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«DECISION OF THE EMPLOYMENT TRIBUNAL 28 th and 3 I July and 1 August HELD AT: Douglas ON: Laurence Vaughan-Williams Fiona Robinson CHAIRPERSON: ...»

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Case No. 14/21

THE EMPLOYMENT TRIBUNAL

BETWEEN:

Claimant: Respondent:

Kevin Quine Auto Trade Centre Limited First Respondent

DECISION OF THE EMPLOYMENT TRIBUNAL

28 th and 3 I " July and 1" August

HELD AT: Douglas ON:

Laurence Vaughan-Williams Fiona Robinson

CHAIRPERSON: MEMBERS:

Peter M urcott

REPRESENTATION

The Claimant appeared and was represented by his son Michael Quine. The Respondent was represented by Maunce Kelly, the Managing Director of the Respondent.

DECISION

The Tribunal unanimously finds that the Claimant was not unfairly dismissed.

REASONS IN FULL FORM

The Claimant, who was born on 1" December I 949, lodged his Claim to the Tribunal on the 1.

21" March 2014. The Claimant claimed that he had been unfairly dismissed by the Respondent.

2. Mr Kevin Quine (the Claimant") had been employed by Auto Trade Centre Limited ("the Respondent") from the 5th March 2007 until he was dismissed by a letter dated the 6th January 2013 but which in reality should have been dated 2014. His job title was that of a delivery driver. His salary was £300 per week gross £261.12 nett.

3. The reasons given for the dismissal were:i) The Claimant had deliberately refused to deliver (goods) to a customer on Saturday the 7"' December 2013 as was reasonably required as part of his duties;

(ii) The Claimant had shouted at and shown aggressive behaviour towards a Director of the Respondent, Jeanette Suddards and another member of staff, Paul Hill, on Saturday December 2013.

7th (iii) The Claimant had walked out of the place of work, leaving his duties, which had a serious impact upon the Respondent for the rest of the day. The Claimant was offered the chance of an appeal, a right that he chose not to exercise.

4. Copies of the Disciplinary and Grievance procedures were enclosed for his information with the letter of dismissal. ["The policy"]

5. Mr Maurice Kelly, the Managing Director of the Respondent, opened the case for the Respondent as in unfair dismissal cases the onus of proof is on the employer to show the reason or, if more than one reason, the principal reason for dismissing the employee. (Section 113(1) of the Employment Act 2006). Mr Kelly had been on holiday at the time the events leading up to this dismissal occurred, however, he called a number of witnesses who could give first hand evidence of those events the first being Mr Robert Hewittt, a Manager of the Respondent, to give evidence as to the events of Friday December 6th 2013.

Evidence ofMr Robert Hewitt

5.1 Evidence was received from Mr Robert Hewitt, a Manager of the respondent, that either on Wednesday or Thursday immediately prior to Saturday December 7"' the Claimant had agreed to work on Saturday the 7th December.

5.1.2 Mr Hewitt stated that a problem arose on the late afternoon of Friday December 6th He was in the main area of the shop (of which the Tribunal was supplied with a colour photograph) when he became aware the Claimant was raising his voice in the rear of the shop in animated conversation with another employee whom he could not identify. He confirmed that he heard bad language being used by the Claimant. Mr Hewitt became aware that a customer called DGP Limited in Port Erin required a delivery of brake pads the following day and the Claimant was refusing to deliver. In his written statement Mr Hewitt stated :Kevin Quine told me before he left for the day he would not be delivering to DGP Garage on his run the next day. He offered no explanation to why he was refusing to deliver. I explained to Kevin the customer needed the parts for a job he was doing but Kevin adamantly refused and became verbally aggressive towards me. I walked away from him to avoid any further confrontation as there were other members of staff and customers in the showroom area. I informed Jeanette Suddards ofKevin's behaviour when she returned."

After Mr Hewitt had made it clear to the Claimant that the delivery had got to be made as far as he was concerned the matter was resolved.

5.1.3 The Claimant left the premises at 5pm.

5.1.4 At approximately 5:20pm Jeanette Suddards, a Director ofthe Respondent came in and Mr Hewitt reported the earlier altercation. He informed her that the claimant had refused to deliver to DGP Limited the next morning and had taken it upon himself to change the delivery day on the customer's invoice from Saturday to Monday.

