Unauthorised absence

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.

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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.

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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.

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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”

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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”.

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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.

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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.

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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”

BRISTOL ET Cases
1401745/2012 1401756/2012
1401811/2012 1401812/2012
and 4109312/2012
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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