Unauthorised absence

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Dear Sir/Madam

Would you please place before REJ Parkin

I thank you for your letter and apologies of the 31st of January

Referring to the letters of REJ Parkin dated the 31st Jan 2012 and
of the 5th of December from VP Walker both providing the reasons for the
transfer of
the case to Bristol.
If it was practical for Vice President Walker to write the reasons for
transfer then it stands to reason it was practical to consider all of the
requests of the letter dated 3rd Dec 2012 including the wish to appeal the
decision.

However; All of these points are a distraction from the real nub of the case
or cases.

The respondents representatives are intent on muddying the waters with
diversions, disruption and case law.

The bare facts of the cases are as follows.

The claimant was on annual leave (a legal entitlement)

Due to extraordinary circumstances involving air travel there was a delay
(industrial action)

The claimant was provided with the first available return flight home by the
airline (a legal requirement)

The claimant returned to work and was summarily charged with gross
misconduct becoming ill as a result (Industrial accident)

From a European Court ruling yesterday

Under extraordinary circumstances, as it stands to reason an airline has a
duty of care to passengers , the same reasoning easily applies to an
employer who's employees for the same reason cannot get to work.

The employer has a legal obligation, a duty of care to provide annual leave
to employees.

If the annual leave is disrupted as it was, beyond the employees and
employers control it stands to reason the employer also has a duty to care.

I refer to my submission of the 2nd January 2013

The facts are the claimant was before the Owen Tribunal all the facts were
available but not explored by that tribunal why should they be? Not every
stone should be turned.

The obsolete case of Henderson v Henderson has been raised in proceedings
170 year old case law..??

I would like to raise more recent cases from 1914 - 1918 - 306 British and
commonwealth troops were executed for desertion.. They were pardoned in
2008.

Yours Faithfully

Douglas Gardiner

Published in: Business, Career
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Unauthorised absence

