Glencore oil trader Andrew Kearns loses wrongful dismissal claim after he was sacked for 'heavy night' of drinking - and is ordered to pay at least £150,000
Glencore said he failed to attend critical Singapore meetings in the morning, at lunchtime and in the afternoon
Wednesday 11 December 2013
An oil trader sacked because he was said to be not in a fit state after a heavy night out in Singapore has lost his damages action for wrongful dismissal and now faces having to pay at least £150,000 costs.
Andrew Kearns, 38, was employed by Glencore UK Ltd from January 2009 until October 2010, when he was summarily dismissed after missing a series of meetings on the business trip.
Mr Kearns claimed he was sacked as a “scapegoat” for other issues at the firm, adding: “ I am disappointed naturally. The judge adopted a very legalistic approach as to whether or not I was wrongfully dismissed.
"Throughout the trial the judge asserted he was not concerned about what other possible reasons lay behind my dismissal, nor whether the reasons for my dismissal were fair, but rather if Glencore had a right to dismiss me without warning nor notice, contractually.
"I consider the judgement harsh given the surrounding context heard during proceedings and the clearly hostile feelings certain people within Glencore held for me being proven in pre-trial evidence disclosure.”
Contesting the action at London's High Court, Glencore said he failed to attend critical meetings in the morning, at lunchtime and in the afternoon of 11 October and it was the latest in a series of alcohol-related incidents.
Mr Kearns agreed that was out until 4.30am drinking with colleagues, but said it was not to greater excess than anyone else and the business meetings later that day did not require his compulsory attendance.
Mr Kearns, of Rainham, Gillingham, Kent, received a signing-on bonus the equivalent of $325,000 (current value £202,000) when he joined the company and was on an annual salary of $225,000 (£140,000) plus other benefits.
Mr Kearns, a married father of three, was not in court to hear Judge Richard Seymour QC make a costs order against him on the higher indemnity basis, with an interim payment due of £150,000.
The judge said: "This claim was ludicrous - it should never have been advanced."
At the start of the trial, the judge threw out the most valuable part of the claim - in respect of share options - as "hopeless", leaving only the wrongful dismissal element which was worth £12,000 maximum.
"In those circumstances, this is about as abnormal a case of this type that one could imagine. There was no conceivable justification for any claim being made at any point."
Glencore's counsel, Jonathan Cohen, had told the court: "This is an industry where a mistaken decimal point might result in losses of a very substantial nature. An employer cannot be expected to allow an employee who allows himself to become inappropriately inebriated to remain in the workplace."
Asking for his costs today, Mr Cohen said: "Mr Kearns was dishonest in his evidence. He sought to deny the inevitable. Mr Kearns was habitually drunk and that was the reason he so egregiously failed to perform the duties required of him. It was in Mr Kearns's power to remedy his behaviour. When he went on that conference, he could have chosen not to go out until the early hours and get drunk and to turn up to the meetings he was required to, but he chose not to do that."
He said that Glencore had made an offer to Mr Kearns earlier for him to discontinue the case, with each side paying its own costs.
A relevant factor was Mr Kearns's failure to accept the help Glencore offered, involving a doctor and a consultant who was a world expert on drug and alcohol addiction. Instead, he spent the next afternoon, when he should have been at work, in the pub.
"This was a slap in the face for Glencore. This litigation is a slap in the face for Glencore. Mr Kearns has lost his job because of his own behaviour, his own very bad behaviour.
"Glencore did everything they could to help him during the employment until they got to the end of their tether. The tether would have been considerably shorter with the majority of employers. His dismissal was richly justified.
"Notwithstanding that, Glencore has then been forced to spend the best part of £400,000 defending a hopeless claim brought by someone who does not realise how tolerant Glencore were and how much they did to help."
Mr Cohen said that Mr Kearns's absence record was "appalling", being late or absent for at least 20 per cent of his service in London. His non-attendance at the conference was the final straw and he found himself between a rock and a hard place.
In his ruling, the judge said that Mr Kearns was an unsatisfactory witness, inclined to contest what, on the evidence, could not seriously be contested and to minimise the extent of his alcohol consumption and its consequences.
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