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Witness Statement Douglas Gardiner v Exsto


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Witness Statement Douglas Gardiner v Exsto

  1. 1. Page 1 of 14 In the Bristol Employment Tribunal Case No.: 1400500/2011 Between GARDINER – CLAIMANT And EXSTO - RESPONDANT Witness statement Douglas Gardiner of 5 Weavern Court Frogwell Chippenham Wiltshire SN14 0LU
  2. 2. Page 2 of 14 Employment Background. I am 46 years old with basic O-levels and no higher education, with a background in the polymer industry starting with BTR (2 years) Avon Rubber PLC (15 years). Time with the Respondent. 1. I joined the company Dunlaw Engineering in August 2003. After joining I gained a position which suited my natural aptitude for drawing, immersing myself into the challenging and rewarding role of designing many bespoke products. In 2006 due to financial difficulty the company was taken over by Baulé Industries. In 2008 the majority of the workforce were made redundant, the factory closed, the manufacturing moved to France and the remaining 6 office staff moved to Melksham. In 2009 the company was renamed Exsto UK Ltd. 2. On February 28th 2011 I was forced into resignation after 7 years good service. 3. Over these years I have designed many profitable products for the company. In 2007 I was rewarded for my hard work with a pay rise one of only 2 to date in a 5 year period. Despite a serious disabling illness lasting for 5 years, I have had an exemplary attendance and time keeping record, in 27 years of continuous employment I have never been disciplined once. For the company I have worked many extra hours, mostly by coming in early in the morning, during lunch hours and many hours of thought at home considering solutions for many problems. Explantion of Statement Notes. 1. Conversation items in speech marks are exactly as I remember them without are words to that effect. 2. Numbers in square brackets [section-page numbers] refer to bundle documents. 3. Notes marked [*UD*] respond to information undisclosed despite a request. 4. [*OFBDR*] Refer to correspondence omitted and available for inspection from the bundle despite a request 5. [OB] Document omitted from the bundle, available for inspection. 6. [CH-??.?] Company handbook section. 7. Laws [EReIA 1999 Ss11-12] [ERA 1996 sec11(2), 13 & 23]
  3. 3. Page 3 of 14 Statement. Saturday 4th of December 2010 1. Due to the Spanish air traffic controllers’ wildcat strike I was stranded in Spain. My reaction was to do, all that was reasonably possible to book the earliest return flight home. At considerable distress and with the resources at my disposal, I attempted to book a return flight for Sunday then Monday, both unsuccessful, the website automatically directed to the next available flight. [Email:10:29*OFBDR*] 2. I then attempted to call The General Manager of Exsto UK (the company) Mr Baxevanidis, (B) however I did not have his number. 3. I called a trusted colleague Vincent Bezard (VB). He assured me he would tell B at 5 a side football on Sunday, we also discussed an important repeat enquiry, with which I said “I could deal with on Thursday”. Considering the circumstances, informing a trusted colleague was a very fair and reasonable approach. The company [38-167] would be well aware and understanding of my inability to attend work on Monday. 4. It was not until many hours later that I received official notification of the flight cancellation. [Email:15:28*OFBDR*] Wednesday 8th of December In the afternoon I returned to the UK on a full flight and could have gone to work on that evening if needed or requested.
