Mr V Naicker v Pilgrims Group Ltd: 2304300/2019
JUDGMENT
The complaint that the Claimant was unfairly dismissed is struck out. The remaining claim for wrongful dismissal will proceed to a hearing on 20 April 2020.REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaint, of wrongful dismissal, is not affected by this judgment. That claim will proceed as a claim for breach of contract in relation to notice pay.[1]This was a claim of wrongful dismissal i.e. that the respondent dismissed the claimant without giving him his contractual notice, which was 1 month.[2]The claim had started life as an unfair dismissal and wrongful dismissal claim but the unfair dismissal claim was struck out as the claimant did not have 2 years continuous service with the respondent.[3]The claimant was employed by the respondent from 4 July 2018 as a Building Security Manager. On 27.6.19, the claimant was dismissed. He did not receive one months’ notice, neither was he paid for it.[4]A wrongful dismissal claim is a common law action based on breach of contract. It is very different from a complaint of unfair dismissal. The reasonableness of the employer’s actions or beliefs is irrelevant. I have to decide the issue based on my own independent findings on the evidence.The Issues
[5]The issue that I have to decide is whether the claimant was guilty of conduct so serious as to amount to a repudiatory breach of contract entitling the employer to summarily terminate the contract without notice. The standard of proof is on balance of probabilities.[6]I heard evidence from the claimant on his own account and from Mr Phillip Drinkwater, Senior Operations Manager and dismissing officer. I was also provided with a joint bundle of documents. References in square brackets in the reasons are to pages in the bundle.Findings of Fact
[7]The Respondent is a security risk management and service support company. The claimant was employed as a Building Security Manager assigned to manage the provision of security at a client’s site.[8]On 29 April 2019, the claimant was contacted at 3.45am at home by a member of his staff, KJ, and told that there had been a scuffle between the duty shift manager, GW, and a security officer CO. KJ told the claimant that GW had pushed CO and that CO had retaliated. The claimant spoke to GW and CO briefly on the phone. He was told that the issue had been resolved and that they had apologised to each other. Nevertheless, he told them that he was going to report the matter to the Account Manager, Frikkie VanRooyen (FVR), his direct line manager.[9]The claimant reported the matter to FVR at 8.30am that morning. I should say at this point that FVR did not appear before this tribunal and as there were no witnesses to this or any other conversation between the claimant and FVR, the only direct evidence I have of conversations between them is that of the claimant. The claimant came across as a straight-forward and honest witness and in the absence of direct evidence contradicting his testimony, I accept his account.[10]The claimant gave FVR details of the incident, as it was reported to him, and FVR told him that as CO had accepted GW’s apology, he (the claimant) should have a “passage way” talk with them. The claimant understood this to mean an informal chat telling them that their behaviour was unacceptable and should not be repeated, what some employers might refer to as an informal caution.[11]Later that day, the claimant viewed the CCTV footage of the incident, which I have been provided with and viewed. What the footage shows is GW pushing CO causing him to fall to the ground and then CO getting up and moving towards GW. What then occurs is not captured. It also shows KJ trying to separate the two of them. In the process of doing so, KJ hurt her arm.[12]After seeing the footage, the claimant went back to FVR and told him what he had seen on the CCTV footage and that the incident was more serious than he had originally thought. FVR’s response was that GW was lucky that CO had accepted his apology. FVR did not alter his previous instruction to the claimant or advise him to take additional action at that point.[13]However, on 8 May 2019, FVR did instruct the claimant to initiate an investigatory process. This coincided with FVR becoming aware that a colleague who worked closely with the client had heard about the incident. FVR told the claimant that he was concerned that the client might find out about the incident. The claimant suggests that FVR asked him to conduct the investigation in order to cover his own back as the person ultimately responsible for the client account. That may well be speculation on the claimant’s part but it does have the ring of truth to it.[14]The outcome of the claimant’s investigation is contained in an Executive Summary document, in which he recommends that a disciplinary process be initiated leading to a first written warning for both individuals. [64-66][15]On 24 June 2019, the respondent wrote to the claimant inviting him to a disciplinary hearing to answer 9 allegations in relation to his handling of the incident. [67-69] These are set out below. Following a disciplinary hearing on 27 June 2019, the allegations were upheld and the claimant was dismissed without notice or payment in lieu of notice [101-102][16]The reasons for dismissal are set out in the dismissal letter dated 1 July 2019 and I am going to now address each of the 9 allegations referred to as the basis for his dismissal. Allegation 1 – failure to report seriousness of incident to FVR[17]I am satisfied that the claimant did report the seriousness of the incident to FVR. Phil Drinkwater (PD) Senior Operations Manager, and dismissing officer, told the tribunal that although this was an issue in dispute between the claimant and FVR, he did not make a decision on which account was correct as he decided not to get