view of the above, I instructed that I would not hear evidence regarding the fairness of the decision to issue a final written warning in February 2017 (“Final Written Warning”).  The Final Written Warning remained ‘live’ on the Claimant’s personnel file at the time of his dismissal.  However, while the existence of the Final Written Warning was relevant for the purposes of determining the fairness of the Claimant’s dismissal, it was not appropriate for the Tribunal to carry out an assessment of whether or not the original decision to issue the Final Written Warning some nine months previously had been fair.

 

12.   I therefore did not allow evidence regarding the decision to issue the Final Written Warning and in considering my decision, I did not assess the fairness of the decision to issue the Final Written Warning.

 

Documents and evidence

 

Witness evidence

 

13.   In advance of the Hearing, the Tribunal received a witness statement from the Claimant (p23-24] and the Claimant also gave evidence under oath.

 

14.   On behalf of the Respondent, the Tribunal also received witness statements and heard evidence under oath from:

 

a)       David Lanyon, Sales Manager and dismissing officer [p30-34]; and

b)      Steve Vidamour, Aftersales Manager for Guernsey and appeal officer [p35-37].

 

15.   A witness statement was also submitted on behalf of RH.  However, RH’s evidence dealt exclusively with the decision to issue the Final Written Warning.  As set out above, this evidence was not relevant to the issues being considered and RH therefore did not attend to give evidence.

 

 

 

 

Hearing File

 

16.   The Respondent provided the Tribunal with an agreed file of documents (“File”) to which each party referred during the course of the Hearing.  References to page numbering in this judgment are to the pages in the File.

 

Submissions

 

17.   The Respondent helpfully provided written representations and both parties made their arguments orally by way of brief submissions.

 

Material Facts

18.   I carefully considered all of the evidence (including witness accounts).  However, I summarize here only that evidence which is relevant to the Issues. Where it is has been necessary to resolve disputes about what happened I have done so on the balance of probabilities taking into account my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence including the documentary evidence. In this decision I do not address every episode covered by that evidence, or set out all of the evidence, even where it is disputed. Rather, I have set out my principal findings of fact on the evidence before me that I consider to be necessary in order to fairly determine the claims and the issues on which the parties have asked me to decide.

19.   The Respondent is wholly owned by Ford Motor Company and sells new and used cars, vans and commercial vehicles.

 

20.   The Respondent employed in the Claimant as a driver from 26 July 2007 until his dismissal on 17 October 2017 (“Dismissal”).

 

Final written warning

 

21.   In February 2017, following a disciplinary process (“February Disciplinary”), the Claimant was found to have committed an act of misconduct, namely:

a)       inappropriate and aggressive behaviour directed at another colleague;

b)      unprofessional behaviour (shouting at another colleague in the presence of customers); and

c)       failing to abide by the Respondent's principal of 'respect and care for everyone'.

 

22.   The Respondent issued the Claimant with the Final Written Warning, which was to remain on his personnel file for a period of 12 months from February 2017 [p 69-70].  The Respondent notified the Claimant of his right to appeal, but he did not do so.  The Claimant was aware that the Final Written Warning was to remain on his file.

 

23.   During the February Disciplinary, the Claimant complained that he had been the subject of bullying by other members of staff.  The Respondent told the Claimant that, if he believed that he was being bullied, he should raise this with his line manager.

 

Incident

24.   On 10 October 2017, an argument occurred between two of the Respondent’s other members of staff in the Respondent’s service reception area.

 

25.   Having witnessed this argument, a customer (“Customer”) made a comment (“Comment”) which the Claimant considered to be racist. The Tribunal makes no finding regarding the nature of the Customer’s comment because it is not relevant.

 

26.   The Claimant left the Service Reception area but then returned a few minutes later to confront the Customer about what he had said (“Incident”). Following the Incident, the Customer filed a formal written complaint about the Claimant [p77-79] (“Complaint”) in which he stated that he "felt intimidated" by the Claimant's conduct and that the Claimant's "attitude was shocking".

