Claim Number 13/132
IN THE ISLE OF MAN EMPLOYMENT TRIBUNAL
IN THE MATTER of
Gregory Michael Hawke
Claimant
and
Isle of Man Post Office
Respondent
HELD AT: Douglas
ON: 2 nd July 2014
CHAIRMAN:
MEMBERS:
Mr Douglas Stewart
Mrs Sue Hammond
Mr William Quigley
REPRESENTATION
The Claimant was not legally represented.
The Respondent was represented by Mr Oliver Helfrich of Long & Humphries,
advocates
DECISION
The Tribunal unanimously declares that Ihe Claimant was not unfairly dismissed.
INTRODUCTION
1.
The Claimant seeks compensation for alleged unfair dismissal which is resisted by the
Respondent. Employment commenced on 17th March 2009 but the date of termination of
employment was in dispute. The Respondent contends dismissal was by letter dated 2
nd
May 2013.The Claimant believes his employment ended on 4th June 2013.
2.
The Claimant had commenced employment with the Respondent as a Business
Relationship Executive but rose to Senior Business Relationship Executive. This was
categorised as a senior business level.
After elevation, he worked to bring in new
business involving the eGaming sector, an important area for the Respondent. This
involved him travelling to the UK, to South Africa, Ireland and Australia. The pivotal issues
are that the Claimant, in the opinion of the Respondent, behaved in such a manner as to
amount to Gross Misconduct and in consequence he was dismissed without notice by
letter dated 2"' May 2014 - a letter which did not state in specific terms that the
Claimant's employment ended that day although the fact of dismissal was plain. The
Claimant was asked to sign a copy of this letter and did so on 8th May acknowledging that
he had both received and understood the letter.
3.
The conduct on which the Respondent relied up to date of termination of employment
involved evidence which they believed showed breach of confidentiality; breach of trust;
disloyalty to the Post Office and misconduct such that they determined after investigation
they could no longer trust the Claimant to continue. Their case was that the Claimant had
become frustrated with his lot feeling that he was under-rewarded for the amount of
success that he had had in bringing in new business. The evidence they had gathered
pointed to the Claimant having decided to set up his own business in competition to his
employer and to take with him customers or suppliers and also to poach from the Post
Office some of his colleagues. Their case was that this was no alcohol-fired chatter or
vague pipedreams but an employee who spoke of his plans and intentions to some seven
known people - whether or not alcohol had been consumed. In any event, on their
arguments, the old Latin maxim, in vino veritas (in wine there is truth) would be apposite.
4.
The Claimant disputes all this and in his Claim Form asserts that there was wild talk after
too much alcohol had been consumed after a day at the ICE eGaming Conference in
London
but that he had never had any serious intent to leave and to set up in
competition. He alleges a conspiracy between two employees, Lisa Duckworth and Ben
Caley, to stitch him up - believing that Ben wanted to be promoted into his pOSition. He
admits
~nly
to a piped ream of becoming self-employed. During the very late night
conversations during ICE in London and the following day, talk of his pipedreams had
been down to alcohol with no serious intent to leave, let alone to steal customers or staff.
5.
The Claimant had signed a contract of employment for each of his two roles and also had
specific documents regarding his duties of confidentiality and official secrecy.
6.
The Post Office sought to follow a disciplinary process laid down in its Code. The
Claimant disputes that the Code was properly followed.
7.
In this decision, the following entities are referred to:
~
ICE - a major e-gaming conference held annually in London.
~
IMS - Integrated Mailing Solutions, part of the IOMPO services which offers
mailing, printing, scanning and franking services.
~
Stargaze Media - an e-gaming company in South Africa (lOMPO's largest client).
~
Sunset Slots - an e-gaming company in South Africa (lOMPO client).
»
GameOn - a PR and Marketing Company that offers services as a preferred
supplier to IOMPO.
»
ITS - a target for further business for IOMPO based in Australia.
The Respondent's Evidence
7.
Pursuant to an order of the Tribunal, notes/minutes of the disciplinary investigations have
been produced and included in the bundle of documents for use at the hearing.
8.
Ms Beverley Dixon, Human Resources Officer gave a statement as to the notes of
evidence but did not attend and the Claimant did not (after being asked) challenge the
acceptance of the notes into evidence. She had attended a disciplinary hearing on 30th
April 2013. She took a hand written note of the hearing. She typed up her notes (Tab 22)
and then destroyed the ha ndwritten note but she confirmed in her written statement that
the typed transcript is accurate.
9.
Mrs Karen Duckworth, Commercial Director for the Respondent first became aware of
the issues leading to dismissal on 1st March 2013. She introduced some background
details of the way the business operated. The Claimant was one of six in a Sales team.
One of the four divisions was IMS - International Marketing Solutions which had been set
up 15 years ago providing mailing services at either end of the postal chain. However,
saturation point had been reached on the island and therefore it was necessary to look for
new mankets to break into and this was when the Respondent had moved into providing
direct mailing for companies involved in the eGaming business where global possibilities
were foreseen. It was successful and part of that success was down to the Claimant
bringing in new business.
10. On 1,I March 2013, she spoke on the phone to a Sarah Jones who was a director of
GameOn Marketing. This company was involved in PR and manketing to the eGaming
industry and the relationship was two-way - they helped the Respondent promote itself
within the industry and the Respondent provided services to some of their clients. It was
therefore an important relationship.
11. Sarah Jones reported that during ICE, a major eGaming Conference in london,
the
Claimant had told her and a colleague of hers called James Robbins (Commercial
Manager) that he was planning to set up his
own business and that he had already
spoken to two of the Respondent's existing clients. It was this initial conversation that set
in train the subsequent investigation.
12. The Claimant questioned Mrs Duckworth as to why it had taken some three weeks since
ICE for this conversation to come up. The explanation was that during this conversation,
Mrs Duckworth mentioned in passing that the Claimant was in Australia on company
business to develop a potential new line of business with ITS. This prompted Sarah
Jones to volunteer events at ICE which apparently had been discussed internally at her
company and they had decided not to become involved in problems internal to IOMPO.
However, on hearing that the Claimant had been entrusted with this important job, Sarah
Jones felt that she had to volunteer knowledge about her concern due to remarks made
by the Claimant to her and in her presence on two occasions during ICE. Full details of
these remarks are set out below.
13. The company, ITS, already had some limited business relationship with the Respondent
and the brief given to the Claimant for the Australian trip was to try to win other new
business worth one million pounds.
14. Seized of this new information, Mrs Duckworth then spoke to James Robbins,
Commercial Manager at the same company as Sarah Jones, seeking confirmation which she obtained. Additionally, however, she also received a call from a customer of
the Respondent called Phillip Superamonion. He was Head of Operations for Stargaze
Media, an important South African connection, indeed their largest eGaming client. He
reported that he had heard from two directors of Stargaze (Mark Fredricks and Errol) that
the Claimant was leaving the employment of the Respondent. His worry was that the
Respondent might not be able to handle their business anymore. This again was a report
of what the Claimant had said during ICE in February 2013.
15. The Claimant, after ICE, was back at work on the island before going to Australia and
then on his return from there, he was stressed out and was signed off for two weeks. He
returned from sick leave on 5th April 2013. The Claimant (and who later said in
questioning by the Tribunal that while he was off sick he had no idea that the employers
were making some investigations regarding him) returned to work and was seen by Mrs
Duckworth. Somewhat curiously, at this meeting the Claimant volunteered that he had
been thinking of leaving the company because of pressure of work but that he had
changed his mind and was now fully committed. The Claimant later denied in answer to
the Chairman that he had any awareness of the investigation being carried out whilst he
was absent but this volunteered remark rather suggests that he must have thought that
word of his plan to leave might have filtered back somehow or another from what had
been said at ICE.
16. As a result of that discussion, Mrs Duckworth concluded that the Claimant had a case to
answer regarding the allegations made. In passing, mention should be made at this point
about the status of the interview between Mrs Duckworth and the Claimant immediately
on his return to work. This was after him being in Australia and absent from work for some
two weeks due to stress (which in his written evidence he put down to work-related stress
and to his father's illness but which in his sworn evidence in the witness box he put down
only to work-related stress saying it was not connected with his father).
17. She discussed the evidence she had gathered and after prompting from the Claimant
wrote to him the same day saying that "I have completed my initial investigation into the
allegation that you have discussed setting up your own business in competition with Isle
of Man Post Office to both suppliers and customers and I have concluded that there is a
case for you to answer for the inappropriate use of your position and a loss of confidence
and faith in your integrity." She requested that he attended an interview on 15th April. The
Claimant was suspended with full pay and was informed that that at the next interview he
would have the opportunity to go through all the evidence that she had uncovered and to
provide his own explanation. She warned him that if the charges were substantiated, it
could result in his dismissal.
