Mr Mustafa v G.R Wrights and Sons Ltd: 3201288/2023
EMPLOYMENT TRIBUNALS
Case No 3201288/2023
Between
Mr MustafaClaimantG.R Wrights and Sons LimitedRespondent
Before
Employment Judge ImanDate 21 January 2025
JUDGMENT
The complaints of unfair dismissal and wrongful dismissal are not well founded and are dismissed. EMPLOYMENT TRIBUNALS Heard at: East London Employment Tribunal On: 7-10 October 2024 and 21 January 2025 Before:
REASONS
The complaints of unfair dismissal and wrongful dismissal are not well founded and are dismissed.
Introduction
[1]Mr Mustafa was self-representing and was assisted by his father through part of the hearing. However, part- way through the proceedings he changed his representation to Miss Sanukulova. Mr Mustafa senior was in agreement with this. Miss Sanukulova was a member of the public observing proceedings and had volunteered to assist the Claimant. On questioning Miss Sanukulova the Tribunal re-assured itself that the assistance was entirely of a pro-bono nature.[2]Mr Mustafa senior brought it to the Tribunal’s attention that they were uncomfortable with the number of Respondents’ witnesses sitting in the public gallery. The Respondent’s took a pragmatic view and requested that some of the witnesses remain outside during the hearing.[3]Ms Macintosh represented the Respondent’s for the first day of the hearing. She attended the second day of the hearing but had lost her voice and therefore Miss Rosarno assisted the Respondent for the remainder of the hearing. Ms Macintosh did not attend for the rest of the hearing and the Respondent’s represented themselves thereafter.
Background
[4]The Respondent operates as a grain milling business in Essex. The Claimant was initially employed as a ware house operator from 2010- 2012, a Transport administrator from 2012-2016 an assistant Transport Manager from 01 August 2016 and then promoted to Transport Manager on 24 June 2022. He was dismissed on the 17 April 2023 for gross misconduct in respect of the theft of flour over a 08 month period.[5]The Respondent following an investigation and disciplinary hearing found that the Claimant was guilty of participating in an organised thefts of significant amounts of flour which was transported to individuals that were not customers of the Respondent.[6]On the 20 January 2023 the Respondent became aware of theft of flour and carried out an investigation on the same day, The Claimant was suspended pending completion of the investigation.[7]Following completion of the investigation, the Respondent was invited to a disciplinary hearing which was due to take place on the 10 February 2023 but was rescheduled to the for the 13 March 2023 due to the Claimant’s illness.[8]Prior to the disciplinary hearing taking place the Claimant alleged that the notes of the investigation were not correct and the Respondent disputed this.[9]On 13 March 2023 the Claimant raised a grievance into the following matters; - Privacy issues - Handling of investigation - Note taking inconsistency - GDPR request not carried out fully - Appointment of temporary transport manager[10]The Respondent arranged a grievance meeting on the 15 March 2023 which was rescheduled to the 22 March 2023. The Claimant’s grievance was not upheld.[11]The Claimant submitted a grievance appeal, the hearing was scheduled place on 12 April 2023.[12]The Claimant submits that the grievance appeal was pre-determined as it was chaired by James Wright, Commercial Director was biased due to being the son of the David Wright. The Claimant did not attend the grievance appeal. He also complained that witness statements had not been disclosed to him. A disciplinary meeting was then held 24 March 2023. The claimant was dismissed on the 17 April . The appeal subsequently occurred on the 26 April 2024.[13]The Claimant claims that his dismissal was unfair under the Employment Rights Act 1996. Further, he claims, following amendment of his claim at the hearing, that the Respondent’s breached his contract of employment by failing to give him the required notice of termination of employment. The Claimant claims that ACAS was breached due to the pre-determination demonstrated by the Respondents and that deprived him of a fair disciplinary process alongside fabrication and concealment of documents and intimidatory behavior during the investigation and disciplinary meetings by Mr David Wright.[14]The Respondent contests the claim. It says that the Claimant was fairly dismissed for gross misconduct due to his role of to the theft of flour over a period of several months and it was entitled to terminate his employment without notice because of his gross misconduct.
