England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2013

His Honour Judge Richard Seymour Q.C. :

Introduction

1. The business of the defendant, Glencore UK Ltd. ("Glencore") is the production and marketing of commodities. One of the commodities in which Glencore deals is oil.
2. The claimant, Mr. Andrew Kearns, was employed by Glencore pursuant to the terms of a contract of employment ("the Contract") contained in a letter dated 9 January 2009 written by Glencore to Mr. Kearns setting out an offer of employment on the terms set out in the letter, which Mr. Kearns counter-signed and dated 22 January 2009 to indicate his acceptance of those terms. Mr. Kearns was employed by Glencore as a trader in its Oil Department. He was dismissed summarily on 13 October 2010.
3. Clause 1 of the Contract dealt with remuneration. It provided for Mr. Kearns to be paid the sterling equivalent of US$225,000 per annum and a signing on bonus of US$325,000. There was no other provision in the Contract for the making of any payment to Mr. Kearns, although clause 7 recorded that life assurance and long term disability cover were provided for all employees.
4. By clause 2.1 of the Contract it was provided:-

"Your office hours are from 9.00 am to 5.30 pm Monday to Friday, but you may be required to work such additional hours as may be necessary to properly perform your duties.

Staff are allowed a lunch break of one hour and the normal working week, exclusive of lunch breaks, is 37.5 hours."

5. Clause 9.1 of the Contract provided for a trial period of three months. Thereafter, according to clause 9.2:-

"After satisfactory completion of your trial period, the period of notice given by the Company will be in accordance with the statutory requirement with a minimum of one month's notice."

6. Towards the end of the Contract there appeared this:-

"OTHER POLICIES

The Company operates a number of policies which are available from the Human Resources Department. It is your duty to read and comply with all such policies. The Company reserves the right to amend or add to such policies from time to time.

Disciplinary Policy and Procedure

The Company operates a non-contractual disciplinary procedure contained in the disciplinary policy. The disciplinary policy applies to all staff. A copy of the policy is available on request from the Human Resources Department."

7. The Disciplinary Policy and Procedure ("the Disciplinary Policy") of Glencore incorporated into the Contract included, in clause 1:-

"This procedure is for guidance only and does not form part of the employee's contract of employment save for the sections headed 'Suspension', 'Alternatives to Dismissal' and 'Gross Misconduct' which are contractual and are clearly labelled as such…."

8. Clause 9 of the Disciplinary Policy dealt with gross misconduct. That clause included:-

"This section forms part of your contract of employment.

Gross misconduct (including gross negligence) involves conduct which is particularly serious in itself or in its consequences (whether actual or potential).

In cases of gross misconduct, the Company is entitled to dismiss the employee summarily without notice or pay in lieu of notice.

Matters which are considered to be gross misconduct and justify summary dismissal, include, but are not limited to:

…

being under the influence of, or possessing, illegal drugs or being drunk during working hours;

bringing the Company into serious disrepute;

…

serious breaches of the Company's other policies and practices or the employee's duties whether communicated as part of their contract of employment or otherwise;"

9. In the Re-Amended Defence served on behalf of Glencore it was alleged, in addition, that the usual terms implied by law in a contract of employment were to be implied into the Contract. Paragraph 2 of the Re-Amended Defence was in these terms:-

"The Contract included the following implied terms ("the implied terms"):

a. That neither the Claimant nor the Defendant would, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee;

b. That the Claimant would obey all reasonable instructions given to him by the Defendant;

c. That the Claimant would perform his duties with reasonable competence and care."

10. Although not mentioned in the Contract, the parent company of Glencore, a corporation incorporated in Switzerland called Glencore International AG ("the Swiss Parent"), established an Employee Benefit Trust ("EBT") by a trust deed dated 6 September 2007. The principal purpose of the EBT was to provide a mechanism for employees of, inter alia, Glencore, to have the benefit of a form of non-voting security for which Swiss law provided called "Genussscheine". The EBT received Genussscheine pursuant to the terms of a profit participation agreement dated 1 October 2007. That agreement made provision for the allocation of Genussscheine for the benefit of an employee, subject to the completion of service during a two year vesting period. In other words, once allocated Genussscheine under the EBT an employee had to remain an employee of Glencore for two years before an entitlement to the benefit of those Genussscheine vested. With a view to simplifying discussion at the trial the rights of an employee in respect of Genussscheine were called "share options". Strictly they are not, but it is convenient hereafter in this judgment to describe Genussscheine and the rights of an employee in respect of them as share options.
11. By a letter dated 5 April 2009 to Mr. Kearns the trustees of the EBT, Appleby Trust (Jersey) Ltd. ("Appleby"), informed him that he had been allocated 25 share options with effect from 1 July 2009. In order for those share options to vest for his benefit Mr. Kearns needed to have been employed by Glencore until at least 1 July 2011. As a result of the dismissal of Mr. Kearns summarily on 13 October 2010 he never became entitled to the 25 share options.
12. Following the summary dismissal of Mr. Kearns Rosemary Loving, the Head of Human Resources at Glencore, wrote Mr. Kearns a letter dated 22 October 2010 which included:-

"I refer to the meeting with Alex Beard held on 13 October 2010 and am writing to confirm the termination of your employment for gross misconduct on that date, without notice.

Your dismissal is on the grounds of gross misconduct for a serious breach of your duties and our confidence in you while on a business trip in Singapore during APPEC week (w/c 8 October 2010).

You failed to attend critical business meetings relating to the Fujairah Project and other matters which were scheduled during the day on Monday 11 October 2010. Specifically, you missed the 10 am meeting with Bakri, the lunch meeting with the Fuel Oil Team and various meetings in the afternoon. The date and time of all these meetings was known to you in advance. It was decided during the Fuel Oil meeting on Sunday 10 October, which you attended, in front of 7 witnesses, that all Fuel Oil Traders would meet again on Monday, and all attended except you. There was also a written agenda for the Bakri meeting which was given to you before you left for Singapore. These were meetings which you were required to attend, and you knew that your attendance was mandatory and business critical.

Furthermore, you did not answer your phone or emails as a number of calls and emails were made to you during the day to ascertain your whereabouts. You also failed to proactively apologise or explain your absence to Alex Beard or Yannick Fedele. You attended the party at 7 pm the same day and when asked by Yannick for an explanation, you claimed that you did not know that there were any meetings. This was not considered to be a satisfactory explanation for reasons outlined above. You had said to Yannick the night before the meetings on Sunday that you would try not to do the same in Singapore as you had in London, referring to an incident in June 2010 and in Singapore, referring to an incident in October 2009. On these occasions you were very late attending important Fuel Oil meetings and were unable to participate in the meetings because you were so hung-over from the nights before. Unfortunately, the Company has reasonable grounds to believe that you did just that in Singapore, and that the reason you did not attend the meetings on Monday 11 October 2010 was because you were in no fit state after a heavy night the evening before. I understand that you were with some of your US colleagues that evening; however they attended the meetings the following day whilst you did not.

There have been a number of incidents in the past where your performance, conduct and attendance have fallen short of the required standard due to alcohol related issues. The Company has tried to support you, and tried to deal with those matters informally. However, it is the Company's view that the incident in Singapore justifies summary dismissal without prior warning and, in the light of your past behaviour, the Company believes this is the appropriate sanction.

You have the right to appeal your dismissal. If you wish to appeal, you must do so in writing to me within five working days from the date of this letter, stating your grounds of appeal in full. If you do appeal, we will arrange for your appeal to be heard by Andrew Gibson and you will have the right to be accompanied, if you wish, at the appeal hearing by a fellow worker or trade union official of your choice."

13. Mr. Kearns did not exercise that right of appeal.
14. In this action Mr. Kearns claimed, in the Amended Particulars of Claim, this relief:-

"(1) The equivalent value of the 25 Glencore shares at a date to be elected by myself and/or fixed by the Court;

(2) A declaration that I was wrongfully dismissed.

(3) Damages or compensation as pleaded hereinbefore, together with interest."

15. The "Damages or compensation as pleaded hereinbefore" appeared to be what was set out at paragraph 44 of the Amended Particulars of Claim, namely (omitting words struck through):-

"44.1 Salary for notice period;

44.2 Other benefits during notice period;

44.3 Loss of value of the 25 Glencore shares, which were subject to the EBT.

44.4 Loss of the bonus that would have been paid to myself for the 2010 financial 2010 [sic]

44.5 All salary and benefits that I would have been employed during the dismissal process that should have but was not followed.

44.6 Appropriate damages to reflect the emotional and personal stress and strain, reputational damage that these circumstances have caused to myself and family."

16. For much of the conduct of this action, but not at the trial, Mr. Kearns acted in person. He obviously did not appreciate that damages such as described in paragraph 44.6 of the Amended Particulars of Claim are not recoverable as a matter of law for wrongful dismissal. What paragraph 44.5 was directed at was obscure. On the basis that Mr. Kearns was dismissed without the notice for which clause 9.2 of the Contract provided – in this instance one month's notice – what he was entitled to by way of compensation was the amount of the salary which would have been due to him, had the proper notice been given, and compensation for loss during the notice period of the other benefits to which he was entitled – essentially life assurance and long term disability cover. Those elements of loss seemed to be covered by the claims set out at paragraph 44.1 and paragraph 44.2. Mr. Kearns had no entitlement, under the Contract, to any bonus, so the justification alleged for the claim in paragraph 44.4 was elusive. His 25 share options would not have vested, even had he been given one month's notice of dismissal on 13 October 2010.
17. Mr. Kearns appeared to recognise that he could not claim loss of the value of his 25 share options as damages for alleged wrongful dismissal, for in the Amended Particulars of Claim he contended for a separate entitlement to the benefit of the share options. At paragraphs 6 and 7 of the Amended Particulars of Claim, omitting words struck through and underlining, he advanced these alternative claims:-

"6. I will contend that it was an implied term of the Contract of Employment with the Defendant that, if I entered into employment with the Defendant I would thereby become entitled to 25 Glencore shares having a total value of between US$750,000 – US$800,000 which would vest absolutely and /or have the effect of shares that would vest absolutely in January 2010. Such term is to be implied as representing the obvious, but unexpressed intention of the parties and/or as spelling out what the contract actually meant, and/or spelling out in express words what the contract read against the totality of the relevant background would reasonably be understood to mean.