  1. 1. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 1 of 9 BETWEEN: MR DOUGLAS GARDINER CLAIMANT AND EXSTO UK LTD & OTHERS RESPONDENTS UNAUTHORISED ABSENCE – GROSS MISCONDUCT PHR 8th Jan 2013 The claimant is a 48 year old male, a British and European citizen with roots from the whole of the British Isles. The claimant has lived in Scotland, the North East, East Anglia and the South West. The claimant has travelled all over Europe, to the Middle East and to the Americas. In full time employment since leaving school has worked hourly paid shift work and since 1992 as a salaried office employee, as a trusted employee he has never been the subject of any disciplinary procedures at work. From the day of birth he and his ancestors have been raised with obedience to what in his country and most of the civilised world construes law and order, to be honest, respect, obey and to place trust and confidence in all people, especially those within positions of knowledge, control, authority including those who purportedly enforce the powers of law and order. Despite this upbringing, the claimant is in a soul destroying conflict with authority. Having been assured by the respondents that their belief is: “No other documents or evidence exists. As these proceedings are duplicates of a claim that has already been heard, disclosure occurred in early 2011. The only document that related to this discussion is the undated letter which the claimant has attached to his 7th December email to the tribunal. The claim that the claimant was not paid for the days he did not work was dealt with at the Hearing in September 2011 and the tribunal’s judgment states there was no deduction from salary. The claimant appears to be seeking to have this issue reheard. Nevertheless, no other document exists in relation to this issue.” And that in some or part of these proceedings will re-use witness statements.
  2. 2. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 2 of 9 Please find attached the facts of the case up to the 16th of December 2010 as now established by the claimant. On the Saturday 4th December 2010 unavoidable delayed in Spain by industrial action. The Spanish government had declared a state of emergency until the middle of January 2011. The claimant took the flight that was offered under European law, on the 8th December 2010 an unavoidable delay of four days. 1) Immediately after booking the return flight, the claimant attempted to call the General Manger of his employer Exsto UK, Mr Baxevanidis to inform him of the delay. However, upon checking his private phone the claimant found no contact number for Mr Baxevanidis, the claimant called another company contact placing his trust and confidence in Mr Bezard who said he would pass on messages to Mr Baxevanidis by Sunday 5th December. To avoid unauthorised costs and confusion to the claimant and company, only one call or message was necessary. Had the claimant failed to contact Mr Bezard on the company phone which Mr Bezard did not have to answer, the claimant would have called the office promptly at 8:30am on Monday the 6th of December 2010 if that had been the case he would certainly have had to leave a message with another employee as Mr Baxevanidis had formed the habit of arriving late at 9:00am 2) On Monday 6th December Mr Bezard passed on the messages, albeit a day later than had been anticipated or the claimant knew of. The claimants’ messages, trust and confidence were accepted by Mr Baxevanidis. It is crystal clear the claimant had not deliberately absented himself.
  3. 3. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 3 of 9 3) Messages had been sent and accepted. It is clearly written in later correspondence that the company would accept many forms of messages from absent employees e-mails, texts, messages via other employees, but against all these odds and without his knowledge the claimants message would turn from accepted to rejected. 4) Why did Mr Baxevanidis not call the claimant? i) A day later than the claimant expected, Mr Baxevanidis at the office, had heard and accepted the clear messages of the claimant from Mr Bezard, stating that the claimant, due to exceptional circumstances could not make it to the office, nor did the claimant have the company mobile number of Mr Baxevanidis and that these messages were to be passed on Sunday the 5th December. It would have been reasonable for the claimant to expect a return call on Sunday the 5th of December either from Mr Bezard or Mr Baxevanidis. ii) Despite a clear message to the contrary which he had accepted, Mr Baxevanidis said that the claimant had or should have known Mr Baxevanidis company telephone number, Mr Baxevanidis said he had called and texted the claimant many times before. The claimant was contactable at all times, Mr Baxevanidis was aware that the claimant had a mobile phone, the claimants private mobile phone number was at the top of the company telephone list, of which everybody in the office had a copy to hand and Mr Baxevanidis as he stated had used that number of the claimant many times before.
  4. 4. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 4 of 9 iii) Despite accepting the message. Mr Baxevanidis also said later he expected a call in line with the company absence procedure. It is crystal clear the claimant was unaware, had forgotten, never used or was in the dark on how the procedure currently applied. At the time of the issue in 2007 the procedure was challenged by the claimant, Mr Baxevanidis said the procedure did not apply to reliable office staff and that Mr Baxevanidis and Mr King were targeting two unreliable employees, after these employees rapid departure from employment with the company and the appointment of a new receptionist Ms Millward who answered all incoming calls and took messages. Later the majority of the workforce was made redundant, the manufacturing facility closed and premises moved, so the procedure had never applied to the claimant. New employees were certainly unaware of any such procedure; since the disposal of the difficult employees, simple timely messages to the company office were all that had ever been required. To resurrect this procedure under these exceptional circumstances is in the mind of the claimant without shadow of doubt, discrimination. The procedure certainly need not apply as the claimants messages had been sent and accepted. Judge Owen later changed direction and ruled the memorandum need not apply. iv) When asked under oath by Dr Tirohl why he didn’t call the claimant on the Monday the 6th ? Mr Baxevanidis provided another a reason, in contravention of WRT “I didn’t want to disturb his holiday”
  5. 5. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 5 of 9 6. Had Mr Baxevanidis bothered to call the claimant as Mr Carew from the office did, he would have found the claimant was as always a willing employee capable of working remotely. Over a five year period of ill health involving continued treatment for a complex perianal fistula the claimant had worked several times from home for Exsto and had established trust, in Spain with his knowledge, pens, paper, and access to a fax and by travelling 15km to a café he could reliably access the internet, albeit at high cost recoverable from the company. If considered necessary at expense to the company the claimant could have sought alternative return routes. 7. In order to obtain an earlier flight or work remotely the claimant would have incurred high expenses that would have to be reimbursed by the company. Without contact with Mr Torres the listed company Director the claimant did not have the money or authority to raise these expenses nor would have Mr Baxevanidis. 8. On the 9th of December Mr Penelon, Mr Baxevanidiss immediate manager was unaware of the situation and had not been consulted on what action to take if any, for when asked the question during a strictly confidential telephone call by the claimant “have you heard anything” Mr Penelon was bewildered and answered “no”.
