1. In the Bristol Employment Tribunal Case No:1400500/2011
Between: -
Mr. D, GARDINER
Claimant
V
EXSTO UK LTD
1
st
Respondent
Mr. J BAXEVANIDIS
2
nd
Respondent
Mr. J M PENELON
3
rd
Respondent
_________________________________________________________________________________
WITNESS STATEMENT OF JOHN BAXENVANIDIS
I John Baxenvanidis will say as follows: -
1. I am the Respondent’s General Manager based at 67 Roundponds,
Melksham, Wiltshire.
2. Mr Gardiner was on annual leave from November 29th
until December 3rd
2010. On Saturday morning the 4th
December he called one of his colleagues
(Vincent Bezard) to inform him of the fact that the Spanish Air Traffic
Controllers in Spain were on strike and that he could not make it back home,
hence also to work on Monday the 6th
December. He also said that he called
Mr Bezard because he did not have my number.
3. On Monday the 6th
December sometime during the morning I was informed by
his colleague, of Mr Gardiner’s absence. The message that Mr Gardiner
passed to his colleague was that he was informed by his airline on Saturday
morning that all flights were fully booked for the next 12 days, but that his
airline could book him a flight for Wednesday the 8th
of December. Hence he
would be back to work on Thursday the 9th
. He called Mr Bezard after he had

2. made that booking with his airline. He did not have my number to call me and
that was why he called his colleague.
4. At first I was surprised at the information relayed in the message because I
thought it was not very credible, but I accepted it as I was certain that Mr
Gardiner would call the office soon to speak to me and report his absence
more accurately. At that point I thought I would get a better explanation. I was
also disappointed as we needed his skills for an important proposal for a job
which we were bidding for.
5. At the end of that working day I had not received a call from him, no emails or
even a mobile text message. I thought of the message he had passed on and
I still found it strange, so I decided to go on the internet to read the news on
the strike. As a seasoned traveller I have been stranded at airports because
of snow, strikes and all sorts of problems in the past and I am aware of a
golden fact: Airlines never commit to long terms updates. They always advise
to check with them at short and regular intervals. As the strike had only
started the day before, I found the information he passed on Saturday
morning that “all the flights for the next 12 days are fully booked, but they
could book me in a flight on Wednesday” extremely unlikely. At that stage the
airlines did not know if the strike would last for another week or an hour.
Furthermore, with the exception perhaps of the Icelandic Ash Clouds incidents
which lasted for weeks, in the event of strikes or similar short term events, it is
usual for airlines to clear backlogs within a day or two at the absolute most.
6. I noticed on the internet that all the news channels and newspapers had
reported the strikes over on Saturday the 4th
in the afternoon and that by
Sunday evening the 5th
the airports were almost working as normal again
because effectively the strike lasted for just over a day. I went on the internet
again and tried to book a flight on his airline’s website and I could book a
return flight from his location, as early as the same day (Monday the 6th
) in the

3. evening. I printed a copy of the website showing the page where I had to input
the payment details to book the flight.
7. I was feeling disappointed. I did not want to believe that Mr Gardiner had
opportunistically gained himself into a few more days of holiday, although the
information in hand was suggesting that. I still wanted to believe that there
was some sort of misunderstanding, or mistake somewhere. However, what
was confusing me further was that in his message to his colleague he said
that he did not have my number to contact me. I knew we had exchanged
mobile text messages in the past on plenty of occasions and surely he knew
the company number by heart, after working at this place for 7 years. I and his
colleagues knew that these frequent visits to Spain were to his parent’s
house, who had, years ago, taken permanent residence over there, so I knew
that as a minimum there would have been access to fixed or mobile phones.
In the extraordinary event that he did not have my number, or the company’s
number in hand, it should have been possible to source it quite easily.
8. I considered him to be a valuable part of the company, a trusted colleague
and a friend. However, what I could not help was feeling let down that he had
not shown at least some common courtesy and respect to contact me directly
and have a discussion with me, especially as he was aware of the company
policy of unauthorised absence.
9. Following a long period of frequent and unjustifiable absences from staff in
2007, I had issued a memo to all employees to make it clear that any other
method of communication with the company other than speaking to me (or
others in my absence) was not acceptable and the absence would be
considered unauthorised. The memo was necessary following a lot of
employees frequently and consistently on Mondays and Fridays not showing
up at work and not contacting anybody to inform us of the reasons for their
absences. On occasion they had sent mobile texts to their friends asking them