7. Further and alternatively, having regard to the totality of the facts and circumstances as set out above it was the mutual intention of myself and the Defendant such that it was a collateral contract with the Defendant that, if I entered into employment with the Defendant he would thereby become entitled to 25 Glencore shares [having a total value of between US$750,000 to US$800,000] that would vest absolutely and/or have the effect of shares that would vest absolutely in January 2010."

18. Although expressed to be a further or alternative claim, what Mr. Kearns contended in paragraph 7 of the Amended Particulars of Claim appeared simply to be putting a different label on the matters relied upon in paragraph 6. He did not contend that he had any entitlement under the Contract to have the 25 share options vest in January 2010 or some other date earlier than 13 October 2010. He did not contend that it had been expressly agreed between him and anyone on behalf of Glencore that he was to have 25 share options which vested in January 2010 or on some other date earlier than 13 October 2010. What he did do was to assert that he had had discussions, principally with Mr. Alex Beard, Global Head of the oil business at Glencore, prior to agreeing to become employed by Glencore, about the issue of share options and that out of those discussions the intention pleaded in paragraphs 6 and 7 of the Amended Particulars of Claim emerged, not expressly, but impliedly.
19. It is obviously possible, as a matter of law, for a collateral contract to be made expressly between parties to another contract. However, a contract cannot be created solely by implication. Implication can only be relevant if parties have actually made an agreement into which it is contended something should be implied. The modern approach to the exercise of whether an unexpressed term should be implied into an agreement was explained by Lord Hoffmann, giving the advice of the Privy Council, in Attorney-General of Belize v. Belize Telecom Ltd. [2009] 1 WLR 1988. At page 1993 Lord Hoffmann said this:-

"16. Before discussing in greater detail the reasoning of the Court of Appeal, the Board will make some general observations about the process of implication. The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see Investors Compensation Scheme Ltd. v. West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument.

17. The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls.

18. In some cases, however, the reasonable addressee would understand the instrument to mean something else. He would consider that the only meaning consistent with the other provisions of the instrument, read against the relevant background, is that something is to happen. The event in question is to affect the rights of the parties. The instrument may not have expressly said so, but this is what it must mean. In such a case, it is said that the court implies a term as to what will happen if the event in question occurs. But the implication of the term is not an addition to the instrument. It only spells out what the instrument means."

20. As I have noted, the Contract did not mention share options at all. Bearing in mind that the share options granted to Mr. Kearns were not granted by Glencore, but by Appleby, there was no obvious necessity for the Contract to mention share options. The provisions as to the period which an employee with the benefit of share options had to serve before having a vested right to those share options were to be found in the profit participation agreement dated 1 October 2007. No doubt those provisions were capable of being altered by variation to that agreement made between the parties to it. However, they could not, in law, be altered by an agreement between Glencore and Mr. Kearns.
21. There was no conceivable justification for the implication into the Contract of the term that his share options should vest in January 2010 or at some other date earlier than 13 October 2010 for which Mr. Kearns contended, whatever discussions he might have had with Mr. Beard or any other employee of Glencore.
22. Mr. Kearns's claims in relation to the share options were bound to fail, and so I struck them out of the Amended Particulars of Claim and dismissed them at the start of the trial, having heard submissions from Mr. Ahmed Miah, who appeared on behalf of Mr. Kearns, and Mr. Jonathan Cohen, who appeared on behalf of Glencore, as to whether that was the appropriate course to take. The trial then continued only on the issues whether Mr. Kearns was wrongfully dismissed, and, if so, to what damages he was entitled.

Whether the summary dismissal of Mr. Kearns was in breach of the Contract

23. At paragraph 25 of the Re-Amended Defence it was averred on behalf of Glencore that:-

"The sole reason for the Claimant's termination was his behaviour during APPEC Week, following on from and in the context of his prior misconduct."

24. The alleged prior misconduct was set out at paragraph 17 of the Re-Amended Defence as follows, omitting words struck out and underlining :-

"The Claimant committed serious alcohol-induced misconduct in Singapore over the weekend of 8 October 2010. This followed a history of prior misconduct of a similar nature, throughout which the Defendant attempted to support and assist the Claimant to improve his performance. By way of example:

(a) In June 2009, the Claimant was scheduled to attend a suppliers' meeting in Rome. The Claimant drank so much the night before the meeting that he was incapable of attending it and did not do so.

(b) The Claimant was regularly late for work. The Defendant suspected that this was due to alcoholism. As a result of this, and the Rome incident described in paragraph (a) above, a number of senior members of staff of the Respondent including Mr. Beard spoke to the Claimant in an attempt to give him guidance. However, the lateness continued.

(c) By September 2009, given the absence of any improvement in the Claimant's timekeeping and his apparent continuing abuse of alcohol, the Defendant decided that medical assistance might be necessary. In the circumstances, the Defendant made its company doctor available to the Claimant and also paid for the Claimant to see a Consultant Psychiatrist at the Capio Nightingale Hospital, Dr. Shanahan.

(d) On 15 September 2009, the Claimant was warned that any further instances of lateness or absence from work by reason of alcohol abuse would result in his dismissal.

(e) In October 2009, the Claimant was due to attend and present at a meeting of the Defendant's fuel oil traders in Singapore. The Claimant was incapable of doing so as a result of his consumption of alcohol on the previous evening. He eventually attended late, after multiple telephone calls from his manager and even then without the necessary slides for his presentation.

(f) In June 2010, the Claimant was again due to attend and present at a meeting of the Defendant's fuel oil traders in London. The meeting was to take place on a Saturday, with a social event on the previous Friday evening. The Claimant became so drunk at the social event that he was incapable of attending the Saturday meeting on time, and when he eventually arrived very late at the meeting he was unable to effectively participate in it.

(g) In April 2010 the Claimant had a particularly bad episode of alcohol-induced lateness. Over a period of days, the Claimant arrived late every day, on some days as late as noon. On one day he did not turn up at all. In respect of that day, the Defendant understands that the Claimant told a colleague that on the previous evening, he had become involved in a late-night incident that concerned alleged damage to a taxi which he said subsequently resulted in him having to appear in a criminal court."

25. The behaviour of Mr. Kearns alleged during APPEC Week was pleaded at paragraphs 19 and 20 of the Re-Amended Defence, again omitting words struck out and underlining:-

"19. … It is admitted that the Claimant attended a dinner meeting on the evening of Saturday, 9 October 2010 and further meetings on Sunday, 10 October 2010 during the Asia Pacific Petroleum Conference in Singapore ("APPEC Week"). APPEC Week is an annual industry event of major commercial significance. During the flight to Singapore, the Claimant assured his manager that he would not behave on this event in the same way as he had on previous occasions, i.e. by abusing alcohol and being unable to participate any further. It is admitted that on the evening of Sunday, 10 October 2010 the Claimant consumed alcohol, but with colleagues from the Defendant's US office rather than clients. It is denied that the Claimant was "in no way impaired by it". It is admitted that it was expected of the Claimant that he was "sufficiently sober, in order to be able to recall the information imparted to him". The Claimant was not, nor was he capable of attending meetings on Monday, 11 October 2010 as set out below.

20. … It is denied that the Claimant was not aware of the two meetings that were scheduled to take place on Monday, 11 October 2010. It had been decided during the meetings on Sunday, 10 October 2010 that the further team meeting would take place and the Claimant was present when such agreement was reached. The other meeting was already on the pre-distributed agenda. In fact, the Claimant failed to attend these meetings because he had become so drunk on the previous night that he was incapable of doing so. The meetings were business critical. A number of phone calls were made and e-mails sent to the Claimant to ascertain his whereabouts but none were answered; the Defendant infers that this was because the Claimant was either incapable of doing so as a result of his alcohol consumption, or he deliberately refused to answer because he had no good explanation for his absence. All of the Claimant's US colleagues who had drunk with him on the previous evening attended the meetings."

26. The conclusion for which Glencore contended by reason of these allegations was pleaded at paragraph 28 of the Re-Amended Defence:-

"… The misconduct described in paragraph 19 and 20 … of this Defence (either individually or when viewed against the background of the matters set out in paragraph 17 of the Defence) constituted a breach of the Implied Terms and/or the Gross Misconduct Provisions by the Claimant, was repudiatory in nature and the termination of the Contract without notice by the Defendant marked an acceptance of that repudiatory breach. Alternatively the Defendant was entitled to summarily terminate the Contract in accordance with the Gross Misconduct Provisions."

27. In his Amended Particulars of Claim, at paragraph 36, Mr. Kearns contended, simply:-

"There were no grounds whatsoever for deciding that … I was guilty of gross misconduct which justified summary dismissal and the summary termination of my contract without notice was a breach of contract."

28. That plea, had it stood alone, simply imposed upon Glencore the burden of justifying the summary dismissal of Mr. Kearns.
29. However, at paragraph 33 of the Amended Particulars of Claim Mr. Kearns asserted that the real reasons for his dismissal were different from those upon which Glencore relied. Omitting words struck out and underlining, what he pleaded was:-

"In fact I believe that the real motivation behind removing me from Glencore is that:

33.1 I did not always agree with the commercial decisions of certain colleagues including Mr. Fidele [sic, the gentleman's surname was in fact Fedele].

33.2 The timing of the dismissal is such as to attempt to remove my entitlement to shares in an Employee Benefit Trust at a time when the Defendant was being publicly floated and which represents a significant commercial advantage to the Defendant.

33.3 The Defendant wanted a scapegoat for losses suffered by its fuel oil team [during the Summer of 2010, due to ill-advised, commercially incompetent, and illegal trading activities."

30. I did not need to be concerned, as such, with the question of what actually was, or were, the reason or reasons for the summary dismissal of Mr. Kearns. The effect of the decision of the Court of Appeal in Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch D 339 is that the proper focus of my attention was whether there was in fact a proper reason for the summary dismissal of Mr. Kearns on 13 October 2010, rather than whether the reason or reasons given was or were correct. The relevance of a finding that the reason or reasons given was or were not correct was likely to be that no proper reason for summary dismissal was made out. If the reason or reasons given were proven by the evidence and, in itself or themselves, justified the summary dismissal of Mr. Kearns, it was immaterial that the decision to dismiss might have been influenced by other factors which would not, in themselves, have justified summary dismissal.
31. According to his evidence, the decision to dismiss Mr. Kearns summarily was made by Mr. Beard. In his witness statement dated 1 August 2013 made for the purposes of this action Mr. Beard explained the circumstances in which he came to make his decision:-

"46. I attended the APPEC meetings in Singapore on 8-11 October 2010. APPEC is a week of global worldwide Traders meetings for all companies involved with oil. All the main Traders, producers, and end-users attend. It is the biggest oil event for Asia and happens once a year in Singapore. It is an important opportunity to meet customers and suppliers. We also use APPEC week to hold internal Glencore meetings with the global oil teams as it is attended by Traders from all the regions. Yannick [Fedele] will address the schedule for the Fuel Oil Team in his statement.

