Truck driver ordered to pay employer costs of £21K after being dismissed and reinstated over fuel skimming claims

In Miss Tatjana Pogiene v Debach Enterprises Limited Tatjana Pogiene was a driver for a warehousing and distribution company. Mrs Kemball, the Managing Director, was concerned about the rising costs against income that the Respondents were now seeing and effectively ordered an enquiry into the running of her business and the rising cost of fuel being used.

An investigation was then carried out by Mrs Davis into the Driver fuel usage which is recorded by Volvo’s Telematic System. As a result of the detailed investigation, it transpired that three drivers had discrepancies between the fuel recorded as having been pumped into their truck and the fuel burned by the engine of that truck. In a nutshell fuel was apparently being skimmed whilst those Drivers, one of which was Miss Pogiene, was responsible for the vehicles.

Miss Pogiene was invited to attend a Disciplinary Hearing but could not explain why fuel going into the tank was missing and not being burned off by the engine. The Respondent’s Manager conducting the Disciplinary Hearing, Mr Page, took the decision to dismiss for gross misconduct concluding that fuel had been stolen.

Miss Pogiene lodged an appeal. The Tribunal stated that it is clear is that she did not want her job back. She wanted compensation and for Mrs Davis to be dismissed.

Mrs Kemball, after the Appeal Hearing and before reaching her decision, went back to Volvo to ask specific confirmation as to the accuracy of the Telematic System. She received a response from the

Legal Director of Volvo which was woolly and non-committal as to the specific accuracy of the Telematic System.

As a result of the Respondents not being able to rely on the data from the Telematic System, Mrs Kemball rightly overturned the decision to dismiss and reinstated Miss Pogiene offering to pay lost wages from the date of dismissal to the date of reinstatement.

Miss Pogiene was still maintaining the position after appeal that if the Respondents paid her £50,000 and dismissed Mrs Davis, only then would she return to work.

It perplexed the Tribunal how Miss Pogiene’s claim was pursued. What is clear on the facts of this case is that there was no fundamental breach of the implied term of trust and confidence on the part of the employer entitling the employee to resign. Far from it, the Respondents at virtually every stage accommodated Miss Pogiene, extending the time to prepare for the Disciplinary Hearing, multiple times allowing an extension in relation to the Appeal, providing numerous documents to her at the last moment prior to the Appeal, many of which simply had no relevance to the Appeal and then overturning the decision to dismiss, offering Miss Pogiene her job back, apologies and back pay for the period between dismissal and reinstatement.

Clearly, this case had absolutely no reasonable prospect of success. It was doomed to fail from the outset and in those circumstances the Tribunal were unanimous in their view that they should exercise their discretion in awarding costs.

Miss Pogiene was ordered to pay the Respondent’s Costs in the sum of £21,000 in respect of the three-day Hearing.