18. On 9th April, the Claimant was provided with four statements from Mr Cowin, Mr Ramsay,
th
Ms Thompson and Ben Caley. On 10 April, the Claimant was invited to put in a written
statement and it was made clear that the meeting on 15th April would be a disciplinary
hearing. The Claimant provided a full written statement dated the 11th April. Details of the
evidence available to the Respondent on which the decision was based are discussed in
depth below. The Claimant asked for consent to tape-record the meeting on 15th April
and he did so but he never produced any typed version of the recording although he
challenged Mrs Duckworth's version of events as recorded in her note of 15th April.
19 On being interviewed by her, he admitted that he had spoken to Mark Fredricks of
Stargaze Media about setting up his own business to compete. The Claimant also
confirmed what Mrs Duckworth had heard from Ms Jones and Mr Robbins about having
spoken to them on two occasions - once on a Thursday evening / far into Friday morning
and then at lunch the following day. The Claimant also admitted to Mrs Duckworth that
another client of the Respondent (Neil Copan of Sunset Slots, also from South Africa) had
been present when he had been speaking to Mark Fredricks.
20. Because of these admissions and consequent upon the discussions on 5th and 15th
April, Mrs Duckworth decided that the matter had to be advanced on the basis of the
information available and so she asked Mr Peter Cropper, the Operations Director to
initiate the disciplinary process.
21. In her evidence and under questioning, Mrs Duckworth dismissed the suggestion that
there was some type of conspiracy between her and Ben Caley to get Ben Caley
promoted to the Claimant's position as was the allegation. She made abundantly clear
that the Claimant had an excellent record working for the Respondent and that, in effect,
he was a rising star and valued employee and very effective to the extent that although
originally whilst working on development of the eGaming business, his line manager had
been Russell Cowin, in practice he had grown into a role whereby he was really reporting
direct to Mrs Duckworth. In turn, Ben Caley who had only been in the eGaming division
for some five months was being mentored by the Claimant and was gradually being
groomed to take on more of the client relationships freeing up more time for the Claimant
to undertake new business development. Getting the Claimant out of the business was far
from the situation up until the information started to develop after 1st March 2013.
22. Mrs Duckworth explained that there had been no written statements taken from Sarah
Jones or James Robbins because the Respondent took the view that the problem was an
internal matter and these were important contacts in the eGaming sector and the
company felt it was better not to ask them to make formal statements. Additionally, the
Claimant agreed that he had spoken to them. Mrs Duckworth' explanation tallies with the
reluctance to come forward that she says was expressed to her by Sarah Jones.
23. Mrs Duckworth confirmed that she could not recall precisely when the replacement was
taken on for the Claimant except that it was in 2014. Initially, Russell Cowin became more
involved with eGaming and then the company brought in a new Commercial Manager
who had changed the structure.
24. No new business had resulted from the trip to Australia.
25. In answer to the Claimant, Mrs Duckworth said that although never formally documented,
the way the relationship developed between the Claimant and Ben Caley, in a general
sense, the Claimant was Ben's line Manager as they worked together day-to-day.
26. Mr Patrick Benjamin Aaron Caley (known as Ben Caley) testified that he was a Key
Account Manager eGaming employed by the Respondent. He attended the ICE eGaming
Conference in London from 6th to 8th February 2013. With him were lisa Duckworth and
the Claimant. At the event, he said that they met with a number of businesses but that
they also met socially including with businesses called Sunset Slots, Grand Prive,
GameOn and Stargaze Media.
27. In his presence but when Lisa Duckworth was not present, the Claimant discussed
leaving his employment and setting up on his own. Mr Caley had been aware of the plan
but had not expected such discussions to take place during ICE with third parties. This
was during some social drinks with clients present. As part of these discussions, the
Claimant was asking these business contacts if they would consider using him as a
supplier. The witness had known of this plan of the Claimant to establish his own
competing business before going to ICE but he could not recall the date on which he first
became aware of the Claimant's intentions. He said that he did not have prior knowledge
that the Claimant would speak to clients in London.
28. Mr Caley, under questioning by the Claimant explained that in paragraph 6 of his report /
statement dated 8th April 2013, the conversation that had taken place had hinted that
major clients would be leaving the Post Office and although it was not directly said by the
Claimant that you will lose your job if you stay, Mr Caley testified that the suggestion was
that his better choice and chance would be to leave and join him.
29. Mr Caley said that in a discussion at some time before ICE, the Claimant spoke to him
about leaving the Respondent's employment and joining him. These were the key points:
•
That lain Ramsay would be leaving to join the Claimant
•
The new job would be at Words and Spaces
•
He would receive 10% of any profits on top of his salary.
•
There would be a better working environment with no uniforms needed.
•
The salary would be the same.
30. This evidence came in cross-examination by the Claimant and was not further explored
and in particular there was no challenge to the naming of Words and Spaces. (In opening
the Tribunal, the Chairman had helped the Claimant by explaining the need for him to
challenge during cross-examination any important evidence with which he did not agree.
The Claimant having not challenged on this point later went on in his own evidence to
deny any discussion with Ben Caley in which Words and Spaces was mentioned in the
context of future employment).
31. The witness was questioned regarding a conversation following ICE where the outcome'
debrief was debated according to Mr Caley. The Claimant takes a different view of this
conversation. Mr Caley, after realising that matters had developed very seriously beyond
the pre-ICE discussions by involvement with important third-party business contacts
involved with the Respondent, was nervous about the situation and the Claimant's
expressed plans.
32. He said that the Claimant thought that the discussions with others in London consistent
with him setting up in competition had gone well and he mentioned the conversation the
Claimant had had with William from a business called Genesys. Mr Caley knew nothing of
the conversation but he saw the two people discussing something and he knew that from
what he saw over dinner that the Claimant and William had a close relationship. Post-ICE,
Mr Caley testified that the Claimant had told him that he had proposed his idea to William
and that he had said that William's reaction was positive. It was evident that the Claimant
denied any such conversation either with William or with Ben Caley. The witness
indicated that what he thought might originally have been flippant ideas had changed
once he had come to know that there was an intention to leave and by hearing the way
the Claimant was discussing his plans with third parties.
33. The witness was concerned about the effect on his own position if the Claimant left taking
some major clients with him and he feared he might even lose his job, this fear coming
from what the Claimant had said to him could happen. The Claimant enquired why if he
was concerned at what he had heard at ICE, he not gone to Usa Duckworth about it. The
witness said that this came from his respect for Greg Hawke. Mr Caley, in his written
statement of eighth April said this:
"Previous to approaching the clients after the restaurant I was unaware of how serious his
idea was until he engaged them in conversation. He would ask the above parties
questions such as, if I were to create my own business and do this providing the same
service and costs would you consider uSing me as a supplier? They asked if I would be
joining him, and in the situation I was in, I said yes as I thought it would cause problems
with Greg as my line manager at work if I did not appease him." The clients referred to
were Sunset Slots and Stargaze Media.
34. The Claimant challenged the suggestion that he was the line manager. The witness
confirmed that the Claimant was not his line manager as such but that the Claimant had
indicated before ICE to him that he would be line manager. In any event, he ws training
up Mr Caley and was his mentor and "someone I looked up to."
35. The Claimant challenged Ben Caley's evidence of what was said after the group left the
restaurant on the Thursday night during ICE when they had carried on drinking. There is
no dispute that considerable alcohol had probably been consumed during the course of
the day and evening. Mr Caley said that he was becoming stressed out about the
discussions that night because leaving the company was no longer flippant and it was
now being spoken about in a work environment and his hope was that the Claimant would
not leave and set up in competition.
36. Mr Caley was cross-examined about why he had been in touch with the Claimant when
he was off sick if he was so stressed out about the way their relationship was developing
because of the alleged intent to set up a competing business. Mr Caley said that he
contacted him because of respect for him and because his father was ill. He admitted
texting him and visiting him but it was only to make sure that the Claimant was okay and
to express concern about his Dad. The witness emphasised that he was not suggesting
that the Claimant as a person was causing him stress - it was the situation th ere was
causing him stress and he said that there had been one discussion after ICE in the next
office to the CEO and the Claimant had called the witness into that room and in there
were discussing the outcome of ICE - concerning the Claimant's plans.
37. This is where the Claimant had allegedly said according to this witness that he had got a
positive response from the discussions with the third parties in London but this witness
had said that he had not thought the reaction was so positive. He said the reaction from
Nitesh of Sunset Slots was in point and that the idea had not been received well. Mr
Caley said that the conversation ended because he said that we can't talk about this at
work. This was particularly because he felt uncomfortable about the talk taking place so
close to the office of the CEO.
