MOrsel: The moral of the story is always be prepared to explain a termination decision at Tribunal, even if you think you have the strongest of cases…

An applicant in an unfair dismissal case should be entitled to call the decision-maker for examination. That was the essential finding of the Royal Court in the recent case of Cotterill v The States of Guernsey.

At Tribunal, it was held that the States' decision to terminate due to dishonesty and gross misconduct was within the band of reasonable responses. However in a detailed judgement, the Royal Court considered the Tribunal's failure to accede to the applicant's request to call a range of witnesses, among other things. These witnesses included the Chief Secretary himself, the person who ultimately had decided to terminate the applicant's employment. Given that the Chief Secretary had said that the applicant had acted 'without malice', the Court considered that there was a question as to whether a finding of dishonesty and therefore gross misconduct should have been made. The decision-maker's evidence 'would most probably have been more relevant than the evidence of some (and possibly all) of the witnesses who were called on behalf of the Respondent', the Court added.

The case serves as a reminder that no matter how robust an employer's case to terminate seems, the decision-maker at a disciplinary should be prepared to appear at Tribunal and explain the decision to terminate.