OUTER HOUSE, COURT OF SESSION

 

[2010] CSOH 124

 

A902/08

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD WOOLMAN

 

in the cause

 

JOHN DUFFY McCORMACK

 

Pursuer;

 

against

 

HAMILTON ACADEMICAL FOOTBALL CLUB LIMITED

 

Defender:

 

 

ญญญญญญญญญญญญญญญญญ________________

 

 

 

Pursuer: Paul Davies, Wilson Terris & Co, Solicitors

Defender: Michael Upton, Drummond Miller LLP, Solicitors

 

 

1 September 2010

 

Introduction

[1] Mr McCormack was appointed as the Assistant Manager of Hamilton Academical Football Club Limited ("Hamilton") in late June 2008. Just over two months later, he was dismissed for gross misconduct. In this action Mr McCormack seeks damages for wrongful dismissal. Hamilton maintains that he was in material breach of contract and that it was entitled to dismiss him.

 

Background

[2] Mr McCormack has been involved in Scottish Professional Football for all his adult life - about 35 years - first as a player then as a manager. His playing career lasted for 12 years. During the period when he was a player at St Mirren, he acquired the nickname "Cowboy". That is because he shares the same name as a well known boxer from Maryhill, who had previously been given that nickname.

[3] After the end of his playing career, Mr McCormack was employed at various sports centres by Glasgow City Council. Subsequently, he worked at Dundee FC for six years. He began working with its youth teams. Later he progressed to the roles of assistant manager and manager. After leaving Dundee, Mr McCormack held coaching roles with a number of football clubs, including Queen's Park, Morton, and Stenhousemuir. In June 2008, he was the part-time manager of Albion Rovers, which was then playing in the Scottish Third Division. He holds a number of coaching qualifications, including a professional licence from UEFA (the Union of European Football Associations).

[4] At the end of the 2007/2008 football season, Hamilton was promoted to the Scottish Premier League ("SPL"). The club's manager was Mr Billy Reid and its chairman was Mr Ronald Macdonald, the head of Cullen Packaging, a business with a workforce of over one hundred employees. Mr Macdonald thought that the manager's workload would substantially increase after promotion, in part because the SPL requires its clubs to field reserve and under 19 teams.

[5] Mr Macdonald therefore decided to appoint an assistant manager. He discussed various candidates for the post with Mr Reid. It was decided to approach Mr McCormack. Both men knew him through their mutual involvement in Scottish football. Mr Reid was aware that Mr McCormack had a reputation in football circles of being a "hard man", meaning that he was heavy on players. Mr Reid said that he discussed this matter with Mr Macdonald at the time that they were considering candidates.

[6] When he was contacted, Mr McCormack was very interested in the opportunity of returning to the SPL. He obtained permission from the chairman of Albion Rovers to take matters further. On 27 June 2008, Mr McCormack went to the bar of the Black Bear Hotel in Uddingston where initially he met Mr Reid on his own. Within about ten minutes Mr McCormack was offered the post of assistant manager, subject to terms being agreed. Mr Reid told him that no further time was required, because "they had done their homework".

[7] Shortly afterwards, Mr Macdonald came into the hotel. He and Mr McCormack discussed the terms of the contract. Mr Reid went to another part of the bar area within the hotel and did not participate in that conversation. Agreement was reached that Mr McCormack would take the job at a salary of ฃ40,000 a year. There is, however, a dispute as to the duration of the contract. Mr McCormack states that it was a two year period. Mr Macdonald maintains that it was for a one year term. No written contract of employment was ever drafted or signed.

[8] As assistant manager, Mr McCormack's main responsibility was to assist with the coaching of the first team squad. It consisted of about thirty players, including four from the under 19s team. Hamilton has always placed a great deal of emphasis on youth development. A number of young players who have started there have moved to bigger clubs, including teams in the English Premier League.

[9] During the period that Mr McCormack was employed at Hamilton, as well as Mr Reid there were two other full time members of the coaching team. Frank McAvoy was the director of the youth academy. Stuart Taylor was the reserve team coach, who also assisted with the younger players. They reported to Les Gray, the vice chairman of the club and director of youth football.

[10] Hamilton also employed a number of persons who were responsible for the players' fitness and health. In 2008 they included (a) Alan Rankin, head physiotherapist; (b) Avril Downs, a registered nurse, who also acted as a sports therapist and chiropodist; (c) Ross Hughes, sports science officer; and (d) Jillian Galloway, part-time trainee physiotherapist.