  4. 4. Page 4 of 14 Thursday 9th December 1. On that morning at 7:45am when I returned to work there were no notifications or information for urgent work to be dealt with. After 45 minutes VB walked into our office, he stated in no uncertain terms. “The boss is not happy with you” 2. I was very surprised by this remark as I had personally done nothing at all to cause B to feel this way or for him to be sharing malicious rumours about my conduct. 3. I continued with my work and later went round with some olives. I knocked on B’s office door. He invited me in. In a very unpleasant fashion his opening line, after I entered, was. “Oh! Here he is we’ll have a chat later” I asked, “why not now?” In a very surly aggressive fashion he replied, “No! Later” Not knowing it at the time I strongly believe B had acted as [CH Sect 23.1 *OFBDR*] 4. Later that morning when everybody else was in a meeting, B silently and unannounced walked into the office I shared with two others, closing the door behind him. This was unusual as our office door was always kept open. He sat in the spare chair I kept next to my desk cornering me, then he expressed in a very aggressive manner what seemed to be all of his personal views, on why I had lied and failed to make enough effort to return to work earlier, he told me he had conducted an investigation and my punishment for showing disrespect by not contacting him personally was to lose 3 days’ pay, I was totally unprepared and virtually speechless at such an unjust and unreasonable attack of my dignity at work, it triggered the start of an horrific stress reaction from which to date a period of 9 months, I have not recovered. 5. I told B I was ill [ERA 1996 s 44(d)] and had to go home, he then aggressively invaded my personal space and said very calmly and quietly “go then” I strongly believe B had acted as [CH Sect 23.1 & .2 *OFBDR*] 6. The “chat” had been adjourned with only one agreement of any kind, with his authority, my emotions controlled to the best. I walked as calmly as I could from the building. In my car I was in such a state I could barely drive. 7. At home I was very unwell so I went to bed to try to recover the preceding few days had been very stressful for me. 8. Around midday my private phone rang I answered it, it was B, I was so uncontrollably angered by this unwanted and unexpected intrusion into my privacy that mentally totally out of control I shrieked rightly or wrongly, “LEAVE ME ALONE, THIS IS HARRASMENT” I then hung up. I had told B as per [CH Sect 23.3 *OFBDR*] 9. Within a few minutes B again called and left an answer phone message which in my confused mental state I listened to and then very angrily deleted. 10. During these calls he was very angry indeed I recall him very aggressively ordering me back to work, telling me that he had consulted with the “HR department” saying “what you are doing is wrong” and quoting “HR law”. 11. He had predated me appallingly with no respect for my dignity at all. 12. At 12:30 so overcome by what had happened, I took the unusual step of calling B’s manager in Exsto (the parent company), The Group Sales Director Jean-Marc Penelon (JP) to talk in confidence about B’s bullying behaviour. This was unusual in the respect that I very rarely had any contact at all with B’s senior managers. During this conversation JP stated that both he and B had discussed difficulties despite many years of speaking English of making themselves “Understood by the English” “Even John having lived in England for 10 years has difficulties”
  5. 5. Page 5 of 14 13. To clarify I said “There was no misunderstanding about a losing three days’ pay”, as punishment. During the call JP complained about the quality of the line, this was partly due to the fact, I was so mentally disturbed that I could barely talk. 14. JP calmed me down somewhat and advised me to speak to B to resolve the situation, however at that moment in time this was totally out of the question. I was pacing the room, shaking and totally unable to speak to B. I had acted out [CH Sect 23.4 *OFBDR*] JP should have acted as [CH Sect 23.5-9 *OFBDR*] 15. Later I called easyjet for further confirmation that I had in fact caught the earliest available flight. [40-169] 16. Although already self-certified as unfit for work, I arranged an emergency appointment with the Doctor next day, to seek help and a professionals’ opinion, as on other occasions, if I had reported to the company unfit for work, most of my fellow workers had repeatedly not believed me, mocking me and saying I’d been playing golf. 17. Later that afternoon a colleague called me on behalf of Exsto, taking advantage of my good nature, acting as I believed in good faith, manipulated me despite my terrible condition to complete the work I had started that morning. He sent me an e- mail with the relevant files. [OB] 18. I attempted to do the work that evening without success. I could not concentrate and had to sleep. Friday 10 th December 1. After a very short sleep I awoke in the very early hours of the morning fretting about everything, especially now the incomplete work. I had after all been thinking of its urgency since Saturday. Due to work related stress I had no mental option but to go to work to finish the job I could not rest until then. 2. At work I sent an e-mail to B and myself. [Email:06:41*OFBDR*] 3. At the doctors I was given a fitness for work statement. [OB] 4. A colleague from work sent me some advice.