4. to come and tell me that their “car was not starting” or they had “missed the
bus” or a relative was sick, etc, etc. Following private discussions with the
worst offenders, companywide discussions, pleading for respect and
understanding, the problem persisted and hence the memo.
10.There were two issues: Firstly to ensure that the employee followed the
correct procedure of informing his employer of a significant absence and
secondly to avoid the lack of respect and courtesy shown toward his fellow
colleagues who were verbally complaining in the office about the nonchalant
attitude towards being away from the office in such a manner while also
expecting to be paid for it. I was aware that, according to HR policy the
company was not obliged to pay the employee and there was an option to
have a serious discussion with the employee to discuss the issue. Depending
on the employee’s justification the company could escalate to a disciplinary
process.
11.On Thursday the 9th
I went into my office. Very shortly after I arrived Mr
Gardiner came in to my office to offer me some olives he had brought back
from Spain. He immediately started speaking to me trying to defend himself
but it was first thing in the morning and I had not as of yet said anything to him
about his absence. I knew the importance of the work that had to be done, so
I did not want to waste valuable time at that stage and furthermore as my
office door was open I did not want to have such a conversation at this time,
so I politely asked him to finish the work he had to do and we would have a
chat later.
12.As it was a serious issue it had to be done in an appropriate context, but I did
not believe that it was a case of calling the employee straight into my office
first thing in the morning and “ripping him apart” as I never operated like that.
He kept talking over my every word trying to talk about his absence, so again I
asked him to return to his work as we were desperate for the drawings he was

5. working on and told him that we would speak later. A couple of hours later
around 10 – 10:30 am, I noticed that most of his colleagues had entered the
conference room adjacent to Mr Gardiner’s office so it would be a good time
to have a chat to him. I did not “order” him in my office like a naughty child
heading for detention. Whilst I considered the discussion to be serious it was
of an informal nature.
13.As soon as I went to his office he again started talking to me. I asked him to
let me explain to him what I knew and the reasons why I thought what he did
was not right and then he could tell me everything that had happened. By that
time I could see he was very defensive but I wanted the discussion to be
sensible and not a big argument as up to that moment in time I had not yet
heard his side of events directly from him. As far as I knew it could be that he
had all the right reasons to act in such a way. I spoke to him in a calm, but
serious tone (I was not laughing or smiling but I was also not shouting or
being aggressive).
14. I briefly explained to him the message I received through his colleague Mr
Bezard. I told him that all the news agencies were reporting that the strikes
had finished on Saturday and by Sunday 4,200 flights had departed. Service
had almost returned to normal. I asked him a few simple questions about
matters that puzzled me. I particularly wanted to know that after having heard
about the strikes finishing on Saturday, if he had made any efforts to contact
his airline and change his ticket. I asked if he had thought of contacting me to
inform me personally of his situation or think about making any alternative
travelling arrangements.
15.I explained to him that if he had called we could have helped him find and pay
for alternative arrangements. He answered dismissively “no I didn’t do that”,
“yes I guess I could have done that”. He offered no other justification and he
made no effort to explain anything further other than his previous message,

6. no effort in apologising or admitting that he made a mistake. His attitude was
whatever happened, happened and I don’t need to justify myself. However he
had taken an extra 3 days off from work, notified one of his colleagues of his
absence but not me, had not follow company procedure regarding
unauthorised absences and on his return he had offered no further
justification.
16.I told him that the company was not obliged to pay him for his 3 unauthorised
days of absence. I literally had just finished my sentence when he slammed
his hands on his desk, stood up, said “well If that’s the case then I am ill, I’m
going home ok” and he stormed out of the office grabbing his coat and
slamming the door on his way out.
17.I was astonished, but at the same time tried to understand his position. I
thought that I would give him some time to cool down and then see if he
returned or called. After a couple of hours after having received no calls or
emails from Mr Gardiner, I decided to call him. As his manager and I thought
his friend, I decided that I would make an attempt to reach out to him, even
though he had clearly behaved in a very inappropriate manner.
18.Following his exit some people heard the door slam others noticed his
absence and asked me what had happened. As a manager of a small
organisation where people talk a lot between them, rumours and gossip are
very easily created. I found myself in a difficult position where potentially I
could have been perceived as having allowed such a precedence to become
normal and acceptable behaviour. His colleagues were already complaining
about his absence and then were aware that he had stormed out. The next
time I felt that it could be one of his colleagues doing something similar,
without feeling the need to report to me. If that was to happen in the future, it
would be twice as difficult for me to deal with it in a fair and just way.