47. I saw the Claimant over the weekend but only as part of a bigger group. From the schedule … I would have been at the Glencore Analysts' Presentation during Sunday afternoon and the group dinner in the evening. I think I also attended part of the Global Fuel Oil Team meeting in the morning. I did not see the Claimant after the dinner on Sunday night, and I did not see him at all on Monday 11 October. I attended the Glencore cocktail party on Monday evening, and I understand that the Claimant was also there for a couple of hours, but I don't recall seeing him. Monday was a normal working day in Singapore; people would be expected to be in the Singapore office, unless they were out meeting counterparts.

48. I was not made aware of the Claimant's non-attendance at the office and meetings on Monday until I returned to London on Wednesday morning. I arrived on an early flight from Singapore and went into the office as normal. I was told by Yannick at some point during Wednesday that the Claimant had not attended any of the meetings on Monday, or the office in Singapore as he was supposed to. Yannick told me that the Claimant's non-attendance was because he had been out and got drunk and so had been hung over on the Monday. We discussed the fact that this had happened a number of times in the past. The Claimant had got drunk and let us down again after all the support and the warnings we had given him not to do this. The APPEC meetings, combining industry and team meetings, were important and it was not acceptable for the Claimant to fail to attend the meetings or fail to attend the office on a working day. Yannick's word on what had happened in Singapore was enough for me. I did not feel the need to investigate further. If Yannick said that the Claimant did not turn up, then he did not turn up. It was clear that Yannick had not been given an acceptable explanation by the Claimant. I was satisfied that the company could not rely on him to fulfil his duties. I told Yannick that I was going to fire the Claimant, and he agreed that it was time for the Claimant to go.

49. I called Rosemary [Loving] and told her what I intended to do and that I would send the Claimant up to see her after I had spoken to him. I did not speak to anyone else about the Claimant or what I intended to do. At about 5 or 6 pm I called the Claimant into my office and asked him where he was on Monday. The Claimant said that he was a bit tired and had crashed out all day as he had been out the night before with people from the business. I said that it was my understanding that he had got drunk, whether that was with Glencore employees or whomever, and he did not attend the meetings on Monday because he was still drunk or hung over. The Claimant said that he was not the only one, he had been out with Glencore employees from the US, Daniel Pechman and Alpman Ilker. The Claimant's main defence to the situation was that he was not the only one, which in my view was an admittance that he was in the wrong for not having attended the Monday meetings. I did not think this was a satisfactory explanation so I told him he was dismissed. The Claimant said "fine", "great", and walked out. I think he made some ironic shrugs/grunts too. I then called Rosemary to tell her what had happened but, whilst I was on the phone, I saw the Claimant coming back to see me, this was about 30 seconds later. I ended my call and the Claimant came back into my office. The Claimant said "what about my shares?". I said "what about them?" I asked if he had been here for 2 years; the Claimant said no, so I said that they would not have vested. The Claimant said nothing and left. From my recollection, this was the only time that the Claimant mentioned his shares to me since our telephone conversation back in January 2009."

32. On Mr. Beard's account he relied upon information provided by Mr. Fedele, the Head of Fuel Oil at Glencore, who was the line manager of Mr. Kearns, in deciding to dismiss Mr. Kearns summarily. Mr. Fedele was called as a witness at the trial on behalf of Glencore. In his witness statement dated 31 July 2013 Mr. Fedele gave this account of the events leading up to, and in, Singapore in the period 8 to 11 October 2010:-

"33. I attended APPEC 2010 in Singapore from 8-11 October 2010 along with Alex [Beard], the Claimant, Wei [Kwan] and a number of other Glencore traders from around the world.

34. A combined meeting schedule was sent out in advance to the Claimant, Wei and I on 23 September … and further updated on 6 October … and it was updated again on 8 October to produce a final version of the schedule which is at … The final schedule was included in our welcome packs which we were given when we arrived at our hotel in Singapore. Also included in this pack was a personalised letter listing activities over the weekend and office proximity cards including the access card for our Singapore office where all the meetings took place. The Claimant and I both stayed at the Marina Bay Sands Hotel. The Claimant would also have received his welcome pack containing the final schedule of meetings. Since I saw the Claimant at some of these meetings, he must have received his pack.

35. Our travel itineraries … confirm that the Claimant and I took the same flight to Singapore, which was scheduled to arrive at 17.35 on Saturday 9 October. I recall that on the flight the Claimant spoke to me about what happened last year at APPEC, and in London at the Global Fuel Oil team meeting in June, and he said he was going to behave and not do the same (i.e. turn up late/not at all/in bad shape because he had been out the night before drinking). When the Claimant and I arrived in Singapore, I think we went straight to the Fuel oil team dinner (see below). I had a drink afterwards but then left as it was a 9.30 am start the next day and I was tired.

36. In advance of the meetings, on 27 September I had organised by email … an internal Glencore Global Fuel Oil Team dinner (on Saturday night 9 October) and a Global Fuel Oil Team meeting for Sunday 10 October to discuss usual topics but also strategy for the coming months. On 6 October Karen Ng, based in Singapore who was organising the logistics and hotels/venues, also sent a consolidated schedule (and contact numbers) for the Global Fuel Oil Team … It confirmed the team dinner on Saturday 9 October at 8 pm at the Grand Hyatt and the programme for us for Sunday 10 October. The Global Fuel Oil Team meeting was originally planned for 9.30 am but changed to 11 am because 9.30 am was too early for the US guys. [In] This schedule is reflected the combined meeting schedule …, except that the Analysts' presentations on the Sunday afternoon were pushed back slightly to 2 pm.

37. So, on Sunday morning we began our Glencore Fuel Oil team meeting at 11 am. My earlier email to the team on 27 September … explains what that meeting was about. Fujairah was an important topic as it was not making any money and so we were in the process of working out the plan for next year. This would mean needing to rent out (or sub-let) the tank until December so this was something which needed to be discussed. The Claimant was more than an hour late to the meeting. He missed a big part of it and was not in good shape at all. Alex and Mark Catton came at the end of the meeting to hear the conclusions. The Fuel Oil meeting process is an on-going process during APPEC week, so we agreed to reconvene the meeting the following day at lunchtime. The meeting was followed by lunch and then the Glencore Analyst presentations from 2:00 pm until 6:00 pm. At the Analyst presentation there were about 60 Glencore employees from the US, Beijing, Australia, Asia and all management. This was followed by dinner with all the Glencore Traders from different teams. I remember that all the teams were mixed up around different tables, they also mixed the desks, so Fuel Oil guys could be sitting with Crude Oil guys, for example. I stayed for dinner and maybe a drink and then went back to the hotel. I did not know what the Claimant did after that but I now understand that he stayed out with Daniel Pechman and Alpman Ilker, Glencore Crude Oil traders from the US.

38. The following day, Monday, the Claimant was due to attend a meeting with Bakri at 10 am. He had been invited to this meeting by email on 1 October by Sukhjeet Sekhon, one of the Fuel Oil Traders in Singapore … The Claimant's name appears against this meeting both on the combined meeting schedule dated 6 October …, and on the final version of the schedule … The Claimant was the one from my Fuel Oil team to attend that meeting as it was about his area of the business, and Bakri is a counterparty. After we hired the Claimant, we essentially put a new region together involving both him from London and one trader from Singapore. It was an independent project. We rented tanks in Fujairah and started running operations in that area. Bakri was the most active player in that region, so it was an important meeting for the Claimant to attend. In fact the Claimant did not attend the meeting with Bakri at 10 am, which I did not discover until I saw the Claimant later that day.

39. The Global Fuel Oil Team met up again on Monday lunchtime, which we had planned the previous day that we would do. The Claimant knew about this meeting because we had organised it at the end of the meeting the previous day which the Claimant attended. I recall that we had agreed to meet at lunchtime and probably the time was confirmed but not the venue. I received an email from Kim Weng, one of the Fuel Oil Traders in Singapore, at 11.28 am local time confirming the meeting was to take place at the Golden Peony, Conrad Hotel at 12.30 pm local time … Kim sent this email to the whole team, including the Claimant. I got a little confused and emailed Kim back about 10 minutes later saying I would not be able to be there until 1 pm … I then sent a further email to Kim within a few minutes apologising and confirming that I would be there at 12.30 pm … I copied these emails to the whole team including the Claimant. All of the people who had attended the team meeting the day before showed up, except the Claimant. Wei was texting the Claimant to see where he was even without me asking him to. Wei said he was used to doing this; he felt like his mother sometimes. Based on his previous form, our assumption was that the Claimant was late probably because he was drunk and had a late night, but we did not have any facts or details at the time. No one could confirm where he was or where he had been and with whom. We did not hear anything from the Claimant at all, either by text, phone or email. After the meeting had finished I emailed the Claimant asking where he was …, but got no response. My team know that we are expected to be at the office in Singapore unless we are at meetings outside with counterparts, but I did not see the Claimant in the office at all that day. My firm view is that the Claimant knew that he was supposed to attend the Bakri meeting and the reconvened Global Fuel Oil Team meeting and that he knew he should be in the office other than when he was in those meetings.

40. I went back to the hotel about 6/7:00 pm. I packed up my things in preparation for the Glencore cocktail party at 8:00 pm because I would be leaving straight to the airport from there. I met up with Damon Vance for about an hour before the party was due to start. We were walking down the hallway of the Hotel and we saw the Claimant getting out of the lift. He was coming down from his room. I asked the Claimant what he was doing, and where he had been because there had been meetings. The Claimant said he had been in his room, had only just woken up, he didn't realise that there were any meetings. I realised that this meant that he had also missed the Bakri meeting earlier in the day too. I said 'ok!'. I did not mean that it was ok for the Claimant to have stayed in his room and missed the meetings and not attended the office on a working day. I said ok because I had nothing else to say to him. For me, the tone of what I said was final, namely: 'Ok! We are done!', as I thought that this was so serious that Alex would almost certainly end his employment. I do not recall the Claimant apologising and I did not accept any kind of apology. I was angry and upset. Damon Vance, an analyst from the US, said he had never seen me like that. I was not yelling or shouting, I was simply very angry.

41. I do not remember talking to anybody at the cocktail party about the Claimant. I was too busy talking to clients. The Claimant and I both flew back to London that evening but on different flights. We each arrived on Tuesday morning and went to the office. I understand from the Claimant's email to Daniel Pechman when he got back to London, … that he had some drinks with Scott Harbert on the plane.

42. Gerry [O'Shea] told me that he spoke to the Claimant on Tuesday and the Claimant told him that he didn't think the meetings on Monday were important and it was more important for him to be out the night before with clients and that was when the important stuff was done, showing Glencore's face in the market. However, the Claimant gave me the impression that he knew that he should have been at the meetings on Monday.

43. Tuesday and Wednesday were normal days in the office. There was an impromptu meeting with the team to update them on what had happened in Singapore, as Gerry and Glen had not gone to Singapore, but this did not refer to any incidents with the Claimant. I did not speak to the Claimant about the incident in Singapore but I spoke to Alex on Wednesday morning. In the position of Global Head it was not appropriate to talk to others about this, and it was right to talk to Alex.

44. I gave Alex the details of what had happened, as described above. We also went back over the previous months. We agreed that we had given the Claimant a lot of chances but it was now over – this was too much. It was a joint decision. If Alex had asked the others (so Gerry, Glen and Wei) they would have said the same. Alex said fine, ok, he was going to have a meeting with the Claimant and he would talk to him and fire him.

45….

47. The Claimant's behaviour at APPEC 2010 in Singapore was the last straw. He had been told this was unacceptable so many times. His alcohol problem affected his work from very early on. It never stopped. This was the reason he was fired. It was not a decision relating to his performance in the business, and it was not because of any alleged disagreement about commercial decisions."

33. Mr. Fedele also dealt in his witness statement with his understanding of the whole course of the employment of Mr. Kearns by Glencore:-

"20. As early as July 2009, when the Claimant had only been with us for 2 months, I had to warn him to be in the office by 9 am, which I did by email on 22 July, after the Claimant had emailed me yet again to say he was going to be late … The documents show that the Claimant had emailed me on 8 separate occasions prior to that because he was going to be late, and those emails dated 15 May, 19 June, 25 June, 26 June, 9 July, 13 July and 17 July are at … The Claimant also sent a number of texts, so there would have been more days that he was late than those emails show, and this was the case throughout his employment. The way it usually went was that he would text or email to say that he would be there in 20 minutes, for example, then I would get another text to say that he would be another hour, and then he might turn up another hour later. As well as my email to the Claimant on 22 July, there were other warnings verbally too about this. It is possible in London to have commuting problems and to be late on occasions but this was not the real reason for lateness most of the time. When I spoke to the Claimant about it, he told me it was because he was hung over and had drunk too much the night before. He said that he was having some issues with the trains and was going to try to buy a flat in London to give him an easier commute. He didn't show up for up to two hours sometimes, and said he was on his way or was coming but that was not true because he didn't show up until much later, or at all, like in Rome which I will talk about below. To me it was clear when the Claimant was hung over because he always had red eyes and trembled a lot.

21. In June 2009 there was a big problem. Every year Galaxy an established Italian trading company organises a European fuel oil meeting. The meeting in June 2009 was in Rome and also involved a tour of Rome, a cocktail party and a dinner. About 60/70 mainly European fuel oil traders attend. I wanted the Claimant to come to introduce him to the clients and the suppliers. Also, Glencore had an important contract with a supplier Total ERG, a refinery. On 5 June I had agreed to go and see the manager of the refinery for a lunch meeting. This had been planned in advance and the Claimant knew about the programme which I had emailed to him on 4 June and which he had acknowledged … We were staying at the same hotel, and had also flown together. We arranged to meet at the entrance of the hotel at noon and go to meet the supplier by taxi. I was downstairs but the Claimant was not there. I called him but he didn't answer. I also texted him but got no response. I think I might also have emailed him asking where he was. I left after waiting 20-25 minutes. After I had been in the taxi for about 30 minutes, the Claimant called me and said that he would join me. I see that I then sent him the address by email so he knew where to go … and the Claimant replied that he was on his way. I met up with the supplier as planned. After 45 minutes there was still no news from the Claimant. I texted him again asking him where he was as I was with the supplier waiting to order, it was 2.00 pm already. The Claimant then called and said that he could not attend because he had had a heavy night the previous evening and wasn't feeling well. He said that he went back to the hotel drinking with some customers he had met at the dinner. He stayed out very late and got very drunk. The Claimant missed the meeting with the supplier and I had to apologise to the supplier for keeping him waiting and for the Claimant's non-attendance.

22. I spoke to the Claimant about this afterwards. He said he was with a guy from Chemoil and they drank all night in the bedroom in the hotel and he was too hung over to attend the meeting. I told him that it was not professional and totally unacceptable. The Claimant said he was sorry and it would not happen again. This was the first time this had really happened so I gave him the benefit of the doubt. I wasn't happy but I was prepared to accept that these things can happen once. I mentioned it to Gerry O'Shea but I didn't tell Alex Beard at this stage.

23. When I was on holiday in August 2009 I received an email from Gerry on 18 August saying that the Claimant had been late 3 times since I was away, and on the day Gerry emailed me it was 12.20 pm and the Claimant had not arrived yet … At this point I started not to trust him anymore. It was the wrong kind of start. Trust is crucial in our business. People on the desk can do deals, can talk to counterparts, can access the system – you don't want an unreliable trader within your team. I also didn't want to babysit the Claimant. This is the feeling I had when I emailed Gerry back, and this is clear from my response that day at … I think Gerry spoke to the Claimant, and I may also have spoken to him too. I regarded that a last warning from me on a friendly and informal basis. We told the Claimant that Alex is not going to have patience with him, he won't tolerate this kind of behaviour.

24. On 1 September the documents show that again the Claimant was late because he emailed first thing saying that he had overslept … I emailed back to say that was not good again. He emailed me again around 11 am saying "fair enough" and that he was on his way. He did not turn up to the office until 1.30 pm. He had been off sick the week before. I spoke to him about this on 1 September when he eventually showed up. He said he was sorry, he realised he was screwing up. He realised that he had a great opportunity at Glencore but admitted that he drank a lot, and alluded to problems stemming from when he was a kid. He said that he did not go out so much but rather that he would drink on his own, while his family were sleeping, and drink so much that he could not remember anything the day after, particularly on Sunday nights. I think I must have then spoken to Alex about it, which prompted his email to Rosemary on 2 September at …

25. I recall discussing the Claimant with Rosemary Loving, and refer to her note of our call on either 2 or 3 September at … and her witness statement regarding this conversation which I confirm to be correct to the best of my knowledge. I recall that we talked about doctors getting involved. I regarded this as quite a sensitive matter, and wanted to help and show him support. I told the Claimant to speak to HR [Human Resources] and that he needed to find a solution and Glencore would help him do that. The Claimant said he would accept the help and he said he really appreciated it. He said that the company were being very kind and nice. I wanted him to get the proper help he needed. I told the Claimant that I hoped he was going to get help and that I was going to see a change. The Claimant was travelling at this time to Dubai and Singapore mainly. At this stage I think it became a confidential matter for HR to deal with the doctor and counsellor. When we had had our chat on 1 September the Claimant had told me about Sunday nights and how he would drink lots on his own while the family were asleep. The Claimant spoke more deeply with Gerry about the issues he had as a child I think. I told the Claimant that he had a great opportunity here but that he was going to lose it. Speaking as a friend I said he has got a wife, a kid and he is going to destroy his relationships and his family.

26. The Claimant was given support by the company, who referred him to the company doctor and some sessions with a counsellor.

27. On 14 September I emailed Alex and Rosemary to tell them that the Claimant did not turn up to the office until at least 11.30 that day, and he had been to the pub the previous Friday at 1 pm and never came back, even though I had emailed him in the early afternoon about a meeting back at the office he was supposed to attend … It might be acceptable to stay out after a lunch meeting if it was planned and ok-ed in advance, but in this case it was not. I told Alex and Rosemary in this email that I thought the Claimant should be given a final chance, meaning that he should be told that if he was late or absent through alcohol abuse again he would be dismissed. I understand that Rosemary spoke to the Claimant and told him that. I also spoke to the Claimant myself and said that this was his last chance. Alex, the Claimant and I all knew that this was the Claimant's last chance.

28. In November 2009 I went with the Claimant and Wei and others to APPEC meetings in Singapore. APPEC is an important annual gathering of the oil industry and is a good opportunity to meet with counterparts, but it is also important because we hold a Glencore Global Fuel Oil Team meeting, which I have talked about previously. This was the second such meeting for 2009, and the Claimant's first since joining Glencore (he had only attending [sic] the February meeting as an observer). There is an itinerary for the Fuel Oil Team at … which was sent out to us a couple of days beforehand. We work on an overall programme for about a month beforehand, organising meetings with counterparts. There are also invites to cocktails parties etc. We try and put the schedule on one piece of paper, though sometimes it doesn't have everything in it, such as for example, if you are just meeting an old friend from the industry for a coffee. The blanks can be other meetings. A composite internal schedule is helpful for us so we can see who is meeting who and if there were meetings which we wanted to join. It is also helpful for management to see what everyone is doing. From what I remember, some of the team arrived on the Saturday and had dinner together. I don't think I was there and didn't arrive until the following morning. The Global Fuel Oil Team meeting took place that day. These meetings are always quite difficult because of jetlag, but everyone knows that. An item for discussion was the Claimant's business developing the Arab Gulf market which was linked to the Singapore market. The Claimant was about an hour or an hour and half late to the meeting. The guys kept texting him when he was not there on time. They knew there was a problem of him being late all the time. There was a kind of solidarity between the Traders to make sure he was on time. When he did arrive it was clear to me that he was not in good shape. He had red eyes, he looked tired and was almost sweating. He was supposed to make a presentation on VLCC (Very Large Crude Carrier) Arbitrage economics between Europe and Singapore. There was some copy to go with it but it was a ten to fifteen minute presentation. The Claimant just read the paper in front of him, and presented for only a couple of minutes. He was not in good shape to present his project and to convince people about it. He was also expected to contribute to the Glencore Fuel Oil Team meeting, so fully attend, participate and the presentation was on top.

29. I spoke to Alex who attended the end of the meeting. Alex told me that, if it happened again, action would need to be taken as it wasn't acceptable. We had lots of other meetings and business in Singapore so we intended to wait till we were back in London to deal with what had happened with the Claimant. I cannot really answer why we didn't take any action at this stage. I recall that we were short-handed and in that respect we needed him. I told the Claimant again that it was unacceptable and unprofessional, and warned him about being late. I think I was probably more patient with the Claimant than I should have been in hindsight due to our concern for him and his personal problem.

30. In April 2010 Gerry told me that on a day when I was not in the office he had had to send the Claimant home from the office at lunch time because he was in such a bad state. Gerry told me that the Claimant's wife had subsequently called him and told him that the Claimant had been out with a Trader from a client company the night before and had become involved in an altercation with a cab driver and had been arrested and spent the night at the police station. I understand that Rosemary found the charge sheet in the Claimant's desk after he left which is at …

31. In June 2010, there was another Glencore Global Fuel Oil Team meeting in London. The format was the same as the previous meetings which I have talked about, only this meeting was a kind of emergency meeting as I had just replaced Ray Bartoszek as Global Head of Fuel Oil. Ray was still at the company, but it had been a problematic year for the fuel oil group in the US and Ray stepped down as overall head of fuel to focus on the US. It was quite an intense time. We needed to think about and reflect on the business and how to make money. Friday was a working session followed by dinner. Saturday was a full working session. The Claimant asked if he could stay at the Mayfair Hotel where all the other traders from abroad were staying so he didn't have to take the train and risk being late to the meeting in the morning. I would normally not allow that as all the London based Traders were simply going home and coming back to the office as normal. But I said yes, thinking that he would probably be late otherwise. The company paid for his room. On Friday night, I attended the dinner and I think I went for a drink afterwards and then I went home. The Claimant stayed out, I think, with Ray Bartoszek. I remember that I specifically told the Claimant that evening that he better not be late because he would be in trouble with Alex if he was. However, when the Claimant came to the meeting on the Saturday he was so hung-over he did not say a word. The Claimant was supposed to deliver a Fujairah presentation but he didn't deliver it at the meeting.

32. Whilst I was on holiday in August 2010 I heard from Gerry that the Claimant was late a few times. Gerry said that it wasn't until after lunch on one occasion that the Claimant appeared. He recalled that one day the Claimant was so late, and so full of excuses about having overslept and the train being late that Gerry said he emailed to him "why bother"."

34. The account which Mr. Fedele gave in the passage quoted in the preceding paragraph was supported by copies of contemporaneous documents to which Mr. Fedele referred and which were included in the trial bundles at locations which I have omitted in my citation, replacing the references by dots. The contemporaneous documents were, in my judgment, fairly and accurately summarised by Mr. Fedele in his witness statement. Mr. Kearns gave evidence on his own behalf at the trial and was cross-examined. He accepted, with some reluctance, that an examination of the contemporaneous documents showed that he had sent e-mails, usually to Mr. Fedele, on 64 occasions during the course of his employment by Glencore indicating that he was going to be late or absent. Sometimes he offered an explanation – usually that his train was late or that his children were ill – and sometimes he did not. Most of the e-mails which Mr. Kearns sent concerning his lateness or absence related to him being late or absent from the Glencore office in London at which he was based. Mr. Kearns worked for Glencore from 5 May 2009 until 13 October 2010. In that period there were 409 working days. For about one week in four Mr. Kearns worked abroad in Dubai, and he also undertook other travel for the purposes of Glencore. In addition he was entitled to, and took, holidays. Thus the number of working days that he was supposed to be in the London office was something less than 300. Taking into account those occasions, unnumbered and therefore incapable of precise calculation, on which Mr. Kearns sent a text message, rather than an e-mail concerning his anticipated lateness or absence, of which Mr. Fedele spoke, in broad general terms Mr. Kearns was late or absent on at least 20 per cent of the working days when he should have been in the Glencore office in London.
35. In the light of what Mr. Kearns told Mr. Fedele on 1 September 2009, which I think was not really in dispute, the Human Resources function of Glencore became involved in his case. Mrs. Rosemary Loving, Head of Human Resources, was called to give evidence on behalf of Glencore. In her witness statement dated 30 July 2013 she said this about her involvement with the referral of Mr. Kearns to Dr. Grimaldi, a private general practitioner retained by, inter alios, Glencore, and what happened thereafter:-

"31. I was unaware of any issues with the Claimant until I received an e-mail from Alex Beard on 2 September 2009 … saying that his attendance record had become very erratic and that it was alcohol-related. He wanted me to talk to him. He said that Yannick Fedele had the full details. Before taking action, I spoke to Yannick to get a clearer understanding of the situation. My notes from our call are at … Yannick told me about an incident when the Claimant failed to attend a client meeting in Rome and Yannick describes this in detail in his statement. I have reviewed Yannick's statement and agree that this is an accurate description of the incident as he explained it to me. Yannick told me that the Claimant had also often been late for work and he had told him a few weeks before that he had to be in by 9 am. Yannick said that Gerry O'Shea had also told him that the Claimant had been late 3 times whilst he was on holiday, not arriving in the office until around 1 pm on one occasion. My note records the times that the Claimant arrived and left the office from 3 – 21 August, which is information I will have obtained from door receipts (probably for the main building). They showed that the Claimant had been very late into the office on 3, 7 and 10 August. Door receipts are a helpful tool to give me an indication of someone's attendance but I do not rely on them solely without further information and investigation. I now see e-mails from the Claimant to Yannick Fedele on two of these occasions at … to say that he would be late.

32. Yannick Fedele said that the Claimant had been off sick the week before and that he had told him to see a doctor. The Claimant came into the office on Thursday, 27 August and Yannick said he spoke to him about a medical certificate. The Claimant said he would speak to Andrea Hornby. The following Tuesday, 1 September, Yannick said the Claimant e-mailed him at about 9.30 to say he would be late so Yannick replied to ask him where he was but received no reply. He said that the Claimant eventually arrived at 1.30 pm. Yannick felt that this was not acceptable but he wanted to try to help him as the Claimant had admitted that he had an issue with alcohol which would cause him a problem if it continued. I then made a note to call Dr. Grimaldi (see below).

33. I see from my calendar entry at … that I then met the Claimant on 3 September. The note of my meeting with him is at … The Claimant corroborated what Yannick had told me and I felt he was very honest about his situation. He said that he had alcohol issues, explained some of the background of that and told me that he needed help to sort it out. He viewed Yannick as supportive.

34. I made an appointment for the Claimant to see Dr. Barry Grimaldi on Tuesday, 8 September at 5 pm. I refer employees to Dr. Grimaldi for company medicals and also for medical advice when we need to understand how we can best support staff at work or to inform the appropriate course of action in relation to issues at work. In the Claimant's case I was concerned that he had an alcohol problem and therefore required professional help. The Claimant himself admitted to me that he had a problem and, given his apparent determination to sort it out, we wanted to help him with appropriate professional support.

35. I spoke to Dr. Grimaldi before the Claimant's appointment to tell him about the issues at work and also what the Claimant had told me. I don't recall the conversation in detail.

36. I received Dr. Grimaldi's report on 9 September 2009 by e-mail … and by hard copy the following day … Dr. Grimaldi rang me, as he usually does in such situations, to let me know that he had seen the Claimant, to tell me briefly what had happened and that he would send me his report. It may have been Dr. Grimaldi who told me that the Claimant was reluctant for me to get any reports from the psychiatrist to whom he had referred the Claimant. Certainly the Claimant raised confidentiality as an issue later and I remember the Claimant telling me that after his session with Dr. Grimaldi he went home and drank because he had been upset by Dr. Grimaldi's forthrightness.

37. Dr. Grimaldi's report confirmed that the Claimant had told him that he had an issue with drinking which was causing him problems at work. While Dr. Grimaldi told me that his medical tests did not show the Claimant to be unwell due to alcohol use or misuse, he confirmed that the Claimant fulfilled many of the criteria of a chronic alcoholic. He asked the Claimant to stop drinking before a work day, which the Claimant assured him he would do. He also told him that it may be necessary for him to stop drinking completely. He recommended psychiatric support so arrangements were made for the Claimant to see Consultant Psychiatrist, Dr. Shanahan, also Clinical Director for Addictions, at the Caprio Nightingale hospital on 17 September 2009, confirmed in my email to the Claimant at …

38. I was very disappointed to receive Yannick Fedele's e-mail on Monday, 14 September, … saying that the Claimant had gone for lunch the previous Friday and not returned to the office, missing a meeting that he was supposed to attend (Yannick said in his e-mail that he had e-mailed the Claimant at about 3.30 to see where he was.) It also appeared that his lateness was continuing and he did not arrive into the office that day until 11.30, with no explanation other than that he was going to be late. I forwarded Yannick's e-mail to Dr. Grimaldi to keep him updated …

39. I was sorry about this situation because it seemed to me that the Claimant had not taken Dr. Grimaldi's advice at all and was continuing to drink to the detriment of his work. The Claimant was a nice guy, with a wife and young children, and he seemed to be throwing it all away. It is my recollection that he knew he could not continue like this and he knew that he needed to sort himself out. Yet he continued to get drunk and not turn up on time the next day, or even the same afternoon, and it appeared that he had a problem which encroached on his day to day work. Alex asked me to take a firm line and to be clear that the Claimant would be dismissed if it were to happen again.

40. I invited the Claimant to a meeting on 15 September 2009 to discuss his absences the previous Friday and Monday. I offered him the option of bringing a companion to that meeting. Lucy Campion from my team took a note of the meeting which is at … and I believe this to be accurate based on my memory of the meeting. At that meeting, the Claimant apologised for his behaviour and he acknowledged that it was unacceptable. He did not try to make excuses or justify himself and, again, I felt he was very honest with me. I told him that if he were absent due to alcohol abuse again that he would be dismissed. He understood and acknowledged my warning to him. I again tried to be supportive and asked if he wanted to talk about anything privately and made sure that he knew that I would make myself available if he needed anything. I made it clear that Alex was aware of the situation and, having already spoken to Yannick, the Claimant understood that. After the meeting I reported back to Alex by e-mail on 15 September …

41. The Claimant e-mailed me on 17 September 2009 … and acknowledged that he was clear on where he stood and said explicitly that "a repeat of unacceptable absence will result in my dismissal". Having failed to speak to each other on the phone, we then discussed by e-mail his request that Dr. Shanahan's report be kept confidential as he wanted to deal with his issues privately. He said that he would be happy to speak openly with Alex at any time, as he had with Yannick. I agreed because my priority was that he got the help he needed. I also felt that he had been very honest with me up to that point and I believed that he really intended to try to sort himself out.

42. I have now seen Dr. Shanahan's file note dated 18 September [disclosed in this action by Mr. Kearns] … and I have some comments about that. Dr. Grimaldi does not work for Glencore. The discussions we had about confidentiality of Dr. Shanahan's report were not confrontational, as supported by the e-mails at … The Claimant seems to have exaggerated his position within the organisation. He did not have anyone working for him. There are secretaries who work for the whole team. In his case the four product secretaries work for several desks including the Fuel Oil Team. Only Alex has his own dedicated PA.

43. I was informed by Dr. Shanahan by letter on 18 September 2009 … that the Claimant attended his appointment and agreed to attend follow-up appointments. I was not given any other details though.

44. Dr. Shanahan wrote again on 29 October 2009 … to say that the Claimant had failed to attend his next appointment on 28 October. I followed up with the Claimant by e-mail … to see how things were going as I wanted to be supportive. He told me that he had missed his appointment due to a busy trading period at the end of the day and had rescheduled. He indicated that things were going well at work and personally, and acknowledged the support."

36. The evidence of Mrs. Loving was supported by the documents to which she referred in the passage quoted in the previous paragraph, and it was not the subject of serious challenge on behalf of Mr. Kearns.
37. Dr. Grimaldi was called as a witness on behalf of Glencore in relation to what Mr. Kearns had told him. It was not sought to rely upon his medical opinion. With that caveat it is material to notice what he wrote in his letter dated 9 September 2009 to Rosemary Loving:-

"Thank you for asking me to see this pleasant man aged thirty-three who has been working for Glencore for four months. He has previously worked at Trafigura for ten years as an oil trader but I have had no contact with him during this ten year period.

Since joining Glencore he has been late for work regularly. On each occasional [sic] he has been drinking heavily the night before. He estimates his intake as eight pints of beer plus wine. He could be drinking at two o'clock in the morning before a work day. This has led him to come in around twelve midday or one o'clock on four occasions to his reckoning as he felt the need to sober up before presenting himself.

In the past he has always been well. He describes himself as "always a drinker". He has never had any psychiatric input about this. He comes from a terrible dysfunctional family with alcohol and violence rife on both sides. He has been married for one year to his long term partner and they have two children aged three and seven. His marriage appears to be stable and supportive but he tells me his wife is worried about his drinking.

He tells me the drinking is episodic and there are long periods during the week when he is not drinking although he admits to drinking on his own on occasions.

There was nothing abnormal to find on examination and his ECG showed no signs of alcoholic cardiomyopathy. I have sent blood tests off to check his liver and pancreas and I will write again when the results of these tests are available.

Mr. Kearns does not want to stop drinking. I have explained to him that it may be necessary for him to become completely tee total as he fulfils many of the criteria of a chronic alcoholic. I have recommended psychiatric support if his insurance at Glencore will cover this and I will try to speak to you later today to check this point before making the necessary arrangements. I have told him that he will have to stop if his liver shows signs of damage but in the interim implored him to completely stop drinking before a work day. He assures me he will follow this advice but clearly with such a long background of alcohol excess he is going to find this very difficult."

38. It was not in dispute that Mr. Kearns was indeed referred by Dr. Grimaldi to Dr. Shanahan, a consultant psychiatrist who specialises in drug and alcohol addiction. Mr. Kearns attended a consultation with Dr. Shanahan on 17 September 2009. As I have noted, Mr. Kearns disclosed in this action a file note made by Dr. Shanahan of that consultation. The information noted in it was not communicated by Dr. Shanahan to Glencore. Nonetheless, given that, at the trial, Mr. Kearns asserted, at paragraph 54 of his witness statement dated 8 August 2013 that, "I did not and do not consider that I had or have a drink problem and that I would not have told Yannick or anyone else that I did.", and he repeated those assertions in cross-examination, it is material to have regard to some parts of the file note of Dr. Shanahan, not least because in his cross-examination (Transcript Day 3 page 195 lines 24 and 25) Mr. Kearns said, "There is very little that I disagree with in Dr. Shanahan's notes.":-

"Essentially Mr. Kearns has run into trouble at work because of his drinking. Dr. Grimaldi 'phoned before the consultation stating that he felt that Mr. Kearns was likely to lose his job very quickly as a result of his behaviour. I understand that he is not arriving into work till late in the morning or even at lunchtime and it is clear when he does that he has been drinking the night before. Mr. Kearns is against the view that he is a chronic alcoholic and feels that Dr. Grimaldi did not get the full picture.

…

Unfortunately between his last job with Traffic Euro [actually Trafigura] and the current post, he had to take three months gardening leave which saw him sitting at home with nothing to do. This led to heavy drinking and by the time he took up his new job where he has now been for four months, he found the readjustment quite difficult.

He concedes that some of his tendency to drink on his terms is equivalent to the mini rebellion against the figures of authority in his company. He concedes also that his superiors have been quite fair with him and he recognises that one, a Frenchman [Mr. Fedele], is simply very black and white and has some basic rules and regulations that he is right to want filled. Andy believes that he really could do this if he wanted to. Unfortunately last weekend he set out a very good christening party for his brother's child. He got his mother to come from France. All went well [next part redacted in the disclosed document] However both he and his wife went to bed intoxicated and neither set the alarm. He therefore missed work having not meant to. This fuelled their view that he was out of control. He believes he is not.

He does drink at lunchtime sometimes but only with the rest of the team. He sees no reason why he should stop this but is happy to stop drinking with other Clients at other times. He accepts that he has a dominant character and likes being the captain as he always has been.

…

Nonetheless he clearly has a genetic tendency to drink heavily. This has seen him binge drink from time to time and this is where the trouble starts. In terms of quantity he is drinking about 28 to 30 units a week. Unfortunately most of this happens over two nights. He does not get sweats or shakes but he does have a headache and a hangover. He can take or leave a drink if he wants to and does not take an early morning drink. He rarely drinks at work except on the Fridays when the team go out for a lunchtime drink, as mentioned above.

The diagnosis is binge drinking or harmful drinking. ICD Code F10.1. This is because his alcohol is causing trouble in the workplace. I do not think he is showing signs of alcohol dependence. I think he will be able to wheel back his intake and regain control and stop people being worried about him. I feel it would be useful to see him again once or twice more, and he has agreed to this and will make an appointment. There is no need for medication currently."

39. A number of points arose from the file note of Dr. Shanahan. One was that the account of his drinking alcohol which Mr. Kearns gave Dr. Shanahan was entirely consistent with what Dr. Grimaldi recorded him as saying to Dr. Grimaldi, and the accounts of Mr. Fedele and of Mrs. Loving in their respective witness statements of what Mr. Kearns had said to them in September 2009. Another was that Mr. Kearns not only obviously himself had an insight into his problems, but he was given positive advice by Dr. Shanahan, as well as by Dr. Grimaldi. It was common ground that Dr. Shanahan made an appointment to see Mr. Kearns again on 28 October 2009, but that Mr. Kearns did not keep that appointment, or seek any further assistance in dealing with what he himself recognised was a tendency on occasions each week to consume alcohol to excess, with the consequence that he arrived at work late.
40. In cross-examination Mr. Kearns was asked specifically about the levels of alcohol consumption recorded in Dr. Shanahan's file note. The relevant exchange was at Transcript Day 3 page 194 line 3 to page 195 line 7:-

"Q. Let us carry on. Bottom hole punch on the page: "None the less, he clearly has a genetic tendency to drink heavily. This is seen in binge drink from time to time and this is where the trouble starts. In terms of quantity he is drinking about 28 to 30 units per week. Unfortunately most of this happens over two nights." That is an accurate report of what you told the doctor, is it not?

A. That would tie in with the … yes. I mean, I have never hid behind any kind of allusion [sic] that I did drink, that occasionally I was late due to alcohol-related issues, which were basically sometimes caused in part to my job and drinking associated with the job and sometimes privately … I have been very open and very honest about that. The times where you referred to earlier that there was no excuse made, well, that is because there was no excuse made. It was not because I was trying to hide behind something. Okay? So the drinking and the honesty regarding drinking is out there. I am not contesting that.

Q. Mr. Kearns, it is not because …

A. I am not contesting what you say. I did drink sometimes to excess. It was not highlighted to me that it was a problem until it was highlighted to me that it was a problem.

Q. This is very helpful, Mr. Kearns. Let us just check that you and I are in agreement about this. What Dr. Shanahan says is that the 28 to 30 units you were drinking a week was mostly over two nights. Do you accept that? That is what you told the doctor?

A. I will take it. I do not remember exactly, but I do not contest it."

41. In the immediate aftermath of his consultation with Dr. Grimaldi, and before he saw Dr. Shanahan, Mr. Kearns was involved in two episodes which were, to say the least, unfortunate.
42. On 11 September 2009 Mr. Kearns went out to a public house, The Grapes, at lunch time and never returned to the office, despite a request from Mr. Fedele that he do so. At the time, though not in his evidence at the trial, Mr. Kearns seemed to recognise his fault. At 12.48 hours on 12 September 2009 he sent an e-mail to Mr. Fedele, copied to the other traders on the Fuel Oil desk, saying:-

"I'm sorry guys, it's not good enough and it won't happen again."

43. 11 September 2009 was a Friday. The following Monday, 14 September 2009, he was late arriving at the office, not turning up until after 11.30 a.m. That event caused Mr. Fedele to report the circumstances to Mr. Beard and to Rosemary Loving. That notification resulted in a meeting being arranged on 15 September 2009 between Mr. Kearns and Mrs. Loving.
44. While the contents of the file note of Dr. Shanahan were unknown to Glencore until disclosure in this action, Mr. Kearns agreed (Transcript Day 3 page 178 lines 2 – 6) that this paragraph of the note of the meeting on 15 September 2009 with Mrs. Loving was accurate:-

"Rosemary informed Andy that if he is absent through alcohol abuse again then unfortunately he will be fired. Andy understood this and confirmed with Rosemary that his first appointment with the psychologist [sic] is on Wednesday. Rosemary asked if there was anything that he would like to discuss with her in private but he said it was not necessary for me [the note taker] to leave the room. Andy said that he understands the procedures we are taking and he also apologised for his absences. However, he informed Rosemary that he travels from Kent each morning and he wanted some clarification as to what would happen if he was genuinely late due to factors beyond his control. He said that he would not want to go for the wrong reasons. Rosemary said that she has no reason to mistrust him, considering his honesty to date."

45. Mr. Kearns was asked about the events in Rome in June 2009 of which Mr. Fedele spoke at paragraph 22 of his witness statement. This exchange took place (Transcript Day 3 page 76 lines 6 – 15):-

"Q. … Mr. Kearns, it does not matter to me whether you were with a client or not, but you drank all night in the bedroom of your hotel and you were too hungover to attend the meeting. That is what you told Mr. Fidele [sic], is it not?

A. Correct

Q. And it is the truth, is it not?

A. I was with a client, yes, trying to secure a piece of business. Subsequently, the business was conducted. We got the contract and I got a pat on the back from my boss for concluding the deal."

46. That seemed to me to be a fairly clear admission, but Mr. Kearns then tried to pull back on it (Transcript Day 3 page 76 line 18 to page 77 line 16):-

"Q. But I do not think what Mr. Fidele was expecting you to do was to go out, or indeed stay in your hotel room, and get so drunk that you were incapable of functioning the next day by lunchtime.

A. I was not incapable of functioning. I was quite able. I actually communicated to Mr. Fidele that day.

Q. You just accepted, Mr. Kearns, that you told Mr. Fidele that you were too hung over to attend the meeting. So you were incapable, were you not, of attending that meeting?

A. I was not supposed to be at that meeting because it was more important to have concluded the deal, which we did the night before.

Q. You just accepted, Mr. Kearns, the accuracy of what I put to you. You did not say to Mr. Fidele, "Well, I didn't come to the meeting because I was not expected to come to the meeting." You said to him, "I was too hung over to attend the meeting", did you not?

A. Correct, having been with …

Q. Therefore, Mr. Kearns, you were not saying to him, "Why on earth are you asking me about this meeting? I wasn't supposed to be there in the first place." What you were saying to him was, "I did not come because I was too drunk". Yes?

A. No."

47. Where the evidence of Mr. Kearns ultimately came to rest was (Transcript Day 3 page 78 lines 8 – 11):-

"A. I thought you said that I was too drunk to attend.

Q. Let us have too hung over to attend, if that makes you happier. That is right, is it not?

A. Correct."

48. Mr. Cohen asked Mr. Kearns about a specific instance of lateness getting to work which occurred on 24 September 2009. That instance, at least, Mr. Kearns admitted was by reason of the consumption of excessive amounts of alcohol (Transcript Day 3 page 98 lines 13 – 20):-

"A. I think this was the time which is referenced where we failed to set our alarm clock and we had been drinking the previous evening, and we basically ran naturally late due to a late night where alcohol was involved and failing to set one's alarm. So I would be at this point accepting that that is possibly that day.

Q. So you admit this one?

A. Yes, I admit that."

49. At Transcript Day 3 page 112 lines 13 – 16 Mr. Kearns accepted in terms that, "there is sustained lateness" demonstrated by the material relied upon on behalf of Glencore, but contended, "it was accepted … because I made money and performed well."
50. What looked like a particularly bad instance of lateness was that on 9 March 2010. Mr. Kearns sent an e-mail to Mr. Fedele at 08.59 a.m. saying, "Running late guys sorry, will be in later this morning". At 11.09 a.m. Mr. Fedele asked Mr. Kearns by e-mail when he expected to arrive. Mr. Kearns' reply was, "On route will be there by 1.30 pm. Very late sorry and not proud of it but the wedding killed me". Mr. Cohen asked Mr. Kearns about the explanation (Transcript Day 3 page 118 lines 18 – 23):-

"Q. "The wedding killed me". I do not think I am not in any danger here in assuming that you drunk a lot at this wedding.

A. At that wedding I would have done.

Q. So the cause of your lateness or absence is the fact that you had overconsumed alcohol.

A. In this instance I would say so, yes."

51. It is appropriate next to consider the disputes, such as there were, as to what happened in Singapore over the period of 9 – 11 October 2010. I have already referred to the evidence of Mr. Fedele.
52. There were put in evidence a number of documents relevant to Mr. Kearns' commitments on 11 October 2010, to each of which Mr. Fedele referred in his witness statement, but which it is convenient to explain a little more fully.
53. Bakri, as explained by Mr. Fedele in his oral evidence (Transcript Day 4 page 315 lines 7 – 20):-

"… is a very important company in AG, in Arab Gulf. It is a very active player, big company. It is true they are very active on the carbon black that Andy described, but it is also true that they are very active in other segments of the market. Andy was covering the AG market. He was Mr. Arab Gulf/Middle East in our team in Glencore. So to me Bakri as the most active player in AG, was a very important meeting. It is true that it [the meeting on 11 October 2010] has been organised by some other fuel oil traders, one in Singapore, one in the US, but it was very important to meet Bakri and to discuss about different business than carbon black. We used to send a lot of cargo from the US to AG and to Singapore and part of this cargo was carbon black and part of this cargo was other product, other product that Andy was trading, that Andy was covering it."

54. The significance of Bakri Mr. Fedele expounded in cross-examination (Transcript Day 4 page 408 lines 20 – 22):-

"If you cover Arab Gulf market you have to talk to Bakri. It is like trading North Sea crude oil without talking to BP, if I may give you an example."

55. Later in cross-examination Mr. Fedele expanded (Transcript Day 4 page 409 lines15 – 17):-

"Bakri is based there. If you fly to Singapore, if you have an APPEC meeting, it is very important to meet physically your counterpart"."

56. In an e-mail to a number of fuel oil traders employed by Glencore, including Mr. Fedele and Mr. Kearns, dated 1 October 2013 Sukhjeet Sekhon said:-

"Bakri has asked to meet with Coleman and I on 11^th Oct at 10 am at our office. You are most welcome to join in. Please reply if you are in and copy Angie. Thanks."

57. Mr. Miah placed great emphasis on the terms of that e-mail, which, on its face, was an invitation which an invitee could accept or reject as he or she chose.
58. However, two types of document were, according to Mr. Fedele, produced for the Fuel Oil team of Glencore for the purposes of an APPEC meeting. One was called, in the 2010 version, "APPEC 2010 – FUEL OIL TEAM SCHEDULE" ("the Team Schedule"). The other was called, again in the 2010 version, "APPEC 2010 COMBINED MEETING SCHEDULE" ("the Meeting Schedule"). The Meeting Schedule showed a meeting with Bakri at 10.00 a.m. on 11 October 2010 to be attended by "DCC/SSS/YF/Andrew". "DCC" was Coleman, "SSS" was Sukhjeet Sekhon, "YF" was Mr. Fedele and "Andrew" was Mr. Kearns. It thus appeared that both Mr. Fedele and Mr. Kearns had accepted the invitation extended by the e-mail dated 1 October 2010. Although Mr. Kearns asserted in his evidence that he had not himself accepted the invitation, it seemed that someone had accepted on his behalf and that, according to the Meeting Schedule, he was expected to attend the meeting.
59. According to the Team Schedule there was to be a Fuel Oil team meeting on Sunday 10 October 2010 at 9.30 a.m.
60. The evidence of Mr. Fedele in his witness statement was to the effect that the start of the team meeting had been put back to 11.00 a.m. to accommodate team members coming from the United States. In cross-examination Mr. Fedele told me that the meeting ran out of time because of commitments in the afternoon. Consequently it was decided by him that the meeting should be adjourned and resumed the following day at 12.30 p.m. at a venue to be decided. Mr. Fedele said that, although Mr. Kearns had come late to the meeting on Sunday, 10 October 2010, he had been there when the arrangements for the adjournment and the resumption the following day were made. Mr. Kearns asserted that he had not been present and had not known of the intention to resume the meeting at 12.30 p.m. on 11 October 2010. I think that he was also inclined to contend that he did not have to attend the resumed meeting anyway, but the main focus of his averments was that he was not aware of the resumed meeting. Mr. Fedele told me that all of the other Fuel Oil team members did attend the resumed meeting, a contention which I do not think that Mr. Kearns disputed.
61. It was common ground before me that a member of the Singapore Fuel Oil team, Kim Weng Hon, did arrange for a venue for the resumed meeting, Golden Peony at Conrad Hotel, at 12.30 p.m. At 11.28 a.m. local time he sent an e-mail notifying all the other intended participants, including Mr. Kearns, of the venue. Mr. Kearns contended that he had not received that e-mail because the battery of his Blackberry had run out. In his witness statement dated 8 August 2013 Mr. Kearns explained his position in this way:-

"91. On Monday 11 October I slept until early afternoon Singapore time, showered, had something to eat and spent some time in my room. My phone had 'died' and I was asleep so I was not aware of any attempts to call me or send me emails. I do not recall there being either calls to the hotel room or knocks on my door. I then went down to the hotel lobby to ask the concierge if they had a charger for my phone."

62. Mr. Kearns certainly did not assert that he was unaware of the intended meeting with Bakri. His position seemed to be that it was up to him to decide whether or not to attend, notwithstanding that he was one of the listed Glencore participants. He chose not to go.
63. There was no dispute before me that Mr. Kearns did not attend either of the Bakri meeting or the resumed Fuel Oil team meeting on 11 October 2010. In his closing submissions Mr. Miah attempted to persuade me that actually neither meeting was important, or, to use the language of the trial "business critical". It was implicit in those submissions that it was either up to Mr. Kearns himself to decide whether or not to attend either meeting, he having an entirely free choice in the matter, or the contention was that the court should, in some way, and by reference to criteria which were not identified, make some sort of assessment of how important each of the meetings was. As it seemed to me, it was not for me to assess whether or not it was important for Mr. Kearns to attend the two meetings on 11 October 2010, or for him to make his own assessment. The simple point was that his employer instructed him to attend both meetings. It was not suggested that those instructions were unreasonable. Mr. Miah accepted, in his closing submissions, that if Mr. Kearns had been instructed to attend the meetings, he should have done so.
64. Glencore's case was that Mr. Kearns did not attend because he had consumed excessive amounts of alcohol on the evening of 10 October 2010 and in the early morning of 11 October 2010 and was simply incapable of attending; those absences were merely the latest in a long line of late attendances at work and absences and evinced an intention not to comply with Glencore's instructions as to what work Mr. Kearns was to do, and at what times, if compliance interfered with his consumption of excess amounts of alcohol on occasions upon which he decided upon such consumption. That, coupled with the necessary disdain associated with it for the mutual relationship of trust and confidence that should exist between an employer and an employee, amounted to a repudiation of the Contract, or entitled Glencore to terminate the Contract without notice by reason of the gross misconduct of Mr. Kearns. Mr. Cohen, at paragraph 3 of his written closing submissions, put Glencore's position in this way:-

"In short, an employee who refuses to attend punctually in the workplace on a regular basis is an employee who evinces an intention not to comply with his contract of employment."