[OB] 5. I built up enough courage to call work to talk to and advise B that I would be off until after Christmas. B was unavailable as he was in a meeting, so I left a message. Monday 13th December 1. After a weekends rest I felt I could and did take my fitness statement to work. I could have had a welfare discussion or have been invited to a welfare discussion at this point. B was a very calm, reasonable and measured in his actions saying very little, a very different character to the personality with whom I had had to deal with on Thursday. As a result I left the building suffering another stress panic attack, crying, greatly distressed, this time I could not drive for 10 minutes. 2. That afternoon I attended an appointment with the practice councillor. Tuesday 14th of December 1. I decided to launch a further grievance with B’s managers 2. Later I received a very offensive e-mail from a work colleague.[OB] 3. Unauthorised access to a company computer is unacceptable on any terms. [CH Sect 34.2 *OFBDR*]
  6. 6. Page 6 of 14 4. In the capacity of manager of the computer I called Sound Marketing to find out if anybody was attempting to access the computer without my authority. Mark Warburton (MW) said B had called him and that he could go to the office to bypass the password. I told MW if B called again I would give him, MW the password. There was no reasonable reason why B would need access to this PC without my presence. Later that day MW called me back to ask for the password. 5. I e-mailed the head of the HR department in France. To this day I have never received an answer. [Email:15:57*OFBDR*] 6. I attempted a fruitless contact to JP. [Email:16:09*OFBDR*] as he was now on holiday until the 3rd of January. Wednesday 15th December 1. There was a shortfall in my normal salary payment. 2. I contacted the company accountant John Lewis (JL) to make sure there was no mistake with my salary. [Email:16:27][14-41] 3. He replied with my payslip [15-93] it is inadequate, unexpected alterations are unclear showing deductions? an addition, unauthorised by me, the hourly rate that was not agreed, I had not been through a three stage process to allow these deductions from my salary, the company had acted illegally. I could not understand at all or think of a plausible reason for the addition. I have worked many hundreds of extra hours for the company and never been paid for them. [ERA 1996 sec11(2), 13 & 23] 4. I requested an explanation of B. [Email:17:37][14-43] 5. B replied later that evening to my 1st e-mail to him, his 500+ word document headed “deductions from salary” [Email:20:33][14-45] is very repetitive, rambling, confusing and he does not answer my questions at all. However: 6. 1st paragraph he refers to his bullying session as “a meeting” this was quite simply not the case, in an attempt to mislead me he states there is no time limit to raise a grievance. 7. 2nd paragraph he states I made a sudden departure from the company. He was well aware I was ill and had left with his authority. He states I am upset why would I be? contradicting himself, as in the opening line of his mail he acknowledges for the first time in over a week that I am actually ill, in fact now I was very ill. 8. 3rd paragraph he describes the unauthorised deductions as “deductions from salary” and it was he who authorised them. 9. 4th paragraph he invites me to a discussion I could have had with him on Monday when I personally handed him my fitness for work statement. 10. I replied to this e-mail and requested for the 2nd time, a written explanation as had been offered. [Email:23:15][14-47] Thursday 16th December 1. I request an explanation of the addition to my salary as this also worried me. [14-48] 2. E-mail received. [Email:16:47][14-49] 3. 1st paragraph: The definition of the illegal deductions from my salary had overnight magically changed to a “simple loss of appropriate pay” I would contest this losing over 10% from my salary at Christmas now amounted simply to victimisation. 4. My dignity at work, in bed and now my salary had all been violated by B.