38. After ICE, and on returning to the office, the witness testified that the Claimant spoke to
him again about leaving "and taking me with him". This may have been during the
conversation referred to that took place next door to the CEO's office. However, Mr Caley,
whatever he said to the Claimant, concluded that he had got across to Mr Hawke that he
was concerned about the plan because he says that the Claimant never raised the
subject with him again. The Claimant at that time was due to go to Australia and he told
this witness that it was his intention to talk to an Australian client about his plans but
whether he did or not, the witness could not say.
39. Mr Caley was called into the office of Mrs Duckworth in April and asked about events that
took place at ICE. He discussed the position with her and he then typed up his notes and
th
submitted that as a statement of 8
April. This formed part of Mrs Duckworth's
investigation before interviewing the Claimant
40. Since the Claimant had left the employment, Mr Caley had come across him on two brief
occasions but there was no discussion of anything material to this claim.
41. Mr Peter Crocker testified that he worked for the Respondent as Operations Director.
Having been alerted to the outcome of the investigation as made by Mrs Duckworth, he
took the view that the conduct could constitute Gross Misconduct if found to be true. He
wrote to the claimant on 23rd April requesting that he attend for interview on 30th April.
The Claimant was told that he had the opportunity to go through all the evidence that had
been uncovered and to provide any further explanation or mitigating circumstances.
42. Mr Crocker testified that he had wanted to establish first-hand the Claimant's version of
events and to draw his own conclusions including forming an opinion as to whether Mr
Hawke had used his position inappropriately and whether his actions constituted Gross
Misconduct - and if it did what disciplinary action should then follow.
43. Mr Crocker then conducted this diSCiplinary hearing. At Tab 22 are the notes of it kept by
Ms Dixon. The Claimant should, in advance of this hearing, have had the notes prepared
by Mrs Duckworth of 15th April. This error was corrected to the extent that Mr Cropper
handed the note to the Claimant at the start of the interview. He read it. It was not
minuted by Ms Dixon but the Claimant challenged the witness on the basis that he said at
the meeting that he did not agree with everything in the notes.
44. Mr Cropper was satisfied that the declaration of intent made by the Claimant whilst
attending ICE in London was corroborated by more than one person and that the
Claimant had repeated his intentions at lunchtime the following day - again to more than
one person. Mr Cropper was satisfied that the Claimant had in mind servicing the
eGaming sector using knowledge he had gained while working with the Respondent. He
accepts that the Claimant suggested in his defence that this was a pipedream but
because of evidence that the Claimant had discussed the position with work colleagues
as well, Mr Cropper's concern was that this was more than a dream because there was
active planning. The Claimant did not dispute that he had spoken with work colleagues
about starting his own business but again sought to deflect the seriousness of the
approaches as nothing close to a real intent to set up in competition or to take employees
if he could.
45. Mr Cropper pointed out the seriousness of this conduct within the context of the
Respondent's vital business in the eGaming sector. He stressed that the business of
supplying direct mailing services was strategically significant and a great deal of time,
money and effort had gone into developing revenue streams to help make up for the
decline in revenues from traditional postal activities.
46. After conSidering what the Claimant told him (in particular suggesting that setting up his
own business was his pipedream) and taking into account the other written reports and
submissions supplied to him, the witness concluded that the Claimant had in fact been
involved with discussions with suppliers, customers and with his work colleagues about
setting up his own business with the intent to provide similar services that he was being
employed to sell on behalf of his employer He concluded that this was abuse of a
position of trust constituting Gross Misconduct. He concluded that this warranted
summary dismissal.
47. Because of the loss of faith in the Claimant's integrity he concluded that summary
dismissal was the correct decision and he wrote to the Claimant informing them of this on
the 2nd May 2013 (Tab 24). The termination letter did not make clear that the summary
dismissal was to take effect that day.
48. The Claimant appealed in writing alleging that the sanction was disproportionate. He
contended that the evidence was hearsay without corroboration. He challenged the
evidence given by Ben Caley. He complained about procedural irregularities under the
Code
49. Mr David Callow confirmed that he was the Finance Director employed by the
Respondent. He held the appeal hearing, the first date of which was put back at the
request of the Claimant and it was eventually heard on 3rd June 2013. Prior to the
hearing, Mr Catlow reviewed the file and correspondence and spoke to Russell Cowin
and to Ben Caley. This was to confirm the details of the statements that they had made.
50. At the meeting, Mr Keith Green took the minutes. Mr Catlow wanted to give the Claimant
every opportunity to give his version of events and to expand upon the reasons for his
appeal. Mr Catlow confirmed that at this meeting, the Claimant did not introduce any new
evidence nor did he explain why he felt the sanction imposed was harsh save insofar that
this was the opinion of his legal advisors. At the hearing, the Claimant declined to go into
any further detail about how his employers had failed to comply with its own disciplinary
code. He indicated that in his view his appeal letter spoke for itself.
51. Mr Catlow was not impressed with the merits of the Claimant's appeal and upheld the
decision of summary dismissal. He told the Tribunal that he had taken into account all the
pOints made in the appeal document and the statements made by the Claimant about
what he had brought to the business including his unblemished record with the
Respondent but he still thought that the sanction was not too harsh.
52. Following the end of the appeal hearing, Mr Catlow had taken into account the case
materials and the evidence before concluding to uphold the outcome of the original
disciplinary process and his grounds for making this decision are documented at Tab 39.
The outcome of the appeal hearing was communicated to the Claimant on 4th June.
53. Mr Keith Green testified that he was employed by the Respondent as Human Resources
Manager. He confirmed that the Claimant had commenced employment on 17th March
2009 as a Business Relationship Executive with a grade of Clerical Officer 4. This was a
temporary contract but employment became permanent from 1st December 2010. His
role was
reassessed and
changed
to
Senior Business Relationship
Executive
commencing 1st June 2011 and re-graded to management level. Mr Green confirmed
under cross-examination that there had been no previous disciplinary process involving
the Claimant and no prior complaints regarding his attitude.
54. Mr Green confirmed Mr Hawke had not seen Mrs Duckworth's statemenU notes of 15
th
April before the Disciplinary Hearing held by Mr Cropper but Mr Green said that the
Claimant had his own tape-recording of that anyway. His understanding, though he was
not present at that meeting, was that it had been offered to the Claimant by Mr Cropper at
the start of the meeting and Mr Cropper was then re-called to the witness-box and he
confirmed that he had given the Claimant the note of the meeting (Tab 19). Mr Cropper
also suggested at this point that there was nothing specific in the Code that indicated that
this document should have been provided to the Claimant in advance. However
Paragraph 4 of the Code was put to him and he seemed to accept that he was wrong on
this but was not pressed by the Claimant any further.
55. Mr Green first became aware of the issues now confronting the Tribunal when his
colleague Mrs Duckworth spoke to him about her concerns from what she had heard from
business contacts. He understood that the Claimant had apparently been approaching
clients of the business and speaking to colleagues with regard to leaving and starting up
his own business and potentially taking clients and their business with them. On the
Claimant's return to the office following sickness he suggested to Mrs Duckworth that
because some of the allegations had come from work colleagues, a suspension would be
justified. This is provided for in the disciplinary procedures in the Staff Manual (Tab 52).
th
56. There was some confusion about the status of the next meeting (15 April) as to whether
it was investigatory or disciplinary. Mr Green had categorised it as disciplinary in an email on 10th April but Mrs Duckworth by her e-mail of 11th April 2013 had earlier
confirmed that it was investigatory. Mr Green accepts his error and that the point was
corrected.
57. Following the investigation by Mrs Duckworth, including a full interview with the Claimant,
the disciplinary hearing was fixed for 30th April and chaired by Mr Cropper with Ms Dixon
as the HR representative attending to take notes and observe. He confirmed that after
that investigation and due deliberation, the Claimant was summarily dismissed for gross
misconduct by letter dated 2
0d
May 2013.
58. On 8th May 2013, the Claimant appealed this decision and this appeal was fixed for
hearing on 3rd June 2013 to be conducted by the Finance Director, Mr David Catlow. Mr
Green attended this hearing. The Claimant opted to attend without a colleague. Mr Green
produced both his manuscript and typed records of that meeting at Tab 40.
59. Mr Green formed the impression that because of the demeanour and lack of contribution
by the Claimant throughout the appeal hearing, he was merely going through the motions
to "tick a box". The Claimant asked how Mr Green could conclude that the Claimant was
merely going through the motions at the Appeal and in particular how many investigations
he had been involved in. The witness initially replied that he could not say but he then
suggested when pressed that it was not many a year - maybe two or three.
60. Mr Green also mentioned that besides the main issue before the Tribunal, there had been
issues regarding recovery of expenses from the Claimant, eventually returned by him
months later on 26th September 2013. Although the Claimant was also asked to provide
the pin numbers for his mobile phone that he had used whilst employed, he never
responded.