7. 19.I wanted to help Mr Gardiner so I called his mobile phone. As soon as he
answered following my greeting he started shouting very loudly. I could not
make sense of it. Mr Gardiner put the phone down on me. I tried to call him
again, still thinking that I could diffuse this by trying to calm him down but he
would not answer the phone. In the end I thought that if I left a voicemail
maybe he could listen to it when he had calmed down, which I did. I started by
telling him that I had known him for 8 years and thought that we should be
able to talk about this a lot better furthermore that I, or the company did not
deserve such behaviour. I also asked him to contact me or come back at work
at some point to discuss the matter to hopefully resolve it amicably and that if
he chose not to, then I had no other choice but to treat this incident according
to company HR policy. I categorically did not make any threats about
dismissals, punishments, or anything like that, however I felt that it was my
duty to tell him that there was still time to move past this, but also that if he
chose not to make contact I had no other path available to me.
20.During my lunch break I called my manager in France (Jean-Marc Penelon) to
tell him what had happened. There were two issues. Firstly that we had a
serious problem in submitting our offer to the customer and secondly that
there was the potential for the incident to escalate in HR terms, so I felt
obliged to contact my superior. He was unavailable, so I left a message to call
me back. He called back shortly telling me that Mr Gardiner had just called
him (remarkably he had quickly sourced my manager’s contact number but
had not been able to source mine, or the company’s number during his
unauthorised absence). Mr Gardiner sounded angry and upset when he tried
to explain his side of events to him, which he reiterated to me. I then gave him
my version of events. At this time both our versions of events were similar, as
statements from my Manager have subsequently shown. It was only later that
Mr Gardiner started embellishing on the events and talked about vicious and
premeditated attacks, harassment and bullying, etc. My manager advised Mr
Gardiner to try to calm down and when he was feeling ready, the best thing
would be to contact me, perhaps later on in the evening and try and have a
discussion about it. However Mr Gardiner made no contact.

8. 21.The next day Friday 10th
December I received an email from Mr Gardiner,
sent at 6:41am telling me:
“I will not be in the office for the rest of the day due to stress, from which I was
suffering already, but was aggravated by bullying in the office yesterday morning.
I will be seeing my Doctor at 10:30am today.”
Again there were two different issues here. The actual workload that had built
up since before his holiday and also suddenly I found myself looking at the
screen horrified and in disbelief at the claim he was making. I could not
believe how it was possible for someone to do what Mr Gardiner had just
done over the last few days and then make such a wild and severe allegation
against me following a very short (matter of minutes) placid conversation we
had the morning before. Not to forget my ‘beyond the call of duty’ efforts to
reach him and help him. At this point I started to wonder about Mr Gardiner’s
state of mind and his true intentions.
22.Mr Bezard informed me later in the morning that Mr Gardiner had also
performed some work since his exit yesterday (obviously outside of working
hours, as nobody saw him) for the important proposal that we had to submit. I
was very confused, but I still had faith that since he had done this he must still
be struggling with his actions and hence there was therefore still a chance
that this could be amicably resolved.
23.I believed that I had tried to help Mr Gardiner as much as I could with positive
reinforcement, reaching out to him to make contact with me in email form,
until again at some point I received more shocking news that Mr Gardiner
wanted no further contact with me. It was months later that I slowly discovered
that Mr Gardiner had directed all his rage and despair toward me branding me
with colourful epithets.

9. 24.On the 13th
December I sent a letter by email to Mr Gardiner inviting him to
voice his concerns over his alleged bullying incident. It was a grievance
invitation for his benefit, with the offer to voice his grievance with my manager
Mr Penelon.
25.On the 14th
December Mr Bezard came into my office to inform me that he
needed access to Mr Gardiner’s computer to look at some drawings for his
work but could not log on and that he had contacted Mr Gardiner, but he had
refused to give his password.
26.It is important to note that employees are instructed not to have individual
passwords on their computers, in case someone else requires access to
information stored locally in the event of their absence, let alone refuse to give
access to company property.
27.I was very conscious of the bullying allegations made against me and I did not
want to be personally involved, as I could see the potential to invite further
false allegations. I suggested to him that he call our IT suppliers to remotely
unlock the machine. They gave instructions to Mr Bezard on how to unlock
the machine, but the process failed again. Upon investigating they came back
saying that Mr Gardiner had not one but two passwords and one was at the
BIOS level which in fact required access to the hardware, so they would have
to come and charge us a call out fee. I asked them whether they could try to
contact Mr Gardiner as they knew him well anyway. In the meantime (and
following Mr Bezard’s contact with him) Mr Gardiner contacted the IT
company (before they did) on his OWN accord, explained to them that he was
off work for stress and wanted to know who wanted to access his computer.
28.Unfortunately the IT engineer incorrectly said “John”. Mr Gardiner suggested
that he could give them the password if he had wanted to, but he didn’t. I must

10. emphasize that the company was in effect during this time being held to
ransom on its own equipment. The IT engineer tried again by calling Mr
Gardiner later on at the end of the day. The engineer recorded the event in
writing at my request. He told me that
-I called Doug and said we needed the password otherwise we would
need to manually reset it. He said he would call Exsto. He asked who
requested the password, I said John Bax, and wanted to know what
they (Exsto) wanted to use the computer for. I repeated as above,
saying you probably want to use it for editing files and because it was
the best computer in the office for this task. When I asked for
confirmation that he would call the Exsto office to tell you the
password, he changed his mind and told me we would need to reset
the password.
29.The IT Company confirmed that this could not be an accidental fault. They
confirmed the password had to be set up intentionally. Mr Gardiner had
locked his machine in an attempt to potentially aggravate his employer further.
I make this statement in the belief that its contents are true and to the best of my
information and knowledge.
Signed ……………………………………..
Dated……………………………………….