Mr J Kavanagh v Strata Products Limited — 2020

Mr Kavanagh was dismissed summarily on 8 November 2018 for alleged gross misconduct. Applying section 98 ERA 1996 and the authorities it cited, including Burchell, Iceland Frozen Foods, Foley and Sainsbury's v Hitt, the tribunal accepted that Strata had a conduct reason for dismissal and a reasonable basis for believing misconduct had occurred. It relied on multiple staff complaints, the SMETA audit, and Mr Clark's report, and it rejected Mr Kavanagh's case that the dismissal was really prompted by his complaints about health and safety or investment.

The tribunal found that Mr Kavanagh had acted aggressively and used swear words towards colleagues on 5 June 2018, 6 June 2018 and 4 July 2018. It accepted evidence that his conduct had left staff upset, and it treated the SMETA audit as referring to him. It also found that he had been suffering from stress and anxiety from June 2018, but held that this did not explain away the misconduct or make the employer's reaction unreasonable.

The unfair dismissal claim succeeded because the tribunal held that Strata's investigation was inadequate and the procedure unfair. It found there was no objective basis for withholding the witness statements on the basis of fear of reprisals, that proper inquiries into the anonymous complaints were not carried out, and that Mr Ilsen had effectively reached conclusions before the disciplinary hearing and then chaired that hearing himself. The appeal heard by Ms Jones was described as detailed and thorough, but it did not cure the earlier unfairness.

On remedy-stage issues addressed in the liability judgment, the tribunal found there was an 80% chance Mr Kavanagh would have been dismissed fairly in any event and said compensation should be reduced by 60% for contributory fault. On the contractual issue, however, the tribunal held that Mr Kavanagh's conduct amounted to gross misconduct, that it fundamentally undermined trust and confidence, and that Strata had not affirmed the contract before dismissal. No final monetary award is recorded in the text supplied here.