61. As to the Claimant's pay position, he testified as follows:
•
Normal pay was £2,740.40 gross, £2,190.73 net per month. Final payment in May
2013 total £2,740.40 gross, £2,227.97p net, this latter payment being higher than
normal due to sick pay being made which is not subject to tax or national
insurance
•
The payment described above was in fact incorrect and should have been for two
days for 1" and 2"' May only. The Claimant had a leave entitlement of 26 days
per annum plus Bank and Isle of Man Post Office recognised holidays amounting
to 10 days and so was entitled to 5.5 days annual leave.
•
Due to an unfortunate and significant error, the employer had made an
overpayment of £2,077.40 gross, £1580.70 p net. In other words, payment should
have been calculated to the date the Respondent claims was the date of
summary dismissal plus holiday.
The Initial Investigation
62. This section is important because, as is explained in regard to the law below, the Tribunal
is not permitted to make a decision based on what it might do when faced with the
identical set of facts but rather must determine whether what the Respondent did was
reasonable. Accordingly, what follows is a summary of the state of knowledge that
determined the final decision to dismiss summarily for gross misconduct.
63. Mrs Duckworth's manuscript notes dated 1st March 2013 were produced at Tab 6. These
recorded a discussion with Sarah Jones referred to above as a director of GameOn
Marketing. It seems clear that Ms Jones took the conversation that she had had at ICE
with the Claimant seriously because it was her that initiated the discussion once Mrs
Duckworth had raised the fact that the Claimant was on a trip to Australia. This (according
to Mrs Duckworth) had prompted a change of her! the company's position of keeping out
of the issues to telling all of what she claimed happened during ICE.
64. At one of the social events after-hours during ICE, Ms Jones told Mrs Duckworth that the
Claimant had told those present that he would be bringing in £3 million to the business
next year but he wouldn't be seeing a penny of it. This was because he didn't receive a
bonus. He announced that he was going to set up on his own taking both Ben Caley and
lain Ramsey with him and they were all going to resign en masse. (This is corroborated
by the subsequent unsolicited phone-call from Philip Superamonion, Head of Operations
for Stargaze Media who had been informed by two of his directors that the Claimant was
leaving the Respondent and his concern was whether the Respondent would be able to
carry on looking after his company's business).
65. As reported to Mrs Duckworth, the Claimant told Ms Jones he already had a backer and
money was no issue and they were going to work towards ISO 27001. He represented
that his intent was to do everything that the Respondent business was doing except for
the Royal Mail bit but if he could not do that, then he would become a broker for the Isle
of Man Post Office. He had told Ms Jones that he had been speaking to suppliers 011island and had already approached Mark Fredrick from Stargaze Media and someone
called Denish from Grand Prive.
66. Mrs Duckworth was told by Ms Jones that the conversation had taken place at about 5
AM and that everyone "was very drunk." Ms Jones told Mrs Duckworth that Ben Caley
had been present but didn't say anything but that she, Sarah Jones, had brought over
James Robbins (from her company) to listen to what Greg Hawke was saying.
67. The following morning (same day), Ms Jones told Mrs Duckworth that she had received a
text message from the Claimant asking her to meet him and they arranged to meet for
lunch which was also attended by James Robbins, Commercial Manager for GameOn
Marketing. Ben Caley also attended. At lunchtime at a Pizza Express, the Claimant had
reiterated what he had said during the night of Thursday/Friday. Ms Jones has not given a
witness statement and was not called to give evidence. She told Mrs Duckworth that on
the following day on Saturday evening she had a conversation with Mark Fredrick and
Denish both of whom confirmed that the Claimant had been speaking to them about his
plans.
68. Mrs Duckworth followed up this information on Monday 4th March by telephone by
making enquiries of James Robbins at GameOn. She learned from Mr Robbins that
although he had not heard the first part of the conversation carried on by Greg Hawke
with the others during the night of Thursday/Friday during ICE, Greg had said in his
presence that he had a backer and was going to leave his employers and go out on his
own with money for the venture being no issue.
69. According to James Robbins, the Claimant said that he had already been speaking to
some customers about it - one of whom was Mark Fredricks from Stargaze Media. Mr
Robbins confirmed that "everyone was very drunk" but he also confirmed that he was at
the lunch on Friday when the Claimant reiterated what he had said the previous evening.
Ben Caley was present but did not say a word.
70. Mrs Duckworth later the same day telephoned Sarah Jones to confirm the accuracy of the
conversation from the previous Friday which she did. Ms Jones did not add any new
information.
71. On Wednesday 27th March, Mrs Duckworth received an e-mail from Mr Phillip
Superamonion as mentioned above. He wanted to speak to her. She telephoned and he
told her that he had heard from two directors at his company (Mark and Errol) that "Greg
was leaving and asked me if we were still able to fulfil their work for them."
72. Following talking to her, Ben Caley wrote a note to Mrs Duckworth dated 8th April 2013
In it, he documented at least some of the history of what the Claimant had said or done to
his knowledge. He was aware that the Claimant had approached representatives of
Sunset Slots and Stargaze Media in his presence on the Thursday night of ICE in London
after a meal at a Thai restaurant Mr Caley confirmed that having heard the Claimant
speaking to these people, he then realised that what he had at first thought (before going
to ICE) might only be fantasy chat without substance by the Claimant, was not that
73. When asked by these clients of the Respondent during these discussions in London
whether Ben was joining the Claimant, Ben Caley said that he would but explained this by
saying that he did not want to say otherwise because Greg Hawke was his line manager.
(This status issue had been fully explored in the evidence). Later but still during the ICE
trip, Mr Caley approached the Claimant when he was talking to James Robbins beside a
bar and he was asked to move away and to leave them alone. It was obvious to him that
this was a private conversation.
74. At the lunch on the Friday in London, the Claimant and Ben Caley spoke after the others
had gone. It was evident to Mr Caley that Sarah Jones had wanted to be part of the
Claimant's new business venture but the Claimant indicated that he did not want her
involved and that he had been simply testing the waters. It seems that this did not mean
that the Claimant was abandoning his idea of setting up his business because on another
occasion after returning from London, the Claimant had a further discussion with Ben
Caley about someone else he had approached. It was also apparent to Ben Caley from
what Greg Hawke said that the Claimant was expecting lain Ramsey to leave the
Respondent and to join him as well as Ben himself. Ben was also told by the Claimant
that he had got hold of a copy of his contract and now knew his own period of notice
would be three months and that Ben's was one month.
75. In this note, Ben Caley also informed Mrs Duckworth that there had been ongoing
discussions in situations when the Claimant had raised the intended plans but that he,
following advice from his mother, wanted to disengage and yet at the same time had to
maintain a relationship with his line manager. Mr Caley said in the note: "The predicament
I found myself in was effectively my line manager advising me of his intentions and the
implications of being that if I didn't support him, my position in the Post Office would be
eradicated and that he was offering me a position for when this happened."
76. lain Ramsay signed a brief statement dated 8th April 2013 confirming that the Claimant
had mentioned to him on a number of occasions that it would be achievable to replicate
the work done for eGaming clients of the Respondent at an independent company. These
conversations were always very light-hearted and Mr Ramsay told Mrs Duckworth that he
had never felt from these conversations that there was any intent to pursue the
speculative observations.
77. Mr Russell Cowin, another employee, also gave a statement dated 8th April. He said: "On
one or two occasions over recent months, Greg has suggested that the eGaming work
completed by IOMPO could be undertaken by a separate company, outside of IOMPO. I
always took such comments to be tongue in cheek and I even agreed with the implication
that often it was the bureaucracy and/or the size of IOMPO which seemed to make work
more difficult or challenging than it needed to be. I never took any these comments as
sincere suggestions of taking work from IOMPO nor did I consider them to have been with
any underlying malice."
78. As part of Mrs Duckworth's investigation, the Claimant himself provided a statement
dated 11th April 2013. This set out his comments regarding the evidence that Mrs
Duckworth had gathered and which had been provided to him.
79. The Claimant, with some support from Ben Caley's evidence, throws doubt on the
reliability of the evidence of Sarah Jones. It is evident that in the discussions during the
Thursday /Friday night, there was discussion about Ms Jones wanting to participate in the
business and that there was some type of row regarding this. According to the Claimant's
statement Sarah Jones turned quite aggressive that night and allegedly said "that if I
didn't allow her into any future new business venture, that she would tarnish my name in
any manner possible this seems to be the case in point here. Refer to Ben's statement
also on this point."
80. The Claimant contends that even at lunchtime on Friday, the attendees were still
inebriated. So far as concerns two witnesses who said that the Claimant had said that he
had a backer for his new business, the Claimant denies that he ever said that.