Preliminary matters
[15]At the beginning of the hearing, before the Tribunal heard any evidence, the Tribunal dealt with the issue of whether to allow the amendment of the claim to include the ground of wrongful dismissal. This was consented to at the hearing by the Respondent though it appears that they took a different stance in their closing submissions and submitted that it should be rejected. They had at the hearing taken a pragmatic view to allow the matter in due to the fact that it was based on the same circumstances.[16]As this was a completely new claim, time limits were relevant and the case of Selkent Bus Co Limited v Moore 1996 ICR 836 EAT was considered. The Respondents pointed out in closing submission that the new claim was well out of time. The claimant explained at the hearing that he was representing himself and had expected that this would have been included as part of his claim.[17]I applied the principles in Selkent and Abercrombie v Aga Rangemaster Limited [2014] ICR 209 and Vaughan and Modality UKEAT 0147 20. Although breach of contract was a new head of claim, and it was out of time, the focus should not be on the classification of the claim but on whether the amendment was likely to involve a substantially different enquiry from the existing claim. In the Tribunal’s view the Respondent would not suffer significant disadvantage. The issue would be whether the claimant’s conduct entitled the Respondent to dismiss without notice. The claimant’s conduct was already an issue in the case. Both parties were now representing themselves, but I note that the Respondent had the benefit of legal representation up until the hearing. The balance of hardship would be on the claimant if the amendment was refused. I therefore allowed the amendment and extended time to allow it in and there was nothing in the Respondent’s closing submissions to change my view. The issues Unfair dismissal
The issues
[18]The Claimant accepted that the reason for his dismissal was related gross misconduct to conduct, which is a potentially fair reason under sections 98(1) and (2) of the Employment Rights Act 1996.[19]The issue for the Tribunal to determine was whether the dismissal was fair or unfair within section 98(4) of the 1996 Act, and, in particular, whether the Respondent in all respects acted within the band of reasonable responses.[20]The Claimant stated that the dismissal was unfair because the Respondent followed an unfair process;. The outcome was pre- determined and the appeal was incapable of correcting the unfairness because the appeals manager was biased. The Respondent maintained that it had followed a fair process, it had considered the Claimant’s explanation, and acted reasonably in dismissing the claimant. Breach of contract/ wrongful dismissal[21]Whether the Respondent has shown that the Claimant fundamentally breached his contract of employment by committing an act of gross misconduct entitling it to dismiss his without notice.[22]Unlike for the Claimant’s claim of unfair dismissal, where the focus is on the reasonableness of management’s decisions, and it is immaterial what decision the Tribunal itself would have made, for the breach of contract claim, the Tribunal is required to decide for itself whether the claimant was guilty of conduct serious enough to entitle the Respondent to terminate the employment without notice. Witness evidence[23]In respect of the witnesses the Tribunal found the Claimant evasive in his answers and that he was seeking to distract from the issues at hand by deflecting his responses. I found his evidence to be unreliable and therefore where there has been a conflict in the evidence I have preferred the evidence of the Respondents witnesses. I found them to all to be reliable consistent, balanced and fair in their evidence.[24]Of the witnesses who gave evidence for the Claimant, two (Wendy Coulter and Desmond Solomon) had not worked for the Respondent for ova significant period of time and had not worked at the Harlow site where the Claimant worked and therefore I attached limited weight to their evidence.[25]I found Mr Wretton to be unreliable witness who sought to claim that he did scan out the load that left the Respondent’s premises on 17 January 2023, but the evidence demonstrated that the loads were not scanned.[26]Mr Nizamoglu’s evidence stated that hat there was an attempted theft of a load which he brought back to the yard. The Respondent’s evidence was that all loads were correctly delivered and invoiced to the customer in question, no returns were made to the yard and there were no irregularities identified. Therefore his evidence did not assist the tribunal on the issues before it.[27]On behalf of the Respondent the Tribunal hear from Mr. David Wright (Managing Director) Mark Robinson (Operations Director), James Wright (Commercial Director) Ian Dowsett, Mr. Hawes, Ms. Loraine Kaye, Mr. Woodgate (Technical Director). 28.Mr Hawes took notes at the relevant meetings and the Tribunal found him to be a credible witness. The Tribunal finds that Mark Robinson and Janes Wright were fair in his evidence and his approach during the grievance meeting and how he had questioned David Wright in respect of his behavior at the investigation meeting. The Tribunal did not find any merit to the Claimant’s case that Mr Dowsett was motivated to assist in targeting the Claimant so that he could retain employment in the role as Transport Manager. Nor did the Tribunal find any merit in that the Claimant’s case that Mr James Wright was biased. Mr James Wright presented as a credible objective and fair witness in respect to his role and handling of the disciplinary process. Miss Kaye gave a thorough explanation of the investigation and the systems that she reviewed in order to locate the 9 loads that had been missing and her report.[29]The Claimant claimed that on the 17 January 2023 he did help load the vehicles but that on the other dates he did not. In her evidence Lorraine Kaye as part of her investigation stated that on all other dates save 1 the Claimant was on site in the office and Mr Wretton was the loader.