into a “he said she said” situation as the claimant was senior enough to act independently of his line manager and take appropriate action. I do not find that evidence convincing. The clear impression from reading the dismissal letter is that all allegations were upheld. PD must therefore have accepted FVR’s account that the claimant had not reported the seriousness of the incident to him. I, however, am not bound by that finding and am satisfied from the claimant’s evidence that he made full disclosure of the facts that he knew about the incident to FVR and did so in a timely manner. Allegation 2 -Failure to escalate to Pilgrims Group HR at the time of the incident[18]It is clear that the claimant did not escalate the matter straight away. However, the reason he gives is that his manager advised him to deal with the matter informally and I have accepted his evidence on that. What the respondent says is that given the claimant’s seniority and experience as a manager, he should have recognised that that advice was wrong and acted independently by escalating it anyway.[19]PD may well be justified in thinking that the informal approach taken to the incident was inappropriate, but the fact that the claimant was acting under the instructions of his superior is a significant mitigating factor in assessing the seriousness of his actions. If the manager had been asking the claimant to do something that was, in itself, unlawful or an obvious act of misconduct e.g. falsify timesheets, then he would not be able to argue that he was following an instruction. As it is, the instruction, whilst not one that the PD agreed with, was a legitimate one. Under the respondent’s disciplinary policy, not following a legitimate instruction of a manager is a potential disciplinary offence. I do not consider the claimant’s decision to follow it, and therefore his failure to escalate the matter to HR, to be an act of gross misconduct. Allegation 3 - Failure to conduct welfare checks[20]Although the claimant spoke to all of the individuals involved on the day, it was alleged that he did not do so after viewing the CCTV footage. Even if that was the case, to describe that as a deliberate and serious breach of conduct standard, rules and regulations is, in my view, seriously overstating matters. Allegation 4 - Allowing the parties involved in the physical altercation to work on shift together before a full investigation is completed[21]In light of my findings in relation to allegation 1 and 2, I find that this did not amount to an act of gross misconduct. Allegation 5 - Not conducting the investigation meetings until 13 May[22]The claimant was not instructed to carry out the investigation by FVR until 8th May. The claimant said that the 13 May was the earliest opportunity to do so because the individuals had left site and were not due back for a couple of days. In the circumstances, I do not consider the 5-day delay to be excessive or otherwise unreasonable. This is not gross misconduct. Allegation 6 - Failing to regard the incident as serious taking actions to arrange an informal meeting with GW and CO which ends in a handshake[23]This is the same issue as allegation 1 and 2. My finding is the same. Allegation 7 - Providing inaccurate information when justifying delays in processing the investigation[24]This allegation was not entirely clear but as I understand it, it was about inaccurate information provided by the claimant about the 2 individuals’ shift patterns. He says he gave the information to the best of his recollection without the benefit of documents. I have seen no evidence from the respondent to the contrary and therefore accept his evidence. This is not gross misconduct. Allegation 8 - Not dealing with messages from KJ[25]Again, it is not clear what the specific act or omission is here. I have seen the text messages from KJ to the claimant. The claimant spoke to KJ about her text messages, asked about her injury and whether she needed medical treatment and she said there was no need. I see no breach here. Allegation 9 - Putting the company at disrepute and potentially harming the relationship with the client[26]This is based on the so-called failure to promptly investigate the incident. If there was potential harm caused to the relationship with the client, then it was FVR who was responsible for that by his decisions. The claimant was not to blame.Conclusion
[27]In light of my findings above, I am not satisfied from the evidence that the claimant was guilty of conduct so serious as to amount to a repudiatory breach of contract entitling the respondent to terminate without notice. The wrongful dismissal claim therefore succeeds.Remedy
[28]The claimant was entitled to 1 months’ notice. According to the claimant’s ET1, his gross pay was £4166 per month and net pay £2886. Wrongful dismissal compensation is paid net and in my judgment I made an award of the stated net pay of £2886.[29]The claimant wrote to the tribunal on 10 September 2020 stating that the figure of £2886 was wrong and that the correct figure was £3128.14 on the basis that there should be no pension deductions as he has resigned from the pension fund.[30]A wrongful dismissal is a contract claim and the purpose of compensation in such claims is to put the person in the position they would have been had the contract been performed properly. A proper performance of the claimant’s contract would have been to dismiss him with contractual notice. That would have resulted in him being employed for a further month and being paid normally during that period. The fact that the claimant has since resigned from the pension scheme is not a factor I should take into account. Nor can I take into account the payslip which the claimant has produced with his recent correspondence as it was not in evidence at the hearing. The award therefore remains as £2886.