Mr S Anwar v Pizza Cake Ayr Ltd T/a Domino’s Pizza: 4106830/2020
| Judgment Date | 23 April 2021 |
| Citation | 4106830/2020 |
| Published date | 07 July 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No: 4106830/2020 (V)
Held in Glasgow by CVP on 12, 13 and 14 April 2021
Employment Judge Murphy (sitting alone)
Mr S Anwar Claimant
In Person
Pizza Cake Ayr Ltd t/a Domino’s Pizza Respondent
Represented by
Mr S Robinson -
Solicitor
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
The judgment of the Tribunal is that the claim of unfair dismissal does not succeed and is
dismissed.
REASONS
Introduction
1. This final hearing took place remotely by video conferencing. The parties did not object
to this format. A face-to-face hearing was not held because of the Covid 19 pandemic
and issues were capable of determination by a remote hearing.
2. The claimant complained of constructive unfair dismissal. The respondent denied that
it had fundamentally breached the claimant’s contract or alternatively that, if it had done
so, the claimant had waived or affirmed the breach. In the ET3, the respondent averred
that, if the claimant was constructively dismissed, the respondent had a fair reason for
4106830/2020 (V) Page 2
dismissal, namely some other substantial reason. However, the respondent’s
representative clarified at the outset of the hearing that the respondent no longer relied
upon any ‘SOSR’ defense.
3. The claimant gave evidence on his own behalf and led evidence from Michael McElroy
(MM), who worked for the respondent as a driver and in their Ayr store between 2016
and 2020.
4. The respondent led evidence from a number of employees as follows:
a. Stephen Cope (SC) former Assistant Manager at the respondent’s Ayr store and
current Store Manager at their Prestwick store;
b. Raza Hafiz (RH), Store Manager at the respondent’s store in Ayr;
c. Denis Smith (DC), Regional Manager for the respondent; and
d. Eddie Stimpson (ES), Operations Manager for the respondent.
5. Evidence was taken orally from all witnesses. A joint set of productions was lodged
running to 195 pages, to which approximately ten further pages were added by parties
during the course of the hearing.
Issue to be determined
6. The issues to be determined in this case were:
1) Did the following acts or omissions of the respondent individually or
cumulatively breach the so-called implied term of trust and confidence (more
fully defined at paras 90 and 91 below and referred to interchangeably in this
judgment as the ‘trust and confidence term’ or the ‘Malik term’)?
i. A telephone call by Raza Haviz on or about 19 June 2020 when Mr Hafiz
is alleged to have told the Claimant, on the instruction of higher
management, to either quit his job with Just Eat or be dismissed by the
respondent;
4106830/2020 (V) Page 3
ii. Alleged aggressive conduct by David Cameron, Area Manager, during
the disciplinary investigation meeting with the claimant on 14 July 2020;
iii. The findings and conclusions in Mr Hafiz’s investigation report, sent to
the claimant on 28 July 2020 that the claimant had behaved in a
fraudulent manner and breached the respondent’s trust;
iv. The upholding of the allegations against the claimant by the
respondent’s Chris Maxfield following a disciplinary hearing on 7 August
2020 and the issue of a final written warning on 12 August 2020;
v. The alleged failure by Chris Maxfield in so doing to access Government
Guidance on the furlough scheme rules and to take into account the
claimant’s alleged concerns about Covid security in the Ayr store;
vi. The alleged failure by the respondent to provide an unreserved apology
to the claimant following his successful appeal against the final written
warning and his subsequent email dated 3 September 2020 to ES;
vii. The failure by ES to provide any further apology following receipt of the
claimant’s email dated 9 September 2020.
7. If so, was the claimant constructively unfairly dismissed pursuant to section 95(1)(c) of
the Employment Rights Act 1996 (“ERA”)?
8. If so, should an award of compensation be made? The claimant confirmed during his
evidence that he had no losses arising from the termination of his employment, and as
such, he sought only a basic award and compensation for loss of statutory rights.
Findings in Fact
9. The following facts were found to be proved.
10. The respondent is a franchisee, operating 18 pizza take-away and delivery outlets,
including one in Ayr. Domino’s Pizza Group (“DPG”) is the franchisor.
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