81. The Claimant contends that he never told anyone that he was leaving IOMPO but that
must have been the impression that he created to cause a senior figure at Stargaze
Media to telephone Usa Duckworth expressing concern as to whether with the Claimant
leaving, they could still handle his company's business.
82. The Claimant regards most of Ben Caley's statement as untrue. He denies that he is the
line manager. He regards Ben as a colleague and Russell Cowin as the line manager to
them both.
83. As to the private conversation at the bar with James Robbins, the Claimant contends this
was about something entirely different than him setting up a business. He did not indicate
what the conversation was about. The Claimant considers that Ben Caley has effectively
made up conversations "so that I lose my position and he can take over my role."
84. On Monday 15th April, Mrs Duckworth, having read the Claimant's version of events, held
the requested meeting with him and he asked to tape the conversation which was agreed.
At this meeting, the Claimant admitted that he had spoken to Mark Fredricks about setting
up his own business to compete with 10MPO and he also confirmed that he had repeated
this to Sarah Jones, James Robbins and Ben Caley at the lunch on Friday. However he
said that it was all a dream of his to do something like that in the future. When pushed,
the Claimant also confirmed that he had spoken to Neil from Sunset Slots who had been
present when he had spoken to Mark. He could not explain why Sarah Jones and James
Robbins had been clear that he had said that he had a backer and that he would work
towards ISO 27001 accreditation. He simply denied that he had said this
85. Mrs Duckworth was not satisfied with the Claimant's explanation of why Ben had been
excluded from the conversation at the bar between the Claimant and James Robbins. The
Claimant continued with his stance that the new business venture was just a dream
despite the fact that he had spoken about it to at least seven different people and had
discussed his period of notice with Ben Caley having requested his contract.
86. It was consequent upon the conclusion of this discussion that Mrs Duckworth felt that the
gravity of the situation was such that the matter should be referred to Mr Peter Cropper
and that disciplinary interview was then set up for 30th April 2013 with Mr Peter Cropper.
By letter dated 23rd April, the Claimant was invited to the interview based on the premise
that Mrs Duckworth had concluded that there was a case for the Claimant to answer for
inappropriate use of his position and a loss of confidence and faith in his integrity.
87. The minuted meeting with Mr Cropper and then subsequently the hearing of the appeal
against Mr Cropper's decision upholding the opinion of Mrs Duckworth add very little to
the substance of the Claimant's position as set out in his written version of events with the
Claimant repeating his position that there was no firm plan, just loose piped reams and
drunk talk. The appeal against Mr Cropper's decision contended that the sanction was
disproportionate to the alleged offences and was not justified by the evidence.
Additionally, there were procedural shortcomings.
88. The Claimant pointed out that there were no first-hand statements from, for example
customers and suppliers that were allegedly targeted. He considers that they should have
been asked to provide statements.
89. The Claimant also challenged the procedural aspects pursuant to the Code. The grounds
for these are set out at Tab 28.
90. The Respondent very properly released the statements from lain Ramsay and Russell
Cowin even although the these did not fully support the Claimant's apparent intentions
before going to ICE. They also released the statement from Zoe Thompson who was the
PA to Mike Kelly, the CEO.
91. The evidence set out above summarises, according to the Respondent, the information
available on which it based its decision to dismiss the Claimant for gross misconduct.
The Claimant's Evidence
92. The Claimant confirmed that he had commenced employment on 17th March 2009. It is
disputed as to the final date of employment The Claimant contends that this was 4th
June 2013. The company indicated that it was 2nd May 2013.
93. After attending at the ICE event in London, the Claimant was on the island before then
travelling to Australia. On his return from there, he was very stressed out and was signedoff for 2 weeks so that he returned to work on Friday 5th April. His written statement
confirmed that his ill-health was pressure of work and his father's ill-health.
th
94. The Claimant saw Mrs Duckworth on 5
April and told her that he had previously
considered handing in his notice due to pressures but having taken time out, he was
totally committed to IOMPO. He was then shown the Code and the statements as noted
down by Mrs Duckworth and told that he would be suspended on full pay. At this time, he
was not told verbally or in writing why he was being suspended or the severity of the case
and nor was he asked to put forward a written or verbal statement
95. After his return home and on reading the Code, he challenged the procedural aspects
asking Mrs Duckworth to provide in writing the case he had to meet and details of the
alleged offence. He was then provided with an e-mail confirming the interview to take
place on 15th April and attached was a copy of the letter that had been sent to him in the
post The Claimant considers that matters had been unduly delayed since Sarah Jones
had spoken to Mrs Duckworth on 1st March.
96. Evidence to be used at the interview on 15th April was not provided seven days in
advance pursuant to the procedure laid down in the Code. He Challenges whether it was
proper for Mrs Duckworth to carry out the interview on 15th April as he contends this
conflicts with the Code. He provided his employers with his own statement dated the 11th
April. He accepts that the Respondent then changed its position regarding the status of
the meeting on 15th April now categorising it as part of the investigation stage to go
through the statement of 11th April. Nowhere in his statement (or indeed in his written
evidence to the Tribunal) is there any suggestion that his position has been prejudiced by
any procedural lapses of which he complains - he merely points out the shortcomings as
he saw them.
97. The Claimant does not accept that Mrs Duckworth's notes are fair and balanced.
However, although he had been permitted to tape the discussion with Mrs Duckworth, he
has not, despite request, been able to produce the recorded evidence to support this
criticism.
98. The Claimant again, in paragraph 18 of his statement, criticises the failure to follow the
Code by Mr Crocker. Subsequently there was the hearing of the appeal by Mr Catlow
which led to the termination of his employment but in a manner which left the precise date
of termination unclear. It was not until 6th July that the Claimant received a letter from Mr
Green advising that the Respondent's position was that the date of dismissal had been
2nd May 2013, the appeal heard on 3rd June having been dismissed.
99. The Claimant points to ill-will on the part of Sarah Jones in approaching Mrs Duckworth something he attributes to his refusal to cut her in on the new business he was discussing
setting up.
100. At paragraph 33, Mr Hawke summarised his case in this way:
"It is my contention that from the very start Mrs Duckworth conspired to get rid of me with
the help of one of my colleagues who wanted my role. The original statements that were
provided by Mrs Duckworth were based on hearsay and not supported. The IOMPO failed
to comply with the Code throughout the disciplinary proceedings and the sanction is
wholly unreasonable based on the evidence and my exemplary performance throughout
my employment. This has caused be (sic) a great deal of worry, stress and upset and I
feel that the IOMPO have victimised me and dismissed me unfairly."
101. The Claimant confirmed that he did not claim any state benefits and he was fortunate
quickly to be offered a position in a business operated by a friend. Now, he is Business
Development Executive at the same business called Words and Spaces where he started
on 10th June 2013. His role involves development and customer retention in print media
sales. The monthly gross pay is £2,500 and after National Insurance and tax, the net
take-home pay is £2,024. He is therefore less well-paid than he was before.
102. At paragraph 36, he calculates how he is also due holiday pay.
103. Mr Hawke was then cross-examined. He said that the conversation with Mark Fredrick
had not been prompted by him but had been prompted by Mark Fredrick. It had been
started at a hotel in London. The Claimant contended that the discussion was about him
possibly going to set up in the future. Neal Copins from Sunset Slots was present. The
witness was not sure who else was privy to the discussions because this was the bar. He
thought there were no others in earshot at the time of the discussion with Mark.
104. He explained that after ICE, on the Thursday evening, there have been a dinner with
clients that had been arranged and gradually this was a crossover to a social occasion
where there could be talk about steaks, wine, golf etc. Any conversation with Mark had
been only about 2 minutes. The Claimant tried to down play that he was still representing
the company at this time when questioned by Mr Helfrich for the Respondent but later in
answer to a question from the Chairman, he confirmed that the late-night drinking had
been on expenses so that he was still being paid for by the company.
105. The Claimant indicated that he felt that he was compensated well for his work. There had
been no bonus. His frustration was not with money but with the way that IMS handled
business once it was won.
106. The Claimant admitted talking to Sarah Jones who had overheard his conversation with
Mark. He said she could get quite threatening saying that if he was setting up, she wanted
30% or she would make sure that he never worked in the business again. In his opinion,
she had had a lot to drink. In contradiction to the evidence from Sarah Jones via Mrs
Duckworth, the Claimant contended that there was a call from Sarah Jones suggesting
lunch (the reverse of what she had said). There was a meeting at the Pizza Express and
she apologised to her overnight behaviour. He told her there was no business to be
discussed. It was a 20 min lunch only.
107. The Claimant had no recollection of any discussion regarding ISO standards as recorded
at Tab 12. He reiterated that he said to Sarah Jones that there was nothing for her to
pursue. He did not agree with Ben's version of the London discussions.