 

The Oban Tournament

[11] An amateur club in Oban holds a regular pre-season football tournament in the town. The organisers invite a number of Scottish professional clubs to participate. The tournament involves a "round robin" of four matches, each lasting half an hour. The two top teams contest the final.

[12] The 2008 tournament took place on Saturday 12 July. Hamilton had participated regularly before, but had never won the competition. Mr Reid was in Glasgow that day watching another match. He asked Mr McCormack to take charge of the Hamilton team. It included members of the first team and a number of younger players. They ranged in age from 16 to 28 years. Mr McCormack did not receive any instructions about the way in which he was to coach the side. During the week prior to the tournament, he supervised one training session, which involved shooting skills. Mr McAvoy met him for the first time on that occasion and was favourably impressed by his coaching skills.

[13] A sizeable contingent of supporters from Hamilton attended the tournament, including the players' families. Mr McAvoy and Mr McCormack travelled to Oban on the team bus, as did Miss Galloway. She was introduced to Mr McCormack on the trip north and they had a brief conversation. She explained that she had qualified in physiotherapy in June and did not yet have a full-time job. He offered to contact a friend of his who worked in the National Health Service to see if he could assist her in finding a post. Mr McCormack took a note of Miss Galloway's contact details, including her mobile phone number.

[14] Hamilton performed well in the tournament. The team were joint top on points at the end of the round robin phase. Hamilton lost the final to Dundee United, which was in effect fielding its first team.

 

Mr McCormack's Coaching Style

[15] There was conflicting evidence about Mr McCormack's coaching style at the tournament. On his account, he merely encouraged the players from the touchline. He said that he was trying to push them, because he wanted to use the tournament to build up their fitness. His aim was to ensure that the players gained sufficient strength in their legs to carry them through the following season. He accepted that he might have shouted and used the odd swear word. However, he denied the suggestion that he had bullied the players, which he said would have been counter-productive.

[16] Mr McAvoy and Miss Galloway stood near to Mr McCormack at the side of the pitch during all of Hamilton's games. They gave a different account of his coaching style. Mr McAvoy said that he was amazed by Mr McCormack's conduct, which he found "alien". Although the tournament was a family event, Mr McCormack swore constantly at the Hamilton players, using such expressions as "get up the fucking park". Mr McAvoy said that he had never experienced such aggressiveness and that he was "absolutely gobsmacked". He noticed that during the first game, the Hearts' fans were mimicking Mr McCormack. He described them as barking like dogs. According to Mr McAvoy, this mimicry by opposing fans continued throughout the tournament.

[17] There was another strand to Mr McAvoy's concern. Mr McCormack wished the players to adopt a "long ball" style of play. That was in contrast to Hamilton's normal passing style, which the club strongly encouraged.

[18] After five minutes of the first game, Mr McAvoy stepped back from the side line because he did not want to be associated with Mr McCormack. At the end of the game, Mr McAvoy used his mobile phone to contact Mr Reid and said: "What the fuck have you done to me?" Mr Reid confirmed the terms of that telephone call and said that it was unusual for Mr McAvoy to swear. When he enquired what he meant, Mr McAvoy replied "John is running amok up here"; "he's like a madman at the side of the park".

[19] Miss Galloway supported Mr McAvoy's account. She described Mr McCormack as being more aggressive and extreme than other coaches with whom she had worked before or since. She said that it felt as if any instruction by him to the players contained a swear word. During the final, she heard the Dundee United fans imitating Mr McCormack.

[20] The club chairman, Mr Macdonald, made his own way to the tournament. He arrived during the course of the first match. He spoke briefly to Mr McCormack and wished him all the best for the tournament. He then spoke to Mr McAvoy and went off to find the tournament organiser. In consequence, Mr Macdonald did not see much of the Hearts game. However, he watched Hamilton's second game against Alloa from the stand, where he sat beside some of the players' families. He was about 10 yards behind Mr McCormack, who was on the sideline.

[21] According to Mr Macdonald, Mr McCormack shouted various remarks to the players, including: "Get fucking stuck in"; and "this is fucking rubbish". Mr Macdonald described him as "fired up" and that apart from swearing at the players, he shouted at the sky and gesticulated. This resulted in the Hamilton players becoming agitated. One player, Grant Evans, swore at the linesman. Mr Macdonald said that he was horrified regarding the behaviour of both the players and the manager.