 

Investigation

27.   Following the Incident, the Respondent’s service manager (“Service Manager”) took witness statements from two employees who were present and witnessed the Incident [p71-72]. The first witness ("AB”) stated that:

 

a)       the Claimant was "immediately riled" by the  Comment and left the service reception area;

b)      the Claimant returned some minutes later and went "face-to-face" with the Customer;

c)       the Service Manager removed the Claimant from the Service Reception area because one "could see something was going to happen"; and

d)      the Claimant was "red in the face with anger".

 

28.   The second witness ("CD") stated that:

a)       the Customer didn't say anything offensive or racist;

b)      the Claimant came "right up to the face of the customer”;

c)       the Claimant had "violence in his face";

d)      the Claimant was “totally out of order", was "very aggressive" and "red in the face".

 

29.   On 12 October 2017, the Service Manager wrote to the Claimant to advise him that, following the investigation, he considered that the matter warranted disciplinary action [p 80-81]. He notified the Claimant that the allegations against him were:

 

a)       aggressive behaviour towards the Customer, specifically getting up close to a customer's face and accusing him of being racist;

b)      bringing the Company’s name into disrepute; and

c)       failure to "drive the standard of customer care" in line with Company purpose.

 

30.   The Service Manager also:

a)       notified the Claimant of the date of the disciplinary hearing (“Disciplinary Hearing”);

b)      notified the Claimant of his right to be accompanied to the Disciplinary Hearing; and

c)       reminded the Claimant that the Final Written Warning was on his file which meant that the outcome of the Disciplinary Hearing may result in the Claimant’s dismissal.

 

31.   The Service Manager also enclosed guidelines for the Claimant and his representative in order to help them prepare for the disciplinary hearing [p 82-84].

 

Disciplinary Hearing

32.   On 17 October 2018, the Claimant attended the Disciplinary Hearing and was accompanied by a colleague.  The Disciplinary Hearing was conducted by Mr Lanyon, Sales Manage and minutes were taken of the meeting [p85-88].

 

33.   At the Disciplinary Hearing, the Claimant:

a)       denied that he had been either angry or aggressive towards the Customer;

b)      stated that the statements provided by the Customer, AB and CD were not true;

c)       stated that the Customer had been racist towards him; and

d)      questioned why the General Manager had not been called as a witness because the Claimant believed that he had witnessed the Incident.

 

34.   At the Hearing, the Claimant reiterated that he had not behaved aggressively towards the Customer.

 

35.   Mr Lanyon adjourned the Disciplinary Hearing and, having spoken to the General Manager, established that he did not witness the Incident. 

 

36.   Mr Lanyon concluded that:

 

a)        the evidence was “very convincing” that the Claimant behaved in an aggressive manner towards the Customer; and

b)      in light of the Final Written Warning (which was for a similar incident) he could not be confident that this type of incident would not happen again in the future.

 

37.   Mr Lanyon therefore dismissed the Claimant with notice and confirmed this decision to the Claimant by letter dated 24 October 2017 [p 89-90].  Mr Lanyon notified the Claimant of his right of appeal. At the Hearing, Mr Lanyon gave evidence that this kind of incident would normally constitute gross misconduct but he was uncertain of the exact words used by the Customer and therefore gave the Claimant the benefit of the doubt and a payment in lieu of his notice.

 

Appeal

 

38.   On 26 October 2017, the Claimant appealed the decision to dismiss him on the following grounds [p91]:

 

a)       the Claimant believed that he had been bullied for the previous 8 years;

b)      the Claimant believed that he had received the Final Written Warning because, having suffered years of bullying, he reacted once and was disciplined unfairly for his reaction;

c)       the Claimant believed that CCTV of the Incident should have been viewed;

d)      the witness’ accounts were deliberately not accurate because the two employee witnesses feared that they would lose their jobs if they supported the Claimant; and

e)      the Claimant believed that he was entitled to 26 weeks' pay rather than 10 weeks (this ground arising from confusion on the Claimant’s part as to notice pay and compensation for unfair dismissal).

 

39.   A letter confirming the appeal hearing was sent to the Claimant on 30 October 2017 [p 92-93] together with additional guidance notes to help the Claimant prepare for the appeal hearing [p 94-96].

 

40.   An appeal hearing (“Appeal Hearing”) took place on 8 November 2017 and was conducted by Mr Vidamour, Aftersales Manager.  The Claimant was accompanied by a former colleague and made extensive submissions, and minutes were taken [p 97-102].