108. The Claimant denied that he had spoken in terms to Russell Cowin or lain Ramsey. At
Tab 13, lain Ramsey had referred to having had several conversations with the Claimant
but his version is that lain Ramsey may have overheard him speaking in the office out of
frustration and had heard what he had said about the company but he was disputing that
there were conversations regarding his intention - which they regarded as having taken
place though still regarding his plans as embryonic or fanciful. The Claimant conceded
that he could well have said in their presence that the clients could be better served
elsewhere. However there was nothing concrete ever said that he was setting up.
109. The Claimant denied that in the meeting next door to Mike Kelly's office he had been
discussing with Ben how matters had gone in London regarding his intent to leave and to
set up in opposition. That was not the purpose of the discussion but rather it was an
appraisal of what had happened at ICE regarding the Respondent's business.
110. The Claimant denied that during the lunch at Pizza Express, he had been testing the
waters and that at that time he still had no intention of creating a competitive business.
111. Mr Helfrich asked him why then he had asked for a copy of his contract. Had it not been
so that he could know what his period of notice was? The Claimant said this was just
chance timing and that his girlfriend who looked after paperwork administration was doing
housekeeping issues regarding his documentation and the contract was missing. The
request for a copy of the contract came after ICE. Mr Helfrich therefore asked how it was
that Ben Caley knew that he had got hold of his contract. Ben Caley's evidence is
contained at Tab 12 (second page). Mr Caley's statement said: "Greg had advised me
that he had gained a copy of his contract and that hs notice would be three months, he
also advised me that I only require one month's notice and then he would want me to
join." Mr Caley then went on to say that he then discussed this with his mother because of
his concern.
112. There was no explanation from the Claimant about how and why Mr Caley was being
involved in any conversation about a contract that was nothing directly to do with him and
particularly being told that the Claimant's period of notice was three months.
113. The Claimant was asked about his relationship with Ben Caley and whether there was
perhaps an element of hero worship. The Claimant suggested that maybe Ben Caley
thought that he could fit into his shoes. He thought there was a conspiracy with Mrs
Duckworth and the reason he put forward for this was that perhaps Ben had been jealous
of his travel. The Claimant gave no explanation as to why Mrs Duckworth would conspire
against him.
114. The Claimant confirmed that he was now employed by Words and Spaces. He confirmed
that Ben Caley had referred to that company. He said that he does print sales and brings
business to them.
115. As to the statement of Zoe Thompson, the Claimant said that she sat behind him in the
office and after ICE he had chatted with her about what had happened and, although he
was never asked this question, he volunteered that the conversation had not been
designed "to cover his tracks".
116. On return from Australia, he denied that his absence from work was to do at all with his
fathers illness. It was purely work-related, contradicting his written evidence. Mr Helfrich
enquired why he had volunteered that he had emphasised his commitment to the
company on 5th April and he said that it was because he had thought of leaving.
117. As to the Appeal hearing on 3rd June, the Claimant was asked why he did not engage in
it which was the evidence of Mr Green. The Claimant said that he did not believe that the
company was going to turn over the decision and that he was fighting a brick wall.
118. He confirmed he had had the letter with the summary dismissal dated 2nd May but in his
view that was not the date of termination, it would be the date of the appeal decision. This
was something that he had discussed with someone called Mark Worth, a senior
manager.
119. In answer to questions from the Chairman, the Claimant was referred to Tab 24 which
contained the letter of 2
nd
May terminating the employment and the duplicate had been
signed by him stating that he had received the letter and "understood the contents". If that
was the case, why was he saying now he did not back then understand the date of
dismissal? The Claimant had no satisfactory explanation except that he must have
ignored that point. He was then asked what the date of dismissal would have been had he
decided not to appeal and he accepted that it would have been the date of the letter
giving summary dismissal.
120. The Claimant denied to the Chairman that he had ever spoken to anyone at Words and
Spaces about any intent to set up in business or joining that company despite the
evidence of Ben Caley (but he had known the company because the evidence of Mrs
Duckworth was that if need be, the Respondent contracted work to that business).
121. In answer to Mrs Hammond, the Claimant said that he could not be 100% sure if the job
that he obtained at Words and Spaces had been advertised for open recruitment. He said
that he knew "Mark" socially and through business and this was how he had got
employment there so quickly (10th June) after termination and the loss of the appeal.
Facts Found on the Evidence
122. The Tribunal cannot accept on the evidence that there was some type of conspiracy
between Mrs Lisa Duckworth and Mr Ben Caley whereby she was intent on forcing him
out supported by Mr Caley who wanted self-advancement. While the Claimant suggests a
motive for why Ben Caley might make a statement that damages the Claimant's position
(self-advancement in his employment), nowhere does he give any basis as to why Mrs
Duckworth would conspire with Ben Caley as alleged.
123. If the Claimant was as successful as he believed (boasting that he would be delivering £3
million of business in the following year and warning Ben Caley that his job would be at
risk if he the Claimant took the business), it seems inconceivable that Mrs Duckworth
would concoct or fabricate or otherwise set up a situation to force out such a senior,
successful and significant an employee as the Claimant. For this suggestion to be
credible, the Claimant had to be in a position to put forward a solid reason why Mrs
Duckworth would conspire against him.
124. The Claimant admitted to Mrs Duckworth on his return after his Australian trip and
sickness that he had indeed been considering leaving the company. It was an odd point
to volunteer without being asked unless he was aware that there may have been talk at
work about what he had said at and around the time of ICE about leaving.
125. The Claimant also volunteered in evidence that his conversation with Zoe Thompson was
not an occasion when he was "covering his tracks" after ICE. That statement is doubtful
but there is no finding of fact on it. It was a strange remark to volunteer to the Tribunal
when it had not been suggested to him that he had been trying to do that.
126. In all cases where there is an issue as between the evidence of Ben Caley and that of the
Claimant, the Tribunal prefers the evidence of Mr Caley. He impressed the Tribunal as a
young man making his way in the company and being mentored by a forceful and
probably charismatic figure in the shape of the Claimant. The Claimant makes out that Mr
Caley has invented his evidence because he was ambitious enough to want to take the
Claimant's job and was conspiring with Mrs Duckworth as a director, to ensure that the
Claimant was fired to advance his own career.
127. Firstly, the experience of Mr Caley of only a few months in eGaming would not have
made him suitable for such advancement either in his own judgement or in that of his
employers who in fact brought in someone else. Secondly, the Tribunal was impressed
with the general demeanour of Mr Caley. The Tribunal accepts that by becoming an
insider/confidante of the Claimant, what had seemed fairly harmless discussions (albeit
very detailed) pre-ICE became reality when there were open discussions with third
parties. The Tribunal accepts that this was stressful to him. Plainly, he was torn between
loyalty to his employer and loyalty to a friend who he respected and liked.
128. It was abundantly clear to the Tribunal from the evidence and from seeing Ben Caley and
the Claimant, that Ben Caley had been somewhat in awe of the Claimant as well as being
a friend to him. The words hero-worship were used during the hearing and although they
may not be completely apposite, they do give some indication of a very friendly seniorjunior relationship where Ben Caley was unlikely readily to step outside his relationship
with the Claimant. No question, Ben was very much the junior to the very self-confident
and self-assured Claimant.
129. The Tribunal accepts that it was reasonable for him not to go to his superiors on a
voluntary basis to blow the whistle on what the Claimant was doing. To do so is a brave
decision against someone who was in a superior position and almost in Line Manager
status. The Claimant could subsequently have done considerable damage to Mr Caley's
career within the Post Office had his story to management backfired and not been proven.
Additionally, he did not want to behave like that to a friend. Given his demeanour in the
witness box, the Tribunal accept that he could readily have become increasingly stressed
out by the position and even more so when he thought from the Claimant's warning that
there was some good reason to believe that his job within the Post Office might be at risk
if the Claimant were to steal the business on which he was working. He was in an
unenviable position.
130. As mentioned above, the Tribunal do not accept that the Claimant asked for his contract
from his employers because of housekeeping reasons. The evidence of Ben Caley, as
volunteered in his statement, showed that it was the Claimant who told him that he had
got hold of the contract and that he had to give three months' notice. Being discredited on
this pOint is a clear example as to why the Tribunal prefer the evidence of Ben Caley. This
is also an example of why, despite the loyalty shown by Ben Caley to the Claimant, when
cornered, the Claimant showed a ruthless streak with no mercy to Mr Caley who he has
been at pains throughout to paint as a liar and a conspirator - who was lying to advance
his own career.