  7. 7. Page 7 of 14 5. 5th paragraph: This PS shows my contract of employment in not current in many ways. [7-24,25] I signed this contract under duress during a 7 week period of sickness for which I had remained on full pay. [ERA 1996 Sec 11(1)] 6. Undated attached letter. [16-94,95] 7. Another rambling, bullying repetitive document of 1100+ words was produced a full week after the initial bullying incidents. It shows in his own words how B had conducted a totally unreasonable investigation [ETA 1996 Sec 3] and has held a disciplinary meeting without my right to be accompanied. [EReIA 1999 Ss11-12] 8. If permitted I would now like to show [] 9. The first reasonable action, if any was required at all! Would have been to call me for an eyewitness account and tell me what I could do for the company whilst I was trapped. 10. My “sudden departure from the company” (as above) has now become “stormed out of the building” an untruth and very old phrase I didn’t think was in use anymore. I am also falsely accused of being aggressive and threatened with “HR Law” again. [ETA 1996 Sec 3] 11. He has chosen to forget that he had authorised me to go. [ETA 1996 Sec 3] 12. His reason for calling me has changed totally to the earlier e-mail.[14-45] 13. He has chosen not to remember that on the phone I had accused him of harassment. 14. Everything has been twisted to favour B’s position. 15. He disciplined me unjustly. [EReIA 1999 Ss11-12] [ETA 1996 Sec 3] 16. Not really addressed to me, this letter was just more harassment and bullying as it is full of untruths. With my level of stress, it has taken me many months before I could attempt to read this fully without breaking down. B has acted in contravention of [CH Sect 23.9 *OFBDR*] The company had acted out its’ own procedure and victimised me in accordance with [CH Sect 23.10 *OFBDR*]
  8. 8. Page 8 of 14 Friday 17th December 1. As I feel very unlikely that I will be able to return to work in the New Year, I say I will be taking holiday as this had been perfectly acceptable when I was ill in the past. [Email:10:45][14-53] 2. E-mail received [Email:15:41][14-55] 850+ words of more confusion and repetition. 3. 1st Paragraph: In my confused state I read this as a reasonable holiday request by me as being denied for the first time in my whole career of 27 years. 4. Invitation to grievance letter received via e-mail. [Email:15:41] [11-32] 5. This document dated 13/12/10 contains in writing false allegations. 6. My e-mail dated the 10/12/10 [Sent:10 December 2010 06:41*OFBDR*] does not mention anything about getting a sick note from my GP that would be my GP’s decision not mine. 7. My allegations of bullying were not confined to the “chat” they were for the whole day. 7. The company should have had enough evidence by now to have started its’ own harassment, performance and conduct procedures. [CH Sect 23 & 24*OFBDR*] 8. I decided to submit a written grievance to The Managing Director & CEO Christophe Torres (CT) and JP as I had been invited. 9. Company handbook extract via e-mail. [*OFBDR*] 10. This is a superseded document falsified with an Exsto UK header. This was ordered to be included in the bundle at a CMD on 22/08/11 but still omitted by the respondents’ representative. Saturday 18th December 1. I do not understand the sending of recorded delivery items of no value a distance of 5 miles, despite my honesty and many years good service I take it as the company does not trust me any more to admit that I have received them. [Email:14:13][14-57] Confirmed by B by reply. [Email:17:03][14-58] 2. Due to the attacks on my dignity, lies, deceit, unfair treatment, many mistakes, failure to follow procedures and inaccurate documentation. I was now having sleepless nights, despite my medication, my condition was deteriorating rapidly. Sunday 19th December E-mail sent. [Email: 15:54][14-59] Monday 20th December 1. E-mail received. [Email: 09:30][14-60] 2. 1st Paragraph B says I had never told him of my stress of course this is untrue, earlier that year after I had mentioned stress several times and how Ben Carew who I was supposed to be training “he’s driving me nuts” B’s reply “he’s young”. I had lost 3 stone in weight, was hiding behind a screen and wearing ear defenders (as witnessed by CT & JP during visits). After one compliant, B had offered me an alternative very small office next to the lavatory at the top of the stairs. In 20 years I have never worked on my own in an office, so this option for many reasons was unsuitable. JL was so concerned at my change in health that he tested me for diabetes.