Findings of fact
[30]There was a theme that ran through this case in respect of the Claimant’s case, namely that the decision-makers were biased and Mr David Wright alongside others in the business were targeting the Claimant. The Tribunal found that there was no bias or prejudgment on the part of the decisionmakers in either the disciplinary, grievance or the appeal process which included the actions/decisions of Mr James Wright, Mr Robinson and Mr David Wright.[31]Miss Kaye explained how following an investigation the Respondent discovered that there were nine loads of flour that were stolen in the same way as the load on the 17 January 2023 , starting on 11th July 2022 and continuing on 19/10/22, 31/10/22, 7/11/22, 9/12/22, 12/12/22, 16/1/23, 17/1/23 and 18/1/23. Each load comprised of 26 pallets of flour which is a total 1560 x 16kg sacks of flour valued at a total of £188,136.00. The Tribunal accepts the evidence of the Respondent’ and finds that none of the nine stolen loads were dispatched from the site either by scanning or recording.[32]The Tribunal finds that the grievance process was dealt with appropriately and that the short delay to the disciplinary process whilst this was decided was not unreasonable. The appeal process was thorough in itself in that 11 individuals were interviewed to ensure that the Claimant’s concerns were adequately investigated.[33]The Tribunal does not find that the Claimants confidentiality was breached by the Respondent during the disciplinary process as there was evidence to show that the Claimant was discussing the matter with his colleagues through whatsapp messages.[34]The Tribunal finds that the “previous incidents” of theft relating back to 2014. were part of a national scam, and they were not similar to the incidents of the theft as investigated by the Respondent. The 2014 incidents concerned fake external orders, whereas the incidents involving the Claimant were genuine orders which were duplicated, using internal orders/ numbers which could only be obtained as part of an “inside” job. 35.The Tribunal did not find that any of the disciplinary hearing notes had been fabricated or tampered with by the Respondent. There was no cogent evidence to support Mr Mustafa’s assertion of fabrication. It accepted that any discrepancies between documents were not material and/or fabricated but related to previous drafts not deliberate fabrications. Further, Mr Hawes who was taking minutes of the meeting presented and a reliable, professional and honest witness. The Tribunal did not find any evidence of interference with the process.[36]The Tribunal found that there was no intention to intimidate the Claimant by Mr David Wright or any other individuals during his investigation/ disciplinary meeting. It accepted the evidence of Mr David Wright and the other witnesses in respect of the location of Mr David Wright’s office, the photocopier and that it was likely that he was retrieving documents from the photocopier as opposed to deliberately seeking to intimidate the Claimant by walking past the interview room. Further, Mr Hayes was clear in his evidence that he did not see anyone walking past the room.[37]The Tribunal found that the Claimant was responsible for his own start and finish times as Transport Manager with responsibility for the transport office.[38]The Tribunal found that the Claimant did take the photograph of the lorry on the 17 January 2023 . The Tribunal accepted the evidence of Mr David Wright that Stones distribution received a message from the individual named Mehmet on the Whatsapp group stating that the wrong vehicle had been sent into the loading area at the Harlow site because it was a “double decker”. Mehmet then forwarded a picture of the vehicle to the Whatsapp group at 07:20 which had been taken from an individual at Wrights in the yard which he subsequently deleted. Stones distribution had saved the picture and Mr David Wright viewed the CCTV coverage of the loading bay which the Respondent showed the Claimant taking the photograph of the trailer at 07:15 am at the same angle as that sent to Stones Distribution five minutes later.[39]The Tribunal found as a fact that the Net2 fob system placed the Claimant in the loading area at the relevant time. Further, the evidence contained in the disciplinary appeal outcome letter and given orally by the witnesses who had watched the CCTV footage explained that the gait and some of the clothing worn by the individual taking the photograph was the same as what the Claimant was seen wearing earlier when arriving on site. The Tribunal find that Mr Mustafa did say at the investigation meeting that he remembered taking the photograph despite claiming later that this was a fabrication. All 3 individuals present at the hearing which included Mr Hawes all recalled the comment being made. Given it is material importance the Tribunal considered that they would have recorded the comment accurately and the Tribunal was not persuaded by the Claimant’s case that it was fabricated.