[22] Mr Macdonald took Mr McCormack aside and had a private word with him at half time. He told him that they were not there to "Eff and blind", but to enjoy the football. He explained that the club's ethos did not tolerate this standard of behaviour. He also told him that when managers shouted and swore, it affected the players. Mr Macdonald said that Mr McCormack stared at him as if he was talking gibberish and that it was none of his business. A member of one of the players' family saw the exchange. He said to Mr Macdonald after he returned to the stand "about time". Because of his concerns, Mr Macdonald asked Mr McAvoy to become involved with the team and to act as a steadying influence. Mr McAvoy tried to placate the players for the remainder of the tournament.

[23] According to Mr Macdonald, Mr McCormack was quiet for the first couple of minutes of the second half of that game, but then he shouted to one of the players: "Fuck, I told you about that a couple of minutes ago". Mr Macdonald said that the remark could be heard fifty yards away. He watched the remaining three Hamilton games very closely, but there was no further outburst that other spectators would have heard. Mr Macdonald thought, however, that the Hamilton players remained agitated and confused. He also noticed other fans mimicking Mr McCormack. Mr Macdonald had no occasion, however, to speak to Mr McCormack again during the course of the tournament.

[24] Three persons who were involved in the Oban tournament spoke to Mr Macdonald about Mr McCormack. Alan Maitland, the Alloa manager said "you've got a handful there". Craig Levein, then manager of Dundee United thought it was a surprise appointment and was not sure it would work out. David Buchanan, the tournament organiser, had watched Hamilton teams for twenty years. He remarked that it was not their normal style of coach. Mr Macdonald thought that was a reference to Mr McCormack's outbursts. None of these three men was called as a witness.

[25] Evidence was led, however, from Thomas Campbell, the youth development manager at St Johnstone FC. He had known Mr McCormack for several years, although they were not friends. During the course of the match between their two teams, Mr Campbell said that he had his ears open for any tactical move on the part of Mr McCormack. He was aware of him shouting, because Mr McCormack was "an enthusiastic guy", but did not think there was anything unusual in the way he acted. Of the shouting, Mr Campbell said "I've heard a lot worse". However, he went on to say that he did not hear any swearing.

[26] I have no hesitation in accepting that the coaching style adopted by Mr McCormack did involve a great deal of aggressive shouting and swearing. That was most marked in the period prior to half time in the second game against Alloa.

[27] The Oban Tournament was, however, the first time that Mr McCormack had taken charge of a Hamilton team. In my view, it was simply a clash of styles. He stated that as a coach, he focussed wholly on the game and sometimes became "heated up". That in my view was confirmed by Mr McAvoy, whose family were at the event and whose own son Declan was playing in the Hamilton team. Mr McAvoy stressed that he found Mr McCormack to be very pleasant before and after each game. He described him as being rather "Jeckyll and Hyde". During the course of the tournament, Mr McAvoy's wife met Mr McCormack at the ice cream van. She found it hard to believe it was the same man that she had just seen shouting at the side of the pitch.

 

The Incidents in the Dressing Room
[28] Before the final match against Dundee United, Mr McCormack gave a team talk in the dressing room. Both Mr McAvoy and Miss Galloway were present. Mr McCormack told the players "this is like the wee tickly bit before you come". He then added words to the effect "even Jillian is excited - look how hard her nipples are". Mr McCormack said that these comments were made in a jovial manner. His aim was to break the tension that the players felt. He regarded his remarks as standard locker room banter, which helped to motivate the players.

[29] After the final, Miss Galloway was sitting outside the dressing room. She had ascertained that none of the Hamilton players required treatment. Mr McCormack told her that the physiotherapist should be in the dressing room at all times, in case treatment was required. He instructed her to go back inside with him. As they went into the dressing room, Mr McCormack said "get your tackle out lads, Jillian's coming to see who's got the biggest tadger".

[30] Mr McCormack decided to take a shower before boarding the team bus home. At that stage Miss Galloway was in a corner of the dressing room. She felt uncomfortable at being there and was pretending to attend to things in her treatment bag. Mr McCormack went over and undressed in front of her. He returned to the same spot after his shower and dressed there.

