IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
MARK PEEL INVESTMENTS LIMITED
Reference:  TRE 048
Hearing Date: 23
H G Griffin, Chairman
For the Claimant: In
For the Respondent: Mrs
unfairly dismissed and wrongfully dismissed the Claimant.
compensation for unfair dismissal is reduced by 30%.
1. By a Claim
Form presented on 4 April 2018, the Claimant brought complaints of unfair
dismissal and wrongful dismissal against the Respondent ("Claims").
2. By a Response
Form presented on 26 April 2018, the Respondent defended the Claims.
3. There was no
dispute between the parties that the Respondent dismissed the Claimant. However, the Claimant disputed the
Respondent’s alleged reason for dismissal.
Claim as formulated in the Claim Form
4. The Claimant
asserted that the dismissal was procedurally unfair as the Respondent failed to
undertake any investigation or engage in any procedure prior to the
5. The Claimant also
denied all of the Respondent’s allegations regarding his alleged
6. The Claimant
asserted that the Respondent dismissed him in breach of contract by failing to
give notice to terminate his employment.
The Claimant asserted that the Respondent was not entitled to dismiss
the Claimant without notice.
Response as formulated in the Response Form
7. The Respondent
accepted that the Claimant was an employee and that the Claimant had sufficient
continuity of employment to present a claim of unfair dismissal.
8. The Respondent
asserted 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”).
9. The Respondent
asserted that it had dismissed the Claimant for falsifying his timesheets.
10. The Respondent
a) it undertook a
reasonable investigation and followed a fair disciplinary procedure; and
b) it acted
within the range of reasonable responses of a reasonable employer in dismissing
the Claimant in all the circumstances.
Management to date
11. This matter
came before Deputy Chairman Jones for a Case Management Meeting 5 June 2018.
The parties were issued with Case Management Orders and the matter was listed
for a hearing, which took place on 23 August 2018 (“Hearing”).
12. In advance of
the Hearing, the Tribunal received a witness statement from the Claimant [tab 4]
and the Claimant also gave evidence under oath.
13. On behalf of
the Respondent, the Tribunal received witness statements [tab 4] and heard
evidence under oath from:
a) Mr Mark Peel, Director;
b) Mr Brandon
14. In addition, Mrs
Elaine Peel, Director, gave evidence under oath. Mrs Peel did not provide a witness
statement in advance of the Hearing because of a mis-understanding. However it was clear to me that Mrs
Peel’s evidence was key to the Respondent’s case. I was satisfied
that the Claimant would not be prejudiced by the lack of formal witness
statement because the Hearing File contained numerous notes, statements and
comments by Mrs Peel [tab 8]. In
any event, the Claimant consented to Mrs Peel giving evidence under oath.
15. The Respondent
also submitted a witness statement from a former co-worker of the Claimant
(“AB”). AB did not
attend the Hearing and was not cross-examined on his evidence. I therefore attached little weight to
his witness statement.
16. The parties
each provided a file of documents to which they referred during the course of
the Hearing. However, the
Respondent failed to deliver its file to the Tribunal in advance of the
Hearing. I therefore only received
the Respondent’s papers part-way through the Hearing. Most of the documents in the
Respondent’s file were duplicated in the Claimant’s file and the
Respondent drew my attention to documents which I had not previously seen.
17. Both parties
made their arguments orally by way of brief submissions.
18. At the start
of the Hearing, I identified the relevant issues for the parties
(“Issues”). The Issues were:
a) What was the
reason for the Claimant's dismissal? The Respondent asserted that it dismissed
the Claimant for mis-recording his time, although the Respondent also submitted
significant evidence regarding alleged time-keeping issues. The Claimant asserted that the real
reason for his dismissal was his two-week absence arising from his dog's
b) Did the Respondent
hold a genuine belief in the Claimant's alleged misconduct on reasonable
grounds, having followed as reasonable an investigation as was warranted in the
c) If so, was the
decision to dismiss a fair sanction, ie.
was it within the reasonable range of responses open to a reasonable employer
when faced with these facts?
d) If the
Respondent did not use a fair procedure, would the Claimant have been fairly
dismissed in any event had such a procedure been followed?
e) If the
dismissal was unfair, did the Claimant cause or contribute to the dismissal by
culpable or blameworthy conduct? This requires the Respondent to prove, on the
balance of probabilities, that the Claimant actually committed the misconduct
If the Claimant did cause or contribute to his
dismissal, is it just and equitable to reduce any award and, if so in what
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 the real reason for the dismissal
and will not automatically accept the reason provided by an employer. 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.