[40]The meeting between Mr David Wright and Mr Harris and the Claimant was not intimidatory but may have been robust in some questions asked due to the serious nature of the allegations and the breach of trust . Mr Wright in the grievance appeal, carried out by Mr Robinson accepted that he had stood up to assist in retrieving photographs but had sat down when challenged which was confirmed by Mr Harris. Relevant law and conclusions – unfair dismissal[41]Section 94 of the Employment Rights Act 1996 gives employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to an employment tribunal under section 111. The claimant must show that she was dismissed by the respondent under section 95, but in this case the respondent admits that it dismissed the claimant on 4 March 2021. Section 98 of the 1996 Act deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2). Second, if the respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the respondent acted fairly or unfairly in dismissing for that reason.[42]In this case it is not in dispute that the Respondent dismissed the Claimant because it believed he was guilty of misconduct. Conduct is a potentially fair reason for dismissal under section 98(2). The Respondent has satisfied the requirements of section 98(2).[43]Section 98(4) then deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[44]In misconduct dismissals, there is well-established guidance on fairness within section 98(4) in the decisions in Burchell 1978 IRLR 379 and Post Office v Foley 2000 IRLR 827. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones 1982 IRLR 439, Sainsbury’s Supermarkets Limited v Hitt 2003 IRLR 23, and London Ambulance Service NHS Trust v Small 2009 IRLR 563).[45]Both parties provided me with written submissions which I have considered and refer to where necessary in reaching my conclusions. Mr Mustafa also claimed that the belief was not genuinely or reasonably held due to the pre-meditation and bias involved and nor was a reasonable investigation carried out.[46]I find that the Respondent’s management team held a genuine belief that the claimant was guilty of misconduct. Their evidence was clear about why they dismissed the Claimant, the dismissal and appeal letters were unequivocal on this point and they had reached their conclusions by carrying out a through investigation into the thefts.[47]The Respondents submitted what more was required in all the circumstances. It was clear to them following the investigation that this was a premeditated series of acts that took place over a period of months and involved individuals working internally. The regular discrepancies in the thefts had started after the Claimant started his role in June 2022.[48]The Respondent is not a large corporate employer and the steps it took to investigate were in my view reasonable in all the circumstances of the case. The Respondent hired an independent investigator and carried out a thorough investigation which included a stock check and checking the CCTV.[49]The CCTV showed pallets of flour being prepared and removed from the warehouse that involved Mr Wretton and the Claimant. The Claimant was suspended and invited to a disciplinary hearing on the 10 February. Which was rescheduled to the 13 March and then later to the 24 March whist the Claimant’s grievance was dealt with. The disciplinary appeal occurred on the 24 April 2023. I consider that this was a reasonable period of time and all in accordance with ACAS. 49. Despite being a small management team of 5 directors the Respondent took steps to ensure that that different individuals chaired the disciplinary hearing and the disciplinary appeal hearing.. A thorough investigation took place and the key part of the evidence for the Respondent was the whats app message that involved a photograph that was taken of a lorry and sent to an individual called “mehmet” as an indication that the vehicle had been sent to transport the stolen load.[50]The Respondent was confident in it’s conclusion and I consider it was reasonable for it to form that conclusion that the Claimant took the photograph which was sent to “Mehmet” .[51]The Tribunal saw evidence of a comprehensive CCTV footage and fob clocking records from the Net2 Access control system showing the whereabouts of the Claimant and it placed him in the loading bay at the time the photograph was taken. It was explained in oral evidence that you could see the area light up when the photograph was taken when watching the CCTV. Mr Mustafa disputed that it was him in the area at the time or on the stills which he described as blurred . He could not give a clear account of his whereabouts at the time despite it being at the start of his shift. Further he was identified by the cleaner who informed Mr David Wright that he recognized the Claimant. This account was given to the Claimant albeit a witness statement from the cleaner was not obtained.[52]The Tribunal did not find that that Mr David Wright had wanted the Claimant to fail in his new role and hence the motivation for blaming him for the theft. Mr David Wright in his evidence explained the promotion, training and support that had been provided to the Claimant which I found credible and that he also would have agreed to giving the Claimant the role as Transport Manager.[53]In all nine cases where loads had gone missing duplicate order numbers were created in order to allow the lorry to access to the yard and be loaded. In the Respondents view these duplicate orders had to be created from transport office staff. Someone in the organisation would need to be orchestrating the packing, loading and the collections of each of these trailer loads of flour. The individuals involved in this theft would need to have a working knowledge of the orders coming into the Transport Office, know how to duplicate and cancel order numbers and be able to load and dispatch product from the loading bay.[54]Mr Wright and the independent investigator viewed CCTV which covered the warehouse and loading bay area where they observed the Claimant and Mr Wrettom, loading the Stones trailer on 16/1/23, 17/1/23 and 18/1/23 . Due to the similarity in the way the thefts occurred and the Claimant being on shift on all those dates ( save 1) they were entitled in my view to conclude that the Claimant was responsible for thefts on the other dates. However , I also accept the Respondent’s position that culpability on just one date would have been sufficient to amount to gross misconduct due to the serious and organised nature of the theft.[55]I remind myself it is for the employer, with knowledge of its business, to make the judgment on whether the behaviour constitutes misconduct and, if so, how severe that misconduct is. The Tribunal must be careful not to fall into the trap of substitution but that said I re-iterate that theft of this type of orchestration and value would constitute gross misconduct on just one occasion.[56]I accept that that the respondent held its belief in the Claimant’s guilt on reasonable grounds This was an act of gross misconduct and it was behaviour which had the potential of bringing the Respondent into disrepute in respect of suppliers . This was serious breach of trust and the decision to dismiss was well within the range of reasonable responses. I did not find any evidence to substantiate Mr Mustafa’s view that the belief was not genuinely held and that he was being targeted as there had been similar thefts before that had not been investigated in this manner.[57]I have the band of reasonable responses clearly in mind in reaching my decision. It is immaterial what decision I would have made. The claimant’s case is that the respondent’s management ignored the evidence and length of service in reaching their decision and dismissal was a foregone conclusion. There was no evidence to suggest that the outcome was a foregone conclusion or that evidence was ignored.[58]The Claimant raised that other individuals could have been linked to the missing stock and also that he had not been provided with CCTV and Net2 access for the other dates just the 17 January. I note that he did not request the evidence for other dates and that the CCTV would not have been retained in any event for the other dates due to the passage of time. 58. I do not therefore, that the claimant was unfairly dismissed by the Respondent within section 98 of the Employment Rights Act 1996. Nor do I find that there has been a breach of the Acas code in respect of delay or a failure to provide documentation, bias, or intimidatory tactic.[59]Further, there was a dispute between the parties as to whether a criminal investigation was ongoing or not. The Respondent maintained that it had been re-opened, where as the Claimant stated that it had been closed therefore it did not take this or either parties view on this into account when coming to my conclusions. Conclusions - Breach of contract[60]The Tribunal must decide if the claimant committed an act of gross misconduct entitling it to dismiss without notice. In distinction to the claim of unfair dismissal, where the focus was on the reasonableness of management’s decisions, and it is immaterial what decision the Tribunal would have made about the Claimant’s conduct. The Tribunal must decide for itself whether the claimant was guilty of conduct serious enough to entitle the Respondent to terminate the employment without notice.[61]I set out my findings of fact about the Claimant’s actions They are equally applicable to the question whether the Claimant was guilty of conduct entitling the Respondent to dismiss without notice. . I rely on the CCTV and the net2 evidence in that regard and consider that it placed the claimant in the loading bay area and that I conclude that he did take the photograph of the lorry on the 17 January 2023 and that his actions in the role of the theft of the flour did amount conduct entitling the Respondent to dismiss without notice. I find that given the similarities in the way the thefts were carried out that the Claimant was guilty of theft of loads on the other dates specified but just one incident of involvement of theft would have been sufficient to constitute gross misconduct and entitled the employer to dismiss without notice. The complaint of breach of contract fails and is dismissed.