  9. 9. Page 9 of 14 3. My appraisals sent later that day also make clear reference to my ill health, an ability to control my temper, my excellent time keeping and attendance records. [Email: 15:51][35-136,151] 4. Dr’s fitness for work statement. [OB] Thursday 23rd December 1. Unrequested E-mail received. [Email:15:26][14-62] In essence saying do not come back to work. 2. In 5 working days B had sent me 5000+ words of repetitive wall paper to cover his harassment, when simple advice from the HR department could have resolved the situation. I had been victimised and smothered by words. Wednesday 5th January 2011 1. Unrequested e-mail B [Email:14:26][14-64] 2. 3 weeks sick pay, I did not know if my contract was valid as stated earlier. As a valued member of staff the company had on many occasions reasonably adjusted this part of my contract when I had been ill before to the point that I had accepted the change as an unwritten variation as I had been paid for many weeks over and above the 3 weeks as stated in this e-mail including an original 7 week period when I signed the contract. Besides as per [CH Sect 24.5.2*OFBDR*] I should have been suspended on full pay pending investigations into my bullying allegations. Monday 10th January 2011 1. [Email: 10 January 2011 08:38] [Email: 10 January 2011 09:17] [Email: 10 January 2011 21:54] 2. Grievance Letter sent to CT and JP. 3. Read receipt that evening - I cannot believe that JP did not pay any attention to my grievance before he returned to France [Email: 10 January 2011 12:21] 11th January As JP was on site I asked my mediator to call and introduce himself to the company. 12th January Unrequested e-mail and penultimate correspondence from B [Email: 12 January 2011 15:09] [Email: 12 January 2011 15:34] 13th January 2011 The actions of the 13th of January rendered me totally unfit for work with my grievance submitted I was expecting some understanding from the Directors of the company acting out their fiduciary duties. The opposite was true. The following comments are based on diary entries I made.
  10. 10. Page 10 of 14 Crying babies and car horns make me break down so heaven knows what pouring over pages of documents will do for me.. Also they've still left the man I have the grievance with in control of my welfare and today he's taken my salary apart -£800 off the bottom line, this they told me by e-mail today at 4 ish just hours before pay day... I must say I still feel totally unfit for work and this uncaring behaviour complicates my condition. I've received several uninvited e-mails too I feel they've shown no care at all for my well being and seem to be backing me into a corner or trap. Sorry if this is rambling I am terribly stressed and anxious about this.. During the following weeks my health disintegrated. As a result I recall nothing but pain and suffering so the rest of my statement can be followed through e-mail correspondence. From: JP Date: 13 January 2011 10:48 From: JP Date: 13 January 2011 11:20 From: DG Date: 13 January 2011 11:58 From: JL Date: 13 January 2011 16:02 From: JP Date: 13 January 2011 16:12 From: DG Envoyé : jeudi 13 janvier 2011 12:59 From: DG Date: 13 January 2011 18:16 14th Jan 1. I had planned to return to work, but the latest correspondence from the parent company has rendered me totally unfit. 2. I've got some vallium from my Dr today which has made me feel a whole lot better this is just to help me through the next week. 3. I've asked the accountant about my salary 4. Also I've found out today if I had returned to work my office and my computer were destroyed by the floods mentioned so I would have been unable to work there anyway?
  11. 11. Page 11 of 14 From: DG Date: 14 January 2011 10:05 From: JP Date: 14 January 2011 12:39 From: DG Date: 14 January 2011 15:01 From: DG Envoyé : lundi 17 janvier 2011 12:09 From: JP Date: 17 January 2011 15:51 From: DG Date: 17 January 2011 16:51 From: JP Date: 17 January 2011 17:24 From: JP Date: 19 January 2011 15:19 De : DG Envoyé : mercredi 19 janvier 2011 11:28 From: JP Date: 19/01/2011 08:53 From: JP Date: 19 January 2011 16:54 20th Jan 2011 Hearing date I attended unable to drive so MF takes me during the course of this meeting I storm out on three occasions to take valium. From: JL Date: 21 January 2011 11:11 21st Jan My Doctor told me very strictly today not to have anything to do with work for at a least another month as I am totally unfit for work. I should get the meeting notes and answers to my grievance within 5 five days I was just looking for a bit of sympathy from my employer I've worked for these guys for 7 years but alas I believe they're getting advice from Peninsular who seem to be a bit on the ruthless side. In the meeting Jean-Marc seemed to be very supportive of John Bax and his actions, I felt very much like I was wasting everybody's and my time...
  12. 12. Page 12 of 14 These guy's just don't seem to have any idea how ill they've made me...I still think they think I'm making it up. From: DG Envoyé : samedi 29 mars 2008 05:19 25th Jan The minutes of the meeting - lots of unanswered questions..... I'm starting to feel like the criminal here... I didn't get much help from my chosen assistant he was working more for JP From: MF Date: 26 January 2011 10:22 From: MF Date: 26 January 2011 11:40 From: JP Date: 27 January 2011 08:11 From: DG Envoyé : dimanche 2 janvier 2011 19:24 From: DG Date: 27/01/2011 11:45 From: JP Date: 27 January 2011 13:04 From: DG Date: 28 January 2011 00:16 From: DG Date: 28 January 2011 01:38 From: JP Date: 28 January 2011 07:30 . From: DG Date: 31 January 2011 08:59 From: JP Date: 31 January 2011 13:19 From: JP Date: 31 January 2011 13:46 1st February 2011 Today I went to the office when the boss wasn't there saw all the guys and had to walk out had a breakdown, I lasted 3 mins the place is a disgrace I have no place to work anyway,
  13. 13. Page 13 of 14 with my computer broken, no desk and builders debris everywhere what a poor company I work for...I know I shouldn't have gone in (against Drs orders) but heck needed to prove it to myself......was feeling guilty about feeling a bit better.... Still awaiting an answer from France regarding my grievances should get one today that's what I've been told.. They tried to buy time with a letter I told them no way.... From: JP Date: 02 February 2011 10:06 From: DG Date: 02 February 2011 11:13 From: JP Date: 02 February 2011 11:41 From: JP Date: 04 February 2011 10:52 From: JP Date: 04 February 2011 13:01 From: DG Date: 04 February 2011 13:50 From: DG Date: 07 February 2011 01:15 . From: JP Date: 07 February 2011 09:54 From: JP Date: 09 February 2011 18:34 So I received the grievance conclusion letter what a shock I just could not believe it as a result despite 4 sleeping tablets I stayed awake for 37 hours. The whole basis of the horrendous treatment I had received was an old memo everybody had forgotten about and it was not part of my contract anyway. This is the first time I have seen or heard of this memo in four years. Ben Carew a new employee was certainly not aware of it he had texted and called me several times to say he would not be in. I had sent an early e-mail to say I would not be at work to a colleague on the 9th August when I had caught a chill on Sunday the 8th of August the day I broke my phone this absence had not been treated in such a draconian fashion. From: JP Date: 10 February 2011 18:06 From: DG Envoyé : mercredi 9 février 2011 21:25 From: DG
  14. 14. Page 14 of 14 Date: 12 February 2011 15:58 From: CT Date: 16 February 2011 18:02 From: CT Date: February 21, 2011 3:30 PM From: DG Date: 23 February 2011 14:12 From: CT Date: 25 February 2011 16:44 From: DG Date: 25 February 2011 19:45 From: DG Date: 28 February 2011 09:21 I had not forgotten an earlier statement given directly to me in after August in 2010, just after an onsite meeting with a PBS representative, B stated with no other words: “I can now sack you all whenever I like, without calling anybody in” [*UD*] From: DG Date: 02 March 2011 17:30 From: JP Date: 02 March 2011 18:47 From: CT Date: 03 March 2011 16:05 Statement of Truth This statement is true to the best of my knowledge and belief. ……………………………………… Douglas Gardiner Date: