A truck driver who was sacked then reinstated amid fuel-skimming allegations was ordered to pay her former company £21,000 after pursuing a “perplexing” bid for £50,000 compensation from the company.
Tatjana Pogiene had initially been dismissed from logistics firm Debach Enterprises after data showed that fuel was missing – or being ‘skimmed’ – from her truck. However, after an investigation found the data to be faulty, she was reinstated with full compensation from the date of the dismissal to the date of her reinstatement.
The Norwich tribunal then heard Pogiene sought compensation for her dismissal, even though she had been warned by the court that her case “had little reasonable prospect of success”.
The tribunal “was unanimous in [its] view” that her claims of constructive unfair dismissal and unlawful deduction of wages were “doomed to fail from the outset” and she should pay her former employee thousands of pounds to cover the cost of the tribunal.
It additionally heard Pogiene was an “evasive witness” who “frequently had to be warned by the tribunal” to answer questions. Employment judge Hyams described her refusal to do so as “quite extraordinary”.
Background
In early 2020, the managing director of Debach Enterprises, Mrs Kemball, ordered an investigation after becoming concerned about the firm’s rising costs. The probe was to look into how the business was being run and the rising cost of fuel being used, the inquest heard.
Mrs Davis used technology provided by Volvo, which measures the amount of fuel being pumped into an engine and the amount being used by that engine. The investigation found three drivers had discrepancies between these numbers – one of whom was Pogiene.
Following her concerns, on 4 March Davis held a meeting with Jonathan Warby, fuel watch manager at Volvo Trucks and Bus South and East, to assess the accuracy of the data. Warby said the data was accurate within 1-2 per cent tolerance.
It was decided there were fuel discrepancies occurring and that not all the fuel going into the tank was being used in that vehicle, meaning it was missing or being skimmed.
On 15 April, Pogiene received a letter requesting her to attend a disciplinary hearing to address the allegations that there were fuel discrepancies occurring in her vehicle and allegations that fuel was thus being stolen from the company. The meeting was delayed by a week to accommodate her request to have a Russian interpreter with her.
During the hearing, the tribunal heard that the firm relied on the data provided by Volvo’s telematic system as evidence that fuel was missing. Pogiene even told the hearing: “If there is a shortage of fuel in the tank, that means theft, doesn’t it?” But the issue remained whether this was Pogiene’s fault or not. Having not submitted any documentation or evidence, Pogiene was unable to explain why the fuel was missing from the tank.
Pogiene’s manager, Mr Page, then dismissed her for gross misconduct for the fuel discrepancies that she was unable to explain. However, he did not specifically conclude that Pogiene was responsible for the theft, but that fuel she had been responsible for had been skimmed.
She lodged an appeal, which was received by her former employer around 9 June, and an appeal took place on 18 June. It was made clear in the meeting that Pogiene did not want her job back, but instead wanted financial compensation and for Davis to be dismissed.
Following the appeal meeting and before having reached a decision, Kemball went back to Volvo to ask for specific confirmation of the accuracy of its telematic system. She received a reply from the firm’s legal director that was “woolly and non-committal” and when she chased him he refused to take her calls, she told the tribunal.
The decision was then taken by Debach Enterprise that the Volvo data could not be relied on. Kemball overturned the decision to dismiss Pogiene and reinstated her, offering to pay the lost wages from the date of the dismissal to the date of reinstatement.
Kemball sent Pogiene the appeal outcome letter on 2 July and said if the company had not been “potentially ill informed” by Volvo then “I do not believe a disciplinary process would have been started”. She continued: “I apologise for how this has made you feel, but I do not see how the disciplining manager could have acted in any other way given the information supplied at the time.”
In a letter dated 10 July, Pogiene offered her resignation. She also maintained her position that she would only return to the firm if it paid her £50,000 and dismissed Davis.
At the outset of the hearing on 17 January 2022, two deposit orders of £50 each were made to Pogiene, one in respect of the claim for unfair dismissal and one in respect of the claims for breaches of the Equality Act 2010 at £50 each as they “had little reasonable prospect of success”.
Judge’s comments
Employment judge Hyams said: “It has perplexed the tribunal during the course of the last three days, how the claimant’s claim for a breach of the implied term of trust and confidence is pursued.”
He said that “at virtually every stage” Pogiene had been accommodated and noted she had been reinstated with no loss of income.
Hyams then discussed the issue of costs. He outlined how tribunals are permitted to charge costs against a claimant when the “claim or response had no reasonable prospect of success”.
He said: “Clearly, this case had absolutely no reasonable prospect of success. It was doomed to fail from the outset and in those circumstances the first part of the equation takes place; clearly the claim had no reasonable prospects of success. The tribunal, therefore, was unanimous in their view that they should exercise their discretion in awarding costs.”
Pogiene was ordered to pay £21,000 to Debach Enterprises to cover the costs of the three-day tribunal.
Lawyer’s comments
Ian Jones, principal solicitor at Spencer Shaw, said: “It is clear that the tribunal formed a view that the claimant’s conduct in making the claim was unreasonable. There was no basis for a claim of constructive unfair dismissal and no evidence to support it and it was inevitably going to fail.”
The deposit order made by the tribunal should have acted as a “warning” that there were “serious doubts about the viability of a claim”, he said.
While cost orders are rarely made, “this case justified the order”.
Overall, employers and HR should not be concerned about this kind of claim to any great degree, Jones argued. “It is rare for an ex-employee to make, or to continue to make, a claim that is so clearly destined to fail. The judgment also confirms that, in appropriate circumstances, the tribunal will act and will legally penalise a claimant (and compensate an employer) if they pursue a case that should never have been lodged.”
Shah Qureshi, partner at Irwin Mitchell LLP said while there is still a relatively high bar in awarding costs, it is becoming more commonplace.
"When faced with a case that they believe has no prospects of success, employers should consider making an application for costs on this basis. This should generally be done at an early stage in proceedings although the tribunal may take the view that it needs to assess the full evidence first at a final hearing," he said.
Debach Enterprises has been approached for comment, and Pogiene could not be reached.