  6. 6. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 6 of 9 9. It is an industry standard found in many publications related to absence management, for any reasonable manager with concern over an absence, first and foremost to attempt to call the absent employee for an explanation or if in any doubt what to do, call a senior manager for advice. The facts to hand were; an employee was unavoidably delayed in Spain without a contact number the messages had been received and accepted a day later than the employee was aware. A willing employee in difficulties such as the claimant would have eagerly answered the call or if missed, called back without hesitation. A senior manager in a position of authority could have advised, updated, requested, ordered or authorised the employees including the manager what actions or expenses to incur. This did not happen. What happened was the claimants’ message was firstly accepted and then secondly ignored and perceived as a lie and the claimant without knowledge was falsely charged with unauthorised absence or gross misconduct. Reasonable employers use unauthorised absence procedures to address the difficulty of repeated unauthorised absence by evasive employees. To call this one off instance an unauthorised absence or gross misconduct without following due process is discriminatory against the claimant. There is no defence for discrimination.
  7. 7. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 7 of 9 The worst case scenario for the claimant and very bad for moral after having worked many hundreds of extra hours and weekends without extra pay would be for the employer to reclaim the three days owed at a later date with sufficient notice in a form manageable by both the employer and employee. However this is a situation that Mr Baxevanidis was wholly instrumental in, by creating the unauthorised absence or gross misconduct Mr Baxevanidis clearly took advantage of a vulnerable employee in a very difficult situation and subjected that employee to detriment. 10. The claimant returned to work as per his messages, without any knowledge of what had passed there during the previous three days. It is clear from what Mr Baxevanidis has said in his statements the claimants’ messages had been rejected as lies and fellow employees had been openly complaining about the claimants’ unfortunate situation; Mr Baxevanidis in his own words describes a bullying, hostile and dangerous environment for the claimant to return to. 11. In an event recorded solely by Mr Baxevanidis it is crystal clear that Mr Baxevanidis has very strong opinions and a great deal to say on the subjects and that the claimant had little to say and was very disturbed by the attack of his dignity at work. So much so the claimant became very distressed declaring himself as unfit for work as is a right, asked for permission to leave which was not needed but granted and left. (Employees only need a fit note from a doctor after 7 days off work sick) There was no company medical officer or first aider to check the claimants’ condition.
  8. 8. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 8 of 9 12. The claimants’ self-certification of illness was firstly accepted and then ignored and perceived as a lie and the claimant whilst under the emergency consultation of a Doctor was without knowledge falsely charged with unauthorised absence or gross misconduct. 13. Mr Baxevanidis made what because of his other actions a very inappropriate threatening phone call ordering a sick employee back to work, feeling further threatened, orally the claimant complained of harassment. 14. The next day in writing the claimant complained of bullying. 15. In the salary run of December 15th two unauthorised deductions from salary were made by Mr Baxevanidis. The only notification received was an oral notification that for an unauthorised absence of three days the claimant would not be paid, there was no acceptable notice given of when this would happen. There was no notification whatsoever of the 5.5hrs of unauthorised absence for a reported sickness which the day after payday was first described in terms of gross misconduct. 16. Mr Baxevanidis had acted too hastily. As a salaried employee the claimants’ salary had all the protection from unauthorised deductions afforded by law, the deductions without notice for unauthorised absence or gross misconduct for the above reasons were illegal and discriminatory. 17. Mr Baxevanidis was operating under an earlier statement he had made after being empowered by Peninsular Business Services. “I can sack you all whenever I like, without calling anybody in”
  9. 9. BRISTOL ET Cases 1401745/2012 1401756/2012 1401811/2012 1401812/2012 and 4109312/2012 2 January 2013 Gardiner v Exsto & Ors Page 9 of 9 18. There is no legitimate defence for discrimination for this reason the respondents response should be struck out. The defences used in this case by the respondents are an abuse of the system and the claimant and are as follows: a) Time delay to frustrate the claimant into defeat b) Wholly discredit the claimant and his claims c) Claim a clearly incorrect judgment as support and prejudice “In relation to the comment on the claimant’s email of 10th December 2012 saying “I ask that the respondents response be struck out”, he does not say on what basis. We object to this blanket application. We have seen other emails which are signed off with something similar. a. Perhaps the claimant is saying the response should be struck out because of the viewpoints expressed in the preceding paragraphs of his email. As the claims are duplicate, we have the benefit of a judgment on these facts; the tribunal made no findings of ‘abusive orders’ being issued or ‘a hostile and dangerous environment’. With respect, these findings of fact should not be disturbed by re- examining the issues as it would cause prejudice to the respondent. Respectfully, any issues on the merits should be saved for the full Hearing should any aspect of the claims survive the PHR. b. We do not understand the claimant’s statement that “[the respondents] have indicated they will present this and other false evidence a second time (as per CMD 20/11/2012)”. We have said no such thing. We presume by “false” the claimant means “does not accord with his view”. c. In our opinion, the enclosed email from easyJet is of no relevance to the narrow legal proceedings listed for the forthcoming PHR and is merely an attempt to have this issue reheard. The respondent is entitled to respond to these five duplicate proceedings being brought against them. It is not appropriate to ask for our response to be struck out for no reason, or because the claimant does not like what we have said in it. “ d) Claim the claimant is abusing the system e) Claim the claimant acts are vexatious and scandalous f) Claim the claimant has no reasonable prospect of success g) Attempt to raise punitive unfair financial barriers against the claimant h) Claim the claimant is a serial litigant

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