[31] Miss Galloway said that she felt very embarrassed by these incidents. On the bus trip home, Mr McCormack spoke to her and said that he hoped she was not embarrassed by his remarks. She did not reply. She explained that she found it was difficult to do so, as she was a female aged 21 and he was a 50 year old male. She felt intimidated by his status within the club and was concerned not to say or do anything that might harm her career.

[32] Mr McAvoy said that he had been generally embarrassed by these incidents and stunned by the remarks made in the dressing room. Later that night, he telephoned Mr Gray and said it had been his worst day in football. He even contemplated going back to his former job as a taxi driver.

 

First Meeting with the Chairman - Sunday 13 July 2008

[33] By the following morning, Mr Macdonald had become aware that a number of parents had contacted Mr McAvoy and Mr Gray to comment adversely about Mr McCormack's behaviour at the tournament. This was a matter of concern to Mr Macdonald, as the club liked to work closely with the parents. In part that was because it helped to avoid their sons being poached by football agents. More importantly, he said that it was simply part of the club's culture.

[34] Mr Macdonald called Mr McCormack to a meeting later that morning to discuss matters. He told Mr McCormack that he was "old school" and referred to him shouting at players at Oban the previous day. Mr Macdonald said that wasn't done at Hamilton. Mr McCormack replied that no one had told him that before the tournament. The manager had simply asked him to take a team up to Oban. Mr McCormack agreed to adopt a quieter style in future.

[35] Mr Macdonald did not threaten to sack Mr McCormack at the meeting. However, he told him that what happened was not good enough and should never be repeated. He made it plain that the contract of employment could not go forward and see out its full term if such conduct recurred.

 

Second Meeting with the Chairman - Sunday 20 July 2008

[36] At the time of the first meeting with Mr McCormack, Mr Macdonald had no knowledge of the incidents in the dressing room involving Miss Galloway. He became aware of the remarks made to Miss Galloway in the dressing room by a circuitous route. Perhaps surprisingly, it was Mr McCormack himself who told Avril Downs at the beginning of the following week what he had said in his final team talk, including the reference to Miss Galloway. Ms Downs in turn relayed what he told her to Mr Rankin.

[37] Mr Rankin sent a text to Miss Galloway asking her if crude comments had been made to her. She replied by text confirming that such comments had been made. She did not mention the actual words used, nor did she mention the shower incident. Mr Rankin reported the matter to Mr Macdonald, who decided to hold another meeting with Mr McCormack.

[38] The second meeting took place exactly a week after the first interview. Mr Macdonald asked Mr McCormack for his version of events and Mr McCormack gave an account substantially along the lines above, but with two differences. First, he stated that he made a flippant remark to Miss Galloway about the boys' "tackle" when they went back into the dressing room after the final, but denied making the statement to the players set out above. Secondly, he made no mention that he had undressed and changed in front of her in the dressing room. He described this as a "fabrication".

[39] Having had confirmation of the remarks, Mr Macdonald was concerned on a number of fronts. First, he had a general concern about Mr McCormack's behaviour. Secondly, he was anxious that there might be a sexual harassment claim from Miss Galloway. Thirdly, from conversations he had had with Mr Rankin, he was worried that the physiotherapists might withdraw their cover as a result of the incident. That could have resulted in the club losing its eligibility to play in the SPL.

[40] In his evidence in chief, Mr McCormack accepted that at the meeting Mr Macdonald told him that his conduct amounted to sexual harassment and gross misconduct and that he was not now going to give Mr McCormack a contract. In cross-examination, Mr McCormack said that he replied to the effect that "if you don't want to give me a contract that's your position, but your manager needs me." Mr McCormack also accepted that Mr Macdonald had threatened to dismiss him.

[41] Mr Macdonald's account chimed with that of Mr McCormack. He informed Mr McCormack that he was not in the circumstances going to issue a written contract to him, to which he replied that he did not need one to prove his worth to the club. Mr Macdonald confirmed that he had mentioned the possibility of dismissal. He said that if the matter was proved, it was a dismissable offence.

[42] In court Mr Macdonald stated that he sought legal advice about his matter. The matter had been placed in the hands of the club's solicitors, but no advice had been received before Mr McCormack was dismissed. There were no further discussions of a disciplinary nature between Mr Macdonald and Mr McCormack between 20 July and 1 September 2008.

The Talk by the Nutritionist

[43] Because of its promotion to the SPