Cold store manager 'frozen out', tribunal hears

by DOUG COLLIE

One of Scotland's leading fish wholesalers has been ordered to pay its former cold store manager more than £10,000 in compensation after he brought successful claims for wrongful and unfair dismissal against the company at an employment tribunal hearing.

A judgment in the case published at the weekend found Darren Amers' claims were justified after he left the employment of D R Collin & Son, of Eyemouth. Collin's processes and supplies fresh and frozen fish and seafood products to wholesale customers in the UK, the EU and (on occasion) outside the EU, including bars and restaurants.

In evidence, Mr Amers told the tribunal he 'loved' his job and when he was removed from his managerial position and offered a lesser paid post after a period on furlough it was "like a kick in the teeth".

The written judgment from employment judge Antoine Tinnion explained that Mr. Amers had pleaded that three actions “had a bearing” on his dismissal: (i) his involvement in a workplace accident in Autumn 2018 in which another employee of the respondent (Collin's) had negligently electrocuted him (ii) his choice to pursue a personal injury claim against the respondent arising out of that accident (Mr. Amers contended this was the real reason for his dismissal) (iii) his informing the respondent that there were pigeon droppings within the cold store and there was a lack of toilet facilities.

"As well as challenging the reason for dismissal, Mr. Amers pleaded his dismissal for redundancy was unfair for two reasons: first, he was not warned or consulted, properly or at all, of the impending redundancy situation; second, he was not offered any right of appeal against dismissal", states Judge Tinnion.

D R Collin accepted Mr. Amers had worked for the firm, but only in the capacity of a worker, not an employee, therefore alleged the Tribunal lacked jurisdiction to hear the unfair dismissal claim. They also denied dismissing Mr. Amers, claiming instead he had “terminated his own position by indicating that he did not wish to undertake any further work as offered by them.

In addition the respondent contended that if he had been dismissed, the reason for dismissal was  redundancy, and denied Mr. Amers’ personal injury claim had anything to do with its treatment of him. They denied Mr. Amers was entitled to a redundancy payment because he had unreasonably refused an offer of suitable alternative employment. 

However, in correspondence prior to the start of the hearing, the respondent conceded that Mr. Amers had been one of its employees (without qualification). Given that concession, and the undisputed fact that Mr. Amers had worked continuously for the respondent for over two years, the Tribunal was satisfied that it had jurisdiction to hear the unfair dismissal claim.

According to the written judgment: "On 1 May 2017, Mr. Amers joined the respondent’s employment as a cold store operative and was paid £10/hour plus overtime. During his employment, Mr. Amers’ primary place of work was always the cold store.

 

"When Mr. Amers joined the respondent, he already knew – and was on good personal terms – with its owner/director Mr. James Cook. Mr. Amers and his wife socialised together outside of work with Mr. Cook and his wife. It was in fact through Mr. Cook that Mr. Amers obtained this employment."

The tribunal was told Mr. Amers was involved in a workplace accident at the respondent’s premises, which on his account was the result of the negligence of another named employee which caused Mr. Amers to receive an electric shock, throwing him out of the reach truck he was in at the time. 

Then in 2019, after the accident but before he intimated any intention to bring a personal injury claim, the respondent promoted Mr. Amers to the post of Cold Store Manager, gave him a pay rise to £11/hour, and provided him with a company car and fuel allowance.

The judgment continues: "In 2019 Mr. Amers issued a personal injury claim against the respondent for a PTSD injury which he claimed the 2018 accident caused him. After Mr. Amers issued a personal injury claim, Mr. Amers’ previously friendly personal relationship with Mr. Cook ended, the Tribunal infers at Mr. Cook’s instigation."

Following the onset of the Covid-19 pandemic in March 2020 and the measures the UK government (and EU governments) introduced to address it – primarily,  “lockdowns”, the temporary closure of most businesses for retail customers (bars, restaurants), and social distancing requirements – the respondent’s business suffered a significant downturn in trade. Collin's closed the cold store, and put Mr. Amers and others on furlough. Mr. Amers never returned to work, and remained on furlough until July 2020.

When he was called to a meeting with management Mr Amers was told that due to the way trade was going the business was doing more fresh fish, the Cold Store would no longer be used as much as there was less need to store frozen food, and there was no longer a position for him at the Cold Store. He was then told he could work at a different site. Mr. Amers asked if he’d be on the same pay. But he was informed he’d have to take a pay cut to £9.50/hour.

On 14 July 2020 Mr. Amers informed the company via WhatsApp that he would not be accepting the new job and pay cut offered to him. Mr. Amers confirmed later that he was not accepting the offer to work at a different site.

"When asked in his evidence in chief what he believed the true reason for his dismissal was, Mr. Amers stated 'That’s what I would like to find out'. Mr. Amers stated that once his personal injury claim was made public within the company and he made a request for CCTV, his relationship with the respondent’s directors changed."

Judge Tinnion concludes: "The Tribunal finds that Mr. Amers was expressly dismissed. The Tribunal is satisfied, on the balance of probabilities, that the sole reason for Mr. Amers’ dismissal in July 2020 was genuinely that of redundancy. 

"The Tribunal pauses to note that the evidence on this issue was less than satisfactory. The obvious way to establish that the Cold Store was less busy in the second quarter of 2020 than it would normally have been would have been for the respondent (on whom the burden of proof lay) to provide data comparing the Cold Store’s utilisation in Q2 2019.

 

"Affording Mr. Amers a right of appeal against his dismissal would have given him a proper opportunity to consider the situation and state his case to his employer to the best of his ability. That opportunity was denied him, and in the Tribunal’s judgment the respondent acted unfairly and unreasonably in doing so. 

 

"The respondent denies Mr. Amers was dismissed, but has put forward no reason why (if he was dismissed) it was reasonable not to offer him a right of appeal against dismissal. The Tribunal’s judgment is therefore that Mr. Amers’ unfair dismissal claim is well-founded and he is entitled to a remedy in respect of same. The Tribunal’s judgment is therefore that Mr. Amers’ wrongful dismissal claim is also well-founded and he is entitled to a remedy in respect of same."

Collin's was instructed by the judge to pay compensation to Mr Amers totalling £10,434.36.