In response to the question as to whether there had been any previous issues with the Claimant or any disciplinary proceedings against him, Mr Hewitt said that he was unaware of any.

5.1.5 As to whether any customer would have heard the heated exchange he said it was highly probable that they would.

Evidence of Mr Paul Hill

–  –  –

his job, he turned away from her and walked out".

5.2.2 Prior to this Statement being read Mr Michael Quine on behalf of the Claimant had made an application that certain of the Respondent's Witnesses Statements be excluded as the Witnesses were not going to be called by the Respondent. This application was partially successful, however, in relation to the statement by Mr Paul Hill, the Tribunal decided that the statement would be received and made it clear that the absence of the maker meant that it would carry less weight than would direct oral Testimony which could be tested by cross examination.





Evidence of Scott Sinclair 5.3.1 Evidence was given by Mr Sco(( Sinclair, the Stores Supervisor. In response to questioning he explained that Mr Paul Hill would carry Line Management responsibility for the Claimant until Mr Sinclair arrived at work.

5.3.2 On his arrival at work Saturday 7'" December Mr Scott Sinclair was by the counter, about four metres away from the Claimant and Mr Paul Hill. The Claimant was refusing to deliver to DGP Limited in Port Erin that day.

5.3.3 According to Mr Sinclair, Mr Paul Hill was visibly shaking as a result of the conduct ofthe Claimant, which he described as "aggressive". Paul Hill telephoned Jeanette Suddards, a Director of the Respondent. Later, in her evidence, Jeane((e Suddards said that Paul Hill's voice on the telephone sounded as ifhe was near to tears.

5.3.4 Jeanette Suddards came into the shop and took the Claimant into the office which is at the back of the shop, in an attempt to defuse matters with the Claimant and calm things down.

Mr Sinclair heard the Claimant shouting whilst in the office. He could not hear what was being said. He had a clear line of vision to the office. There were no customers in the shop at the time.

5.3.5 Mr Sinclair also gave evidence that on the emergence of Jeanette Suddards and the Claimant from the office, he saw her raising her hand, in a defensive manner, asking the Claimant who was still shouting, to "calm down". The Claimant was allegedly shouting at Jeanette Suddards in an aggressive manner, but according to Mr Sinclair he was difficult to understand. Mr Sinclair described the Claimant's manner as "rambling" and confirmed that he heard him swearing. Mr Sinclair said that it was difficult to hear precisely what was being said because "it was like trying to listen to two people talking at once." Nevertheless he repeated that Jeanette Suddards was trying to calm the Claimant down. As regards the Claimant's behaviour, Mr Sinclair stated "We were gobsmacked". He stated that no-one should be spoken to like that. He described the Claimant's manner as intimidating and aggressive.

The Evidence of Jeanette Suddards

5.4. I Jeanette Suddards a director of the respondent had been infonned on Friday 6"' December by Manager Robert Hewitt that the claimant was refusing to deliver to a customer DGP Garage the next morning and had initially changed the delivery day on the customer's invoice from Saturday to Monday.

5.4.2 Jeanette Suddards stated that on Saturday 7"' December 2013 she received a telephone call from the Parts Advisor Mr Paul Hill. Mr Hill stated the Claimant was refusing to deliver to DGP Garage. Jeanette Suddards came into work and stated that when she arrived she asked the Claimant to accompany her to the office so she could try to ascertain why he had a problem delivering to this customer. She was aware that, sometime previously, DGP had asked the Claimant not to park blocking their only entrance when delivering. The Claimant had delivered and worked on numerous Saturdays since then without any issues or refusals.

She stated that she was trying to find out what the problem was.

5.4.3 Despite questioning the claimant at length the Tribunal never did ascertain with any certainty the reason why the Claimant was refusing to deliver and had changed the delivery date from Saturday to Monday. Mr Sinclair had suggested that it could have been that DGP had made a report to the Respondent aIIeging erratic driving on the part of the Claimant.

