Mr R Sciortino v Lemac Engineering UK Ltd: 4102302/2017
| Judgment Date | 05 March 2018 |
| Subject Matter | Unfair Dismissal |
| Date | 05 March 2018 |
| Citation | 4102302/2017 |
| Published date | 14 February 2019 |
| Court | Employment Tribunal |
E.T. Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4102302/2017
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Held in Glasgow on 19, 20, 21, 22 and 23 February 2018
Employment Judge: Ms M Robison
Members Mr A Ross
Mr H Boyd
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Mr R Sciortino Claimant
In person
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Lemac Engineering UK Ltd Respondent
Represented by
Mrs M Peckham
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Solicitor
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
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The Employment Tribunal finds that the claimant was unfairly dismissed in terms of
section 94(1) of the Employment Rights Act 1996. All other claims are dismissed.
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REASONS
Introduction
1. The claimant lodged an ET1 claiming unfair dismissal; dismissal and
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detriment as a result of having made a protected disclosure; failure to pay
redundancy pay; notice pay; holiday pay and arrears of pay in respect of
unpaid overtime and unpaid expenses (fuel). The respondent resisted all of
the claims, arguing that the claimant had been dismissed for reasons of
misconduct.
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Case No. 4102302/2017
2. At a hearing which took place over five days on 19, 20, 21, 22 and 23
February 2018, the claimant appeared in person, and the respondent was
represented by Mrs P Peckham, solicitor.
3. In this case, case management preliminary hearings had taken place on 6
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October and 10 November 2017, and various orders had been issued. The
respondent’s application to amend to include an alternative claim that the
claimant had been dismissed for “some other substantial reason”, that is a
break-down of trust and confidence, was considered in chambers and
allowed.
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4. Notwithstanding previous case management orders, at the outset, there was
an initial discussion whether the list of issues which had been prepared
properly reflected the outstanding issues between the parties. With regard to
monetary claims, the claimant stated that he was in addition claiming
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mileage in respect of one journey on 19 June and also holiday pay. These
were in fact included in his schedule of loss. He confirmed that he was not
claiming failure to furnish written particulars, although that too was included
in the schedule of loss.
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5. By the end of the hearing, the claimant confirmed that he was no longer
claiming holiday pay (having accepted the respondent’s evidence in that
regard) and nor was he claiming unpaid overtime. The only outstanding
monetary claim therefore was the claim for the mileage (apart from
redundancy pay and notice pay, which were dealt with as aspects of the
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unfair dismissal claim).
6. With regard to the question of reinstatement, the claimant initially advised
that he was unsure and asked for more time to consider that. After the
second day, he confirmed that his desire was to return to work for the
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respondent, although not in the same role. In his final written submissions,
he advised that he was withdrawing that request.
7. During the course of the hearing, the claimant sought to lodge additional
documents, which were allowed on the basis that the respondent did not
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object, except to the extent that the supplementary bundle contained
duplicates, and in relation to one document, to which the respondent did
object, discussed below.
8. The claimant alleged that the respondent had failed to include in the bundle
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all of the documents which he had forwarded to them and upon which he
said that he was relying. It transpired that the claimant had forwarded to the
respondent a “zip” file which contained a number of large files, including
Case No. 4102302/2017
photographs. We accepted Mrs Peckham’s explanation that a great deal of
time had been spent by her colleagues seeking to ensure that all of the files
in the zip file were included in the bundle. Mrs Peckham explained that was
why she had not objected to some of the documents which had made their
way into the bundle, the relevancy of which she questioned, and which we
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were of the view were irrelevant to the issues for determination. It transpired
that there was one photograph in particular, which had not been lodged
which the claimant sought to have included in the bundle. This was a racist
image which the claimant claimed that Mr Coleman had sent to him at some
stage. Mrs Peckham objected on the grounds that the photograph was not
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relevant to the issues to be determined, and in any event its provenance
was not clear, because it was not accompanied by a covering e-mail or any
other document linking it with Mr Coleman, who denied sending it. After
recessing to consider our position, we refused to allow that document for the
reason that it was not relevant to the issues to be determined by the
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Tribunal.
9. There was a very large number of documents lodged in this case. In addition
to the “tribunal bundle” (referred to here as main bundle or MB (which
contained 615 pages)) and the supplementary bundle (referred to above),
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there was a “mitigation bundle”, containing a schedule and counter-schedule
of loss and documents to support the claimant’s mitigation argument; as well
as an ancillary bundle which contained the list of issues, joint statement of
agreed facts and chronology, claimant’s amendment, essential reading for
PIDA claim and respondent’s skeleton argument. We found the main bundle
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in particular to be unwieldy and the documents not easy to find our way
around, especially the e-mail chains which were copied out of order.
10. In addition, there was a bundle containing witness statements, which had
been ordered during the case management preliminary hearings.
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11. We should say that we recognised that the claimant was required to
represent himself, and that he was clearly out of his depth. We therefore
allowed him additional opportunities to consider his position, as appropriate.
For example, we adjourned after he had read out his witness statement to
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allow him to consider overnight whether he had anything further to add.
Where appropriate we asked relevant questions of the witnesses to ensure
equality of arms, and we allowed other additional adjournments as
requested.
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Findings in fact
12. The Tribunal finds the following relevant facts admitted or proved.
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