65. However, Mr. Cohen also submitted that actually, if Mr. Kearns' case was that he consciously decided that neither of the meetings on 11 October 2010 was "business critical", as seemed to be suggested, and he deliberately decided not to attend either meeting, that in itself amounted to a repudiation of the Contract.
66. Mr. Kearns' case was somewhat elusive. It seemed, however, as I have already noted, to focus on the contentions that it had not been necessary for Mr. Kearns to attend either the Bakri meeting or the resumed team meeting, coupled with Mr. Kearns' alleged ignorance of the fixing of the resumed team meeting. The theme on Mr. Kearns' side seemed to be that summary dismissal was an excessive reaction on the part of Glencore and thus a breach of contract.
67. At paragraph 90 of his witness statement dated 8 August 2013 Mr. Kearns said of the evening of 10 October 2010 and the early part of the following morning:-

"We then attended a dinner where all or most of the Glencore oil desks were represented. Following the dinner we broke up into small groups and I went out with counterparties such as Trafigura, Morgan Stanley, Noble and Vitol as well as Glencore employees including Daniel Pechman and Ilker Alpmann from the US office to the Brix Club at the Hyatt Hotel. We stayed out until approximately 4:30 a.m. in the morning. I obtained some business relevant information that night which I relayed to my team the next day."

68. Mr. Kearns did not explain in that paragraph, or elsewhere in his witness statement, how much alcohol he had consumed on the evening of 10 October 2010 and in the early morning of 11 October 2010. In cross-examination he contended that he had consumed four 330 millilitre bottles of Tiger beer before, during and after the dinner on 10 October 2010 before leaving the restaurant at which the dinner took place. In cross-examination (Transcript Day 3 page 259 line 8) Mr. Kearns told me that he had left the restaurant at about 12.30 a.m. As to what happened once he had got to Brix Club, this exchange took place (Transcript Day 3 page 260 line 1 to page 261 line 11):-

"Q. And how much did you have to drink at Bricks [sic]?

A. There was a lot of talking circulating the floor so you need to be mindful that it is not just standing at the bar necking beers on your own. There are plenty of people to speak to. I would say, to answer your question, probably another four to five, 330 ml bottles of beer.

Q. So another four to five bottles of beer.

A. Yes.

Q. That takes us through to 2.00 a.m., but you do not, it appears, finish your evening till 4.30 a.m., do you? Paragraph 90.

A. Yes, I was asked what time did I get back to the hotel and from the best of my recollection it was around that time.

Q. What were you doing between 2.00 and 4.30?

A. I was doing exactly what I had been doing throughout the evening, I had been speaking to people, mainly.

Q. Who were you with? Because you were not with Mr. Pechman and Mr. Altman.

A. There were other people there from Glencore. There were people there from Vitol, another trading company. There were people there from oil majors. Do not forget, this is an international conference. The only time that we were going to see anybody other than the people we saw every day, and spoke to every day in our team would be to get out and about, so effectively who would I be speaking to, I can remember critically speaking to somebody from Noble, another trading company, Morgan Stanley, BP, Vitol.

Q. Mr. Pechman and Mr. Altman sound to me like they like to have a good time but by 2 a.m. even they were tired and they had gone home.

A. Yes, I can only put it down to the fact that their body clocks are on US time and at 4.30 a.m. in Singapore, it is approximately 9.30 p.m. in London, so they were probably more tired than I was."

69. For those of a certain generation, the expression "tired and emotional" is a phrase which connotes being extremely intoxicated.

Consideration and conclusions

70. I think that it was clear from the evidence adduced at the trial that there was little serious scope for doubt that, throughout the period of his employment by Glencore, Mr. Kearns regularly consumed excessive amounts of alcohol and that this excessive consumption rendered him incapable of getting up after a night of drinking at a time or in a condition such as to be able to arrive at work promptly at 9.00 a.m. and to function effectively. I accept without reservation the evidence of Mr. Beard, Mr. Fedele, Dr. Grimaldi and Mrs. Loving. As I have already noted, the evidence of each was supported by contemporaneous documents, and, to a significant degree, by admissions by Mr. Kearns in cross-examination. Mr. Kearns, by contrast, I found to be an unsatisfactory witness, inclined to seek to contest that which, on the documentary evidence, could not seriously be contested, and also to seek to minimise the extent of his consumption of alcohol and the consequences of such consumption, notwithstanding that, contemporaneously, he appeared to recognise both.
71. Knowing, as I find, that he had a disposition to consume excessive amounts of alcohol, and knowing, as I find, that he recognised full well the consequences of excess consumption so far as his work for Glencore was concerned, Mr. Kearns took no steps either himself to limit his consumption of alcohol or to seek help from those who might have been able to assist him, such as Dr. Shanahan. He simply continued on his existing path, paying no regard to the adverse effects of so doing for Glencore. In his closing submissions Mr. Cohen summarised Mr. Kearns' approach as "doing it his way".
72. I hold that, contrary to his assertions, Mr. Kearns consumed a substantial amount of alcohol on the evening of 10 October 2010 and in the early morning of 11 October 2010, and that it was because of the effects of that consumption that he did not attend the meeting with Bakri or the resumed team meeting. I find that Mr. Kearns was required, reasonably, by Glencore to attend the meeting with Bakri. Although Mr. Fedele told me that he also did not attend that meeting, that is irrelevant, in my judgment, to the question whether Mr. Kearns should have attended. I reject the evidence of Mr. Kearns that he was unaware of the intention to resume the adjourned team meeting at 12.30 p.m. on 11 October 2010. He seems simply to have slept through both meetings on 11 October 2010.
73. In his closing submissions Mr. Cohen reminded me that in Tullett Prebon Plc v. BGC Brokers LP [2011] IRLR 420 Maurice Kay LJ, giving the leading judgment of the Court of Appeal, said:-

"19. I am wholly unimpressed by this submission. The question whether or not there has been a repudiatory breach of the duty of trust and confidence is 'a question of fact for the tribunal of fact': Woods v. WM Car Services (Peterborough) Ltd. [1982] IRLR 413, at p. 415, paragraph 11, per Lord Denning MR, who added

'The circumstances are so infinitely various that there can be, and is, no rule of law saying what circumstances justify and what do not' (ibid).

20. In other words, it is a highly context-specific question. It also falls to be analysed by reference to a legal matrix which, as I shall shortly demonstrate, is less rigid than the one for which Mr. Hochhauser contends. At this stage, I simply refer to the words of Etherton LJ in the recent case of Eminence Property Developments Ltd. v. Heaney [2010] EWCA Civ 1168; [2010] 43 EG 99 (CS) (at paragraph 61):

'[The legal test] is whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.'

That, it seems to me, was essentially the approach of the judge in paragraphs 105 and 106 of his judgment."

74. It was the case for Glencore that, in deciding whether Mr. Kearns had repudiated the Contract by reason of his breaches of the duty of trust and confidence, it was appropriate to consider the whole course of the employment of Mr. Kearns. In the circumstances of the present case, I think, Glencore's case was that the same approach should be adopted to the question of the attitude of Mr. Kearns to instructions given by Glencore.
75. Mr. Miah contended, at paragraph 27 of his written closing submissions, that:-

"Unless Kearns [sic] previous performance, lateness or misconduct issues occurred or were discovered only a short time prior to the dismissal, the Defendant employer, it is submitted, is to be treated as having waived his right to terminate the contract on account of those issues."

76. If Glencore had sought simply to rely on breaches occurring some time before the date of Mr. Kearns' dismissal which were well-known to it, that submission would no doubt have been sound. However, the important point is that what Glencore relied upon was the events of 11 October 2010 against the background of that which had occurred previously, not that background alone. In such a case the approach of the court was that explained by Dyson LJ, giving the only substantive judgment of the Court of Appeal, in London Borough of Waltham Forest v. Omilaju [2004] EWCA Civ 1493:-

"14. The following basic propositions of law can be derived from the authorities:

1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd. v. Sharp [1978] IRLR 27.

2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v. Bank of Credit and Commerce International SA [1997] IRLR 462, 464 (Lord Nicholls) and 468 (Lord Steyn). I shall refer to this as ' the implied term of trust and confidence'.

3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract see, for example, per Browne-Wilkinson J in Woods v. WM Car Services (Peterborough) Ltd. [1981] IRLR 347, 350. The very essence of the breach of the implied term is that it is 'calculated or likely to destroy or seriously damage the relationship' (emphasis added).

4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in Malik at p. 464, the conduct relied on as constituting the breach must 'impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer' (emphasis added).

5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para. [480] in Harvey on Industrial Relations and Employment Law:

'[480] Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the 'last straw' which causes the employee to terminate a deteriorating relationship.

15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v. Motorworld Garages Ltd. [1985] IRLR 465. Neill LJ said (p. 468) that 'the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term' of trust and confidence. Glidewell LJ said at p.469:

'(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? (See Woods v. WM Car Services (Peterborough) Ltd. [1982] IRLR 413.) This is the "last straw" situation.

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20. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.

21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle."

77. Those principles Mr. Cohen submitted, rightly in my view, apply mutatis mutandis when it is the employee who is said to be in breach of the implied term of trust and confidence. Thus it was open to Glencore to rely on earlier incidents, taken together with the matters complained of on 11 October 2010, as together evincing a repudiation of the Contract by Mr. Kearns.
78. Against the background, which I accept, of Mr. Kearns' past lateness and absence, in my judgment Glencore was entitled to treat Mr. Kearns conduct on 11 October 2010 as amounting to a repudiation of the Contract, and to accept that repudiation by summarily dismissing Mr. Kearns. Alternatively, his conduct on that day, against the background which I have mentioned, amounted, it seems to me, to gross misconduct, as defined in the clause 9 of the Disciplinary Policy, entirely justifying the summary dismissal of Mr. Kearns. If, which I doubt, Mr. Kearns did not simply sleep through the meetings which he missed, but consciously decided not to attend them, that in itself amounted to repudiatory breach of the Contract which Glencore was entitled to accept by dismissing him summarily.
79. This action fails and is dismissed.