131. What was said on various dates before ICE as to intent mayor may not have been
sufficiently planned to warrant a clear intent to set up a business by poaching customers,
suppliers and staff. The Tribunal does not have to make a finding of fact on this. What
was said to Russell Cowin and lain Russell was probably not enough but what was said
to Mr Caley was very detailed before ICE. The Tribunal is satisfied that the Claimant had
a developing intent to try to set up on his own dating back to before ICE and ws minded to
implement his plans so long as he got the right answers from staff and then from the key
customers etc who would make the business fly. That is why, after ICE, he was so keen
to see his contract and to make sure what his period of notice was.
132. The terms of the offer pre-ICE to Ben Caley referring to Words and Spaces in particular
are consistent with the reality of what the Claimant actually did as soon as his appeal was
lost - namely Join that business. Mr Caley was not challenged on this point by the
Claimant when questioning him and as the Chairman had specifically helped the Claimant
at the outset by warning him to be sure during cross-examination to challenge major
points with which he disagreed, of all the points in this case, this was certainly very
prominent for challenge if the Claimant disagreed with it. It should also be said that the
Tribunal were impressed with the remarkable ability of the Claimant to look after himself
during the proceedings whether in submissions or cross-examination where his questions
were succinct and apposite. The Tribunal can therefore only conclude that what Mr Caley
said about the terms of the future job for him was true. This again is corroboration for the
fact when the Claimant denies that he had ever said that he had a backer, he probably
had this company in mind. It seems clear that there was some tie-in that had been
discussed by the Claimant directly or indirectly connected with Words and Spaces and
that this was one of the pieces in the jigsaw that the Claimant had been carefully putting
together to fulfil his ambitious desire to be freed of the bureaucracy of which he
complained within the Respondent organisation.
133. The Tribunal accepts the hearsay evidence given by Mrs Duckworth who impressed the
Tribunal as a straightforward witness. This covered the evidence of her conversations
with Sarah Jones, James Robbins and Phillip Superamonion. Although not definitive,
additional weight as to the intent of the Claimant came from the hearsay signed evidence
gathered from Russell Cowin and lain Ramsay when seen in the context of all the other
evidence.
134. As to the evidence being hearsay, no question, it would have been better if the
Respondent had got signed statements from every witness from outside the company and
even better if they had been called to be cross-examined but it is understandable that in a
commercial venture, it is an uncomfortable and awkward position to involve customers
and business contacts in sorting out internal dirty washing. It was therefore reasonable for
Mrs Duckworth who knew all the persons speaking to her, to rely upon what they were
saying, particularly when there was a generally consistent message reaching her from
different companies and persons. All roads pointed to the Claimant having a clear intent
to leave the company once he had put the key ingredients in place including staffing,
suppliers, customers and backers.
135. Even if the Claimant were not immediately ready to implement his plans, this was far
more than a pipedream of simply wishing that one day he could be his own boss. By
talking in the way that he did on more than one occasion with several key
customers/suppliers and staff, he was eroding the valued arrangements established
between his employers and these other businesses. He was also speaking out of turn and
breaching confidentiality when saying that he would be bringing in £3 million but getting
no financial benefit in consequence.
136. As to the alleged ill-will on the part of Sarah Jones in approaching Mrs Duckworth attributed to his refusal to cut her in on the new business he was discussing setting up,
the Claimant cannot have it both ways. The Tribunal do not know whether Ms Jones was
malevolent in spilling the beans on the Claimant's plans. The Tribunal has evidence,
besides from Ms Jones, that the discussions obviously did take place and there
seemingly was some type of late night row between the Claimant and Ms Jones about her
involvement and wanting a cut - and the evidence confirms a very advanced plan to quit
and to set up with a financial backer - sufficient for there to be a falling-out about sharing
profits in some way with Ms Jones. The Claimant's only explanation regarding a comment
confirmed by two witnesses that he had a backer was to deny it The Tribunal is satisfied
that the remark was said and it was consistent with Ben Caley being told that Words and
Spaces would be where he would work if he followed the Claimant
137. From the point of view of the facts as available to Mrs Duckworth and throughout all the
investigation and diSCiplinary process, the evidence was solid and consistent about the
Claimant's plans and intent Admissions made by the Claimant assisted the Respondent
when investigating. Whether deep down Ms Jones was malevolent or not, it does not
make her corroborated evidence such that the Respondent could not rely on it
138. The Tribunal is satisfied that the Claimant (a) had a real intent to leave and (b) would
have wanted to take Ben Caley and lain Ramsay with him if he could persuade them and
that (c) he had claimed to third parties that he had backing so that money was no problem
and he had a plan to get accreditation. That lain Ramsay did not confirm a job offer as
such is not conclusive because the Tribunal accept from Mr Caley that he was told that
lain Ramsay was going to follow the Claimant That may have been exaggeration on the
part of the Claimant to pressurise Ben Caley but the Claimant cannot have it both ways.
139. The Tribunal does not consider the plan to leave to have been either a pipedream or
drunken chat There were too many conversations on different occasions for the
Claimant's plans to be dismissed that easily. It is evident from the evidence taken as a
whole that this was more, much more than loose talk fired by alcohol consumed to
excess. No doubt alcohol loosened tongues during ICE and played a part but the totality
of the evidence suggests a clear intention to try to set up in business with colleagues and
to poach valued customers from the Respondent in order to fulfil his dream of having his
own business.
140. After ICE, the Claimant continued to mention his plan by confirming to Mr Caley his intent
to approach an Australian customer of the Respondent as part of his plan to advance his
personal ambitions during this trip paid for by his employers. This was dismissed by the
Claimant as being a fabrication by Ben Caley. The Tribunal prefer the evidence of Ben
Caley on this. This was gross misconduct by someone who was paid for his loyalty but
who had become a fifth-COlumnist There was no independent evidence of what was said
in Australia but the work hoped for by the Respondent did not materialise.
141. The Tribunal is entitled to take into account hearsay evidence and to give it such weight
as seems appropriate in all the circumstances. This evidence taken in the round carried
due weight In law, the Tribunal, as explained below, has to consider the facts as known
to the employer during the material dates up until dismissal and the Tribunal is satisfied
that there was a fair and reasonable attempt to understand the facts and where
statements were obtained by the Respondent which did not particularly help the company
position, nevertheless they were still disclosed to the Claimant. They were all taken into
account
142. In answer as to why he chose to say very little at the appeal hearing, the Claimant said
that he regarded the appeal as kicking a brick wall. That may be his true belief but equally
by 3rd June, the Claimant may have already had an alternative position lined up that he
was starting in one week's time. He too may have been going through the motions
because he did not want his job back but there is no finding of fact on that Whatever the
reason, if the Claimant had or could have obtained even hearsay evidence that
contradicted what the Respondent was contending, someone as astute as the Claimant
could have mustered such evidence at that time but he never did produce anything. He
too had good relationships with these customers! suppliers and he seemingly made no
attempt to gef them to take his side. Neither did he produce notes transcribed from the
recording to contradict the version of events at the meeting on 15th April.
The Law
143. The burden of proof is on the Respondent to prove that the dismissal was fair under s113
of the Employment Act 2006. All the leading authorities cited and considered are cases
determined in the United Kingdom. Many have stood the test of time and have become
corner-stones in the law and the way it should be applied. The law regarding unfair
dismissal, so far as material to the present Claimant's claim on the issue of whether or not
the dismissal was unfair, is the same in the United Kingdom. In countless cases on the
Isle of Man, reliance has been placed on these United Kingdom decisions. Accordingly, in
reaching conclusions on how to apply Manx law to these facts, the Tribunal has no
hesitation in placing reliance on United Kingdom case law.
144. The Respondent must show the reason, or if more than one, the main reason for
dismissal and that it was a reason of a kind such as to justify dismissing the Claimant
from the position that the Claimant held. The reason may be, inter alia, conduct and this is
what the Respondent relied upon.
145. Under s113 (3), the Tribunal takes into account the size and administrative resources of
the Respondent in determining the reasonableness and deciding whether the conduct
was sufficient reason for dismissal in accordance with equity and the substantial merits of
the case.
146.
Thus the issues are:
a)
Did the conduct of the Claimant justify the dismissal based on gross misconduct and
b)
Was the Disciplinary Process and investigation fair and
c)
Was the decision to dismiss for gross misconduct reasonable and in the band of
reasonable responses?
d)
If the dismissal is found to be unfair, then under s142(6), did the Claimant by his
conduct up to dismissal contribute to the situation in which case, the Tribunal may
reduce the compensation so far as is just and equitable.
i.
e)
The reason relied on by the Respondent was classified as gross misconduct in the
Code but just because this classification entitles the Respondent to dismiss without
notice does not mean that such a decision is necessarily fair in all the circumstances.