 

41.   Having heard the Claimant’s submissions, Mr Vidamour adjourned the Appeal Hearing and then contacted both the Service Manager and disciplining officer from the February Disciplinary in order to ask about the extent to which the Claimant had raised the issue of bullying with them.  Mr Vidamour’s discussions with both individuals were included in the Appeal Hearing minutes.

 

42.   Mr Vidamour wrote to the Claimant on 10 November 2017 to confirm the outcome of the Appeal Hearing [p105-107]. Mr Vidamour rejected each of the Claimant's grounds of appeal and upheld the original decision to dismiss the Claimant.  He concluded that:

 

a)       the Claimant raised the alleged bullying informally, but the allegation was unspecific and the disciplining officer instructed the Claimant on how to raise a complaint more formally.  The Claimant did not do so and did not raise the issue of bullying after the February Disciplinary;

b)      the Claimant did not appeal against the Final Written Warning;

c)       CCTV was only in operation outside and did not cover the area where the Incident had occurred; and

d)      Mr Vidamour accepted the evidence of the two witnesses and the Customer over that of the Claimant.

 

The Law

 

43.   Article 61 of the Employment Law provides that an employee has the right not to be unfairly dismissed. Article 64(1) of the Employment Law states that the employer must show the reason for the dismissal. In order to be a fair reason for dismissal, the reason must fall within the scope of the five potentially fair reasons as set out in Article 64.  The Tribunal is required to determine whether the dismissal was fair or unfair by having regard to the reason for dismissal and assessing whether in all the circumstances the employer acted reasonably or not in treating that reason as a sufficient reason for dismissing the employee. The Tribunal is required to have specific regard to the size and administrative resources of the employer in reaching its decision and to make that decision in accordance with equity [fairness] and the substantial merits of the case. The Tribunal must not substitute its own standards to those of the employer and a dismissal will be unfair only if the decision to dismiss falls outside the band of reasonable responses of a reasonable employer.

44.   In cases involving the misconduct of an employee, the Tribunal must apply the guidelines as set out in the case of British Home Stores Limited v Burchell [1980] ICR 303 (EAT) (“Burchell Guidelines”).  The Tribunal has referred to the Burchell Guidelines on many previous occasions. The Burchell Guidelines state that the Tribunal must consider:

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

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

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

Conclusion

45.   Although the Claimant spoke at length at the Hearing about the alleged bullying, I concluded that this evidence was not relevant to the issues being considered by the Tribunal. I accepted that the last occasion on which the Claimant raised the bullying issue was during the February Disciplinary.  The evidence showed that the Claimant was aware that if he was being bullied he needed to raise this formally with his line manager; he did not do this.  The Claimant's allegation of bullying related only to his view that the decision to issue the Final Written Warning was unfair. For the same reasons as set out in paragraphs 10-12 above, I therefore discounted the Claimant’s evidence relating to bullying as being irrelevant.

46.   The Claimant submitted that the General Manager witnessed the Incident and that he should have been interviewed as a witness. However I accepted the evidence of both Mr Lanyon and Mr Vidamour who both gave evidence that they spoke to the General Manager and that he confirmed to them that he did not witness the Incident. Furthermore, the General Manager was not identified as being present during the Incident by either of the employee witnesses or by the Customer in their statements. I therefore rejected the Claimant's submission that the failure to call the General Manager as a witness affected the fairness of the investigation or the fairness of the Claimant’s dismissal.

47.   Having considered all of the evidence, I was satisfied that the Respondent undertook a reasonable investigation and that the disciplinary and appeal processes were both thorough and afforded the Claimant the opportunity to defend himself and explain his position.  I concluded that the Respondent, having conducted a fair and reasonable examination of the facts, came to the genuine conclusion that the Claimant was guilty of misconduct.  Furthermore, in light of the Final Written Warning and the fact that it was issued by the Respondent for similar misconduct by the Claimant, I concluded that the decision to dismiss the Claimant fell within the band of reasonable responses of a reasonable employer.

48.   The Claimant's claim of unfair dismissal is therefore rejected.

 

Mrs H G Griffin, Chairman                                                    Date:           5 September 2018

 

 

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Page Last Updated: 05 Sep 2018