5.4.4 Jeanette Suddards' evidence was that when she arrived she wanted to calm the situation down which was why she asked the Claimant to come to the office. She stated that she had never seen the Claimant in such a state before. The confrontation began straight away and the claimant was swearing. The Claimant "flatly refused to sit down". She wanted to find out what the problem was. She described the discussion in the office as "heated". She felt quite threatened by the Claimant's conduct since he was quite close to her face and she felt "trapped". She described the situation as "scary":Kevin was shouting at me and said he was not interested in talking to me or trying to sort anything out, he was not delivering to DGP Garage and that was that!" He was going home.

r asked Kevin if he was refusing to do his job and advised him that if he left the building I would take that as a refusal to do his job. He replied saying "You can take it how you want".

5.4.5 Jeanette Suddards was very relieved when they were out of the office and when they were back in the showroom:- "as J followed, he turned on me very aggressively shouting and r put my hands pointing in my face. up in front of me with my palms flat to protect myself and asked Kevin to "Please calm down and back away." He said he was leaving. J asked him again ifhe was refusing to do his job. Kevin ignored me and walked out."

5.4.6 Jeanette Suddards also gave evidence that she had given the Claimant no reason to get angry. She had suffered two heart attacks in the past of which she imagined the Claimant would have been aware since she had been off work for three months. The staff had sent her a get well card which the Claimant had signed.

5.4.7 She had had no previous altercations with the Claimant and was quite surprised at his conduct.

5.4.8 When she saw the Claimant on the following Monday December 9'h 2013, he had calmed down. She explained that his conduct towards herself and Paul Hill was not acceptable and that disciplinary action would be taken. She confinned that she had the power to suspend him but did not do so. When asked why she did not use her power of suspension (presumably on the Saturday), she said that she did not think that the Claimant would actually return on the Monday. She stated that had he not calmed down she would have asked him to go home. As far as she was concerned the Claimant's aggressive behaviour had become the dominant issue and that the question of the non-delivery of goods to DGP Limited a secondary issue.

The Evidence ofMaurice KeIly

6.1.1 Mr Kelly was on holiday at the time of the incident of December 6 th and 7'" 2013 and did not return until December 23'd. On December 23,d he returned from annual leave to read a report from Director Jeanette Suddards regarding the incidents involving the Claimant which occurred on the 6 th and December 2013. As Jeanette Suddards was then on annual leave 7th he spoke to several members of staff during the course of the day, who had witnessed the incidents, to gather the facts before he spoke to the Claimant. December 23,d was the last working day before the Respondent closed for the Christmas break and was an extremely busy day for deliveries. Mr KeIly left a message with the Manager Robert Hewitt to ask if the Claimant would come to the office when he became available. The Claimant arrived at the office just before 5pm and refused to discuss the matter. Mr KeIly said "he was very argumentative" and shouted at him:You've had all day to give me a [expletive deleted] Maurice, I'm off to do my Christmas shopping".

Mr KeIly informed him this would be a disciplinary matter and dealt with on his return.

6.1.2 Mr Kelly subsequently wrote to the Claimant on the 27th December 2013 to invite him to a disciplinary meeting ("the Meeting") on January 3,d 2014. A copy of his letter was before the Tribunal. It stated inter alia:At this meeting the question of Disciplinary Action against you in accordance with the

Company Procedure, will be considered with regard to:

• Your deliberate refusal to do your duties as is reasonably required

• Aggressive behaviour towards a Director and another member of staff

• Walking out of your place of work without authorisation" In response to the Claimant's complaint that he had not supplied the Claimant with a copy of the Company Disciplinary Procedure Policy prior to the Meeting, Mr Kelly said "there was known to be a copy of the same in the workplace". Mr Kelly's letter informed the Claimant he was entitled to be accompanied by another work colleague.

6.1.3 Mr KeIly believed the Claimant had been fairly dismissed due to his conduct. He said that the Claimant had deliberately refused to do his duty, a duty which he had been doing for six years which constituted a breacb of his Contract of Employment. He added that the Claimant did not provide a reasonable explanation as to why he would not carry out his instructions after having been given an opportunity to do so. In breach of Contract he had walked out of his place of work (on Saturday, December 7th 2013) without a valid reason or authorisation.

6.1.4 The principal reason for the Claimant's dismissal however was because of his aggressive behaviour towards the Directors and members of staff.



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