Application of the Law to the Facts
Did the conduct of the Claimant justify the dismissal based on gross misconduct
147. The Tribunal accepts that an employer is entitled to expect loyalty and support from
employees - and to be able to rely on them. Trust is an integral part of the duty of an
employee and the Respondent, justifiably, lost trust in the Claimant The Respondent has
cited a number of decisions which support the principle of the implied obligations of an
employee, let alone any express duties agreed between the parties. These can be
summarised as follows:
•
An implied term of mutual trust and confidence.
In this respect, if the conduct of the employee is likely to destroy trust and
confidence, the employer does not have to prove an intention to destroy it
•
A duty of fidelity - and this duty extends during off-duty time.
•
A duty not to compete. If an employee has the idea of setting up in competition
after leaving, that would not of itself be likely to amount to a breach of the duty.
However, if the employee goes further and talks as if he has approached other
staff members and asserted that they are joining him and that he has also spoken
to customers, then an employee can be found to have broken the bond of mutual
trust and confidence.
•
A duty not to solicit customers of the employer. Thus an employee who talks to
customers regarding them following him based on his expressed intention to set
up in business can be found to have broken the implied term of mutual trust and
confidence, let alone any express contractual terms. A duty not to entice
employees. As with the duty not to compete, it is a question of degree as to
whether acts of an employee in this respect are sufficiently preparatory only as
not to constitute a breach.
148. The Tribunal is satisfied based on the facts found that the Claimant's behaviour amounted
to gross misconduct He was paid for his ability and for his loyalty but his persistently
expressed intent to try to set up in competition and to do so using other employees as he
hoped and by stealing customers, as he discussed and had hoped, was so serious as to
be gross misconduct.
Was the decision to dismiss for gross misconduct reasonable and in the band of
reasonable responses?
149. The law is clear that a Tribunal must not put its own viewpoint on how it would have dealt
with the situation in which the Claimant's conduct had placed the Respondent. The test in
law is that the Tribunal has to decide whether the decision which the Respondent took is
within a band of reasonable responses - see Iceland Frozen Foods Lld v Jones (1982)
IRLR439. The Tribunal has concluded that it was.
150. An employer must be able to trust the team members and the Claimant had demonstrated
that he was not playing for their team but was now building his own - even to the extent
of being paid to go to Australia to develop the Respondent's business while secretly
behind their back plotting to try to win for himself the work of the Respondent's customer.
Such behaviour alone, let alone the other misconduct by touting other customers and
staff, would have justified a response of summary dismissal. This employee could no
longer be trusted to support his employer. The evidence established a real and serious
intent to act in a manner to the detriment of the business that the Respondent had built
up.
Was the Disciplinary Process and investigation fair?
151. At issue is whether the Respondent's approach and application of its own Code was
flawed so that the dismissal was unfair.
The Code
152. The Respondent is a large employer with an HR expertise and ought to have been able to
follow the process laid down in its Code without any procedural slips. In some situations,
a failure to follow such a Code can so taint and distort the due process that the dismissal
is unfair. In this case, investigation and disciplinary stumbled form one error to another.
The process smacked of unacceptable confusion about each step that had to be taken
and about what had to be made clear to the Claimant.
153. The Claimant has not pointed to a single way in which his position in the investigation had
been prejudiced by failure to follow the procedural rule-book.
154. On balance, the Tribunal has concluded that the errors were more consistent with ones
which occur in small businesses. This is unseemly for a major employer like the
Respondent.
This employer ought not to have got the basics wrong particularly when
they have someone like Mr Green, a senior figure, in charge of HR. These errors were
mainly corrected along the way and by the time the issues reached the appeal, everything
concerning the process was in good shape. However, in the absence of any serious flaws
in the quality of the facts found and relied upon by the Respondent and with no prejudice
established or seriously suggested by the Claimant in the disciplinary process, the series
of procedural shortcomings did not destroy the investigation.
155. In consequence, theprocess was unfair in law. The decision in the case of Sartor v P&O
European Ferries (Felixstowe) Lld (1992) IRLR 271 is clear authority from the Court of
Appeal for the proposition that the type of small-print niceties to which the Claimant
pointed (and certainly if there is no prejudice) do not render a dismissal unfair if there is
an appeal process so that in the end, there is a fair hearing. That is precisely the case
here. The Claimant had every chance to consider all the evidence and to have someone
with him and to have his say - mainly along the way but certainly in the appeal hearing.
156. The Tribunal concludes that the procedural shortcomings did not render the process
unfair.
Claimant's Own Contribution
157. The Respondent argued for a decision based as above - that there was no unfair
dismissal either on the merits of dismissing for gross misconduct or on procedural
shortcomings if found by the Tribunal - but as a fall-back, the argument was that if the
dismissal were unfair, the Claimant was 100% to blame for the position in which he found
himself. There is no need for the Tribunal to make any such final ruling but in the event
that there is an appeal agamst this decision, for the record it should be recorded that the
Tribunal would have regarded the misconduct of the Claimant as known to the
Respondent when it made its decision as being gross and that the sole reason for the
position in which the Claimant ended up was his own fault.
158. The misconduct of the Claimant was such that the decision of the employer to regard it as
gross misconduct with summary dismissal was within the band of reasonable responses
that a cross-section of employers would also have taken on these facts. There was no
contribution from the employer to this situation. The entire blame for the Claimant being
dismissed rested on him for determining to try to poach fellow employees and to steal
customers if he could - all conduct which is not permissible from a loyal employee.
159. It is no wonder that the employer was seriously concerned at the damage that the
Claimant had done and seemingly had hoped to do - so that for the future, they could no
longer rely on his integrity. To pay for the Claimant to travel to Australia at a heavy cost
and to do so when that employee had expressed his intent to use the trip to steal the
customer is ample of itself to amount to gross misconduct. Unfortunately, the employer
did not find that out before the trip took place.
160. Had the dismissal been found to be unfair, then the Tribunal can take into account
conduct of the Claimant until dismissal and must reduce compensation to the extent it is
just and equitable. In determining what is just and equitable by way of a reduction, the
leading authority of Hollier v Plysu Limited (1983) IRLR260 EAT ruled that rather than
becoming bogged down in minutiae, a Tribunal should regard the contribution on a quasitariff basis of wholly to blame -100% and reducing down to 50% for equal blame and
down to 25% for a slight contribution.
161. In these circumstances the contribution of the Claimant to the decision to dismiss was
100% and therefore had the decision on any ground been found to be unfair, the basic
and compensatory awards would have been reduced 100%. The Claimant was the sole
author of his own misfortune.
The Law considered
•
Employment Act 2006
•
Section 113: (general provision relating to fairness of dismissal)
•
Section 133
•
Section 140 - 143: (amount of compensation)
•
The Employment Tribunal Rules 2008
Cases Considered
•
AG v Blake (1998) 1 All ER 833
•
BM Lld v Davies (UK EAT 0047/11
•
Boys & Girls Welfare Society v McDonald (1996) IRLR 129 EAT
•
British Home Stores Lld v Burchell (1978) IRLR 379
•
Chubb Fire Security Lld v Harper (1983)IRLR 311
•
Delaney v Staples 1991 ICR 331 CA?
•
Faccenda Chicken Lld v Fowler (1986) 1 All ER 617
•
Foley v Post Office and HSBC Bank v Madden (2000) ICR 1283
•
Hivac Lld v Park Royal Scientific Instruments Lld (1946) Ch 169
•
Hollier v Plysu Limited (1983) IRLR260 EAT
•
Hudson v Department of Health (1st May 2013) (Deemster Corlett)
•
Iceland frozen Foods Lld v Jones (1983) ICR 17
•
Laughton & Hawley v 8app Industrial Supplies Limited (1986) IRLR 245
•
Linfood Cash & Carry Lld v Thomson (1989) IRLR 235
•
London Ambulance Service NHS Trust v Small (2009) IRLR 563
•
Malik & Anor v BCCI SA (in compulsory Liquidation) (1998) AC20
•
Orr v Milton Keynes Council (2011) EWCA Civ 62
•
Polkey v AE Day ton Services Limited (1988) ICR142 H L?
•
Ranson v Customer Systems plc (2012) EWCA Civ 841
•
Sainsburys Supermarkets Lld v Hitt (2003) IRLR 23 CA
•
Sartor v P&O European Ferries (Felixstowe) Lld (1992) IRLR 271
•
Varma v North Cheshire Hospitals NHS Trust UK EATI 0178/07
•
W Devis & Sons Lld v Atkins (1977) IRLR 314
•
Wessex Dairies Lld v Smith (1935) 2 KB 80
Decision
162. The Claimant was not unfairly dismissed.
w~
.. .. ..
Signed:
........
.
Mr Douglas Stewart - Chairman
Date:
.... 17'h July 2014 ..
Sent to parties on
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Entered in Register
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Clerk to the Tribunal
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