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
 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:
the employer genuinely believed the employee was guilty of the misconduct when
it dismissed him;
so, whether there were reasonable grounds for that belief; and
the employer carried out as much investigation into the matter as was reasonable
in all the circumstances before dismissing the employee.
carefully considered all of the evidence (including witness accounts). However, I summarise 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
22. The Respondent
is a cafe and takeaway delivery business. It employed the Claimant as a
delivery driver from 20 May 2013 until 9 February 2018 when the Claimant was
summarily dismissed without notice (“Dismissal”).
23. The Claimant
worked nine hours per week spread over Tuesdays, Wednesdays and Fridays. According
to his contract of employment, the Claimant’s working hours were variable. However, the evidence showed that he was
required to arrive at work at 6pm, which was when deliveries started.
Claimant’s time-keeping at the beginning of his shift was sometimes poor
For a long time, the Respondent dealt with the Time-Keeping Issue
informally. However, on 1 and 6
December 2017, Mrs Peel issued verbal warnings to the Claimant for arriving
late to work.
25. Mrs Peel
suspected that the Claimant was mis-recording his time. She noticed this when
preparing the Claimant's pay for December; on 1 and 6 December 2017 (when she
had issued the Claimant with verbal warnings for lateness) the Claimant had
recorded start times of 6pm on his timesheet. Mrs Peel did not raise the issue
with the Claimant and paid his wages as normal. She did not mention her
concerns to Mr Killey or to the Claimant, but decided to quietly investigate,
anticipating that the mis-recording would happen again. However, Mrs Peel did
not herself witness any further mis-recording of time by the Claimant.
26. In January
2018, Mrs Peel received a series of text messages from AB (another employee)
[tab 8] in which AB alleged that the Claimant was arriving late for work and
then mis-recording his start time. Mrs Peel raised the matter with Mr Killey
(Manager) who advised her that the Claimant's lateness and mis-recording of
time had been going on for a prolonged period. Mr Killey’s evidence in
this regard was that he should have done something about it sooner but the
Claimant was a good worker and was well liked.
27. On 30 January
2018, the Claimant's family dog became very ill. The vet prescribed eye drops
to be administered to the dog every 2 hours.
28. As a result of
having to administer the eye drops, the Claimant texted both Mrs Peel and Mr
Killey to tell them that he would not be able to work his shift. The Claimant then missed all of his
shifts over the next two weeks because of the need to administer eye drops to
his dog. On each occasion when he was due to work, the Claimant contacted
either Mrs Peel or Mr Killey by text message to notify them that he would not
be working his shift.
29. On 9 February
2018, the vet instructed that the dog’s eye treatment could be
discontinued. The Claimant
telephoned the Respondent and the call was answered by Mr Peel [statements at
tabs 4 and 8]. This was the first
time that the Claimant had telephoned the Respondent since his dog fell ill;
all other communications had been by text message.
30. From the
evidence (and in particular the fact that the Claimant usually texted when he
did not intend to work his shift) I did not accept Mr Peel's evidence that the
Claimant telephoned to inform him that he would not be coming to work. Mr Peel
informed the Claimant that he was being dismissed because "it wasn't
working out". The discussion then became heated and resulted in Mr Peel
putting down the phone on the Claimant.
31. A short time
later, Mrs Peel sent a text message to the Claimant as follows:
“Hi Jonny I believe it is not working out for
you and us at the moment. Of course we fully understand bringing up a family
etc is bloody hard. But lately I have had complaints from customers etc
regarding delivery times. You know I am not the kind of person to just let
someone go but I have two this time. I have jiggled things around hell of a lot
lately to the point it affects everything. I was waiting to your reply
yesterday and never received one as I am on edge if you are coming in all the
time. Competition is rife, sales are down and the last thing the business needs
is for it to decline furthermore. It reflects on everyone working at the Dicq.
I am away tonight for a week and to be honest I could not gamble you coming in
or not so I have someone doing your shifts. No bad feelings on either side Jonny
and I reckon I have been completely fair with you with all the chats we have
had. Sorry Jonny.”
32. The Claimant
responded in a lengthy text in which he stated that he did not believe that he
had been dismissed for lateness or complaints (as stated in Mrs Peel’s
text message) but because he took time off to look after his dog.
33. On 29 March
2018, Social Security spoke to Mrs Peel in order to establish the reason for
the termination of the Claimant's employment. In a subsequent and letter from
Social Security to the Claimant, it confirmed that the Claimant's employment
was terminated "due to time keeping
and absence without reasonable cause".
34. The Claimant
asserted that his dismissal was unfair because the Respondent failed to conduct
any investigation or any disciplinary or dismissal process. The Claimant gave
evidence that the first he heard that he was being accused of mis-recording his
time was when he received the Response Form in these proceedings.
35. The Claimant
gave evidence that he took his start times of his own watch and that there was
a discrepancy of several minutes between his watch and the clocks used by other
members of staff. The Claimant considered that this explained why the Respondent
might think he was late although he acknowledged that on occasions he struggled
to park due to other vehicles on the slipway.
