Mr Kenny Olatunji v TC Facilities Management Limited — 2021

Mr Kenny Olatunji worked for TC Facilities Management Limited as an In-Store Cleaning Manager and was dismissed without notice on 1 April 2020 following an incident on 27 March 2020 at the Tesco Lakeside Extra store. He brought claims for unfair dismissal and wrongful dismissal. The tribunal heard evidence over 8 and 9 December 2020 and found that the dismissal arose from allegations of verbal and threatening behaviour towards management.

On the unfair dismissal claim, the tribunal accepted that the dismissing manager genuinely believed the Claimant had committed misconduct, namely verbal aggression and threatening behaviour towards Mr Mendonca on 27 March 2020. It held that the Respondent had carried out as much investigation as was reasonable in the circumstances, including taking accounts from the three people involved and, on appeal, following up the Claimant’s allegations about conspiracy and housekeeping sheets. The tribunal also held that there were reasonable grounds for preferring the Respondent’s evidence, and that any procedural shortcomings at the disciplinary stage were cured on appeal by Mr Stevens’ independent review and further witness interviews.

Applying s.98(4) ERA 1996 and the Burchell guidance, the tribunal concluded that summary dismissal was within the band of reasonable responses. It noted that the misconduct was serious, that the Respondent’s policy treated aggression, threats, verbal abuse and intimidation as gross misconduct, and that another employer might have chosen a lesser sanction in light of the Claimant’s long service and the provoking circumstances, but that this did not make dismissal unfair. The unfair dismissal claim was therefore dismissed.

For wrongful dismissal, the tribunal made a narrower factual finding than the Respondent had advanced. It did not find that the Claimant shouted and screamed or made a threatening comment, and it accepted that he did not intend to act aggressively. However, it found that he lost his temper, raised his voice, accused Mr Mendonca of lying, called him an idiot and told him to fuck off. The tribunal held that this conduct was sufficiently grave to undermine the trust and confidence inherent in the employment relationship, amounting to gross misconduct under the contract. The wrongful dismissal claim was therefore also dismissed, and no monetary award was made.