36. Mrs Peel gave
evidence that she did not feel comfortable telling the Claimant that he was
being dismissed for mis-recording his time. She said that it was for this
reason that her text message to the Claimant (following the Dismissal over the
telephone by Mr Peel) did not make any reference to the mis-recording of time. Mrs
Peel said that she wanted to tell the Claimant this face-to-face but that he
did not return her calls after the Dismissal.
37. Mrs Peel also
stated that when she spoke to the Social Security Department, the Income
Support worker did not allow her to finish her explanation as to the real
reason for the Dismissal.
38. The Respondent
asserted that the Claimant had consistently, over a period of years, mis-recorded
his time. Mr Killey gave evidence that "everyone knew" that the Claimant was arriving late but writing
down his 6pm start time. However,
although Mr Killey would deliberately call out the Claimant’s arrival
time when he was late (so that the Claimant would write the correct start time
down on the timesheet) Mr Killey never raised the issue formally with the
Claimant. He explained that this
was because everyone liked the Claimant and he was a hard worker.
39. Both Mr and
Mrs Peel confirmed that they believed that they had undertaken a sufficient
investigation and that the dismissal procedure was fair in the circumstances. According
to Mr and Mrs Peel, the decision to dismiss the Claimant was taken before the
Claimant was absent due to his dog's illness.
40. I first
considered whether the reason for the Claimant’s dismissal was for
mis-recording of time (as asserted by the Respondent) or for some other reason,
including time-keeping or absence due to the dog’s illness (as asserted
by the Claimant).
41. I carefully
considered the evidence, including Mr Killey’s evidence regarding the
alleged mis-recording of time. I
considered Mr Killey to be a truthful witness. However, although the question of
mis-recording of time and lateness may have been an issue, the overwhelming
body of evidence supports a finding that the Claimant was dismissed because of
his unreliability over the previous two-week period while his dog was ill.
established that the Claimant was dismissed for his unreliability, I considered
the fairness of the dismissal. I
noted in particular that the Respondent made no effort to conduct a
disciplinary process and that the Claimant was dismissed over the telephone.
43. I also noted
that, given the Claimant’s relatively long service, a reasonable employer
would have provided the Claimant with an opportunity to defend himself at a
properly constituted disciplinary hearing.
There was no such hearing and the Claimant was afforded no opportunity
to explain himself.
44. In view of the
above, I concluded that the Claimant was unfairly dismissed.
45. In accordance
with the provisions of Article 77F of the Employment Law, the Claimant is
entitled to compensation for unfair dismissal as follows:
21 x 90 = £1,890
46. In accordance
with the provisions of Article 77F of the Employment Law, I then considered
whether, in the circumstances of the case, I should exercise my discretion and
apply a reduction to the Claimant’s compensation on just and equitable
grounds. I considered whether:
a) the Claimant would
have been fairly dismissed had the Respondent followed a fair procedure; and
b) the Claimant
caused or contributed to his dismissal by culpable or blameworthy conduct.
47. Based on the
evidence, I did not believe that the Claimant would have been fairly dismissed
had a proper procedure been followed. The Claimant was a long-serving employee
who had only received verbal warnings to date. However, the Claimant's
persistent absence over the preceding two week period in order to care for his
dog caused real inconvenience to the Respondent. Whilst I have no doubt that
the Claimant cared deeply for his dog, an employer cannot be expected to accept
such absence unquestioningly over a prolonged period. After the diagnosis and
missing work on the first evening, the Claimant could (and should) have made
alternative arrangements to care for the dog during his evening shifts. In
taking two weeks off work to care for his dog, the Claimant showed an
unjustified disregard for the impact his behaviour was having on his employer
and his colleagues.
48. In view of the
above, I considered that it was appropriate to exercise my discretion under
Article 77F(10) to reduce the Claimant's compensation by 30%.
30% of £1,890 =
49. The Respondent
shall pay to the Claimant the sum of £1,323 by way of compensation
for unfair dismissal.
50. In considering
the Claimant's claim for wrongful dismissal (unpaid notice) I was required to assess
whether the Respondent was entitled to dismiss the Claimant without notice in
all the circumstances. The evidence did not support the Respondent’s
submission that the conduct was so serious as to warrant summary dismissal
51. I therefore
concluded that the Claimant was wrongfully dismissed and is entitled to receive
damages for breach of contract for failure to give notice to terminate his
4 x 90 = £360
52. The Respondent
shall pay to the Claimant the sum of £360 by way of damages for
breach of contract.
Compensation for unfair dismissal
Less 30% reduction
Damages for breach of contract (unpaid notice)
PAYABLE BY THE RESPONDENT
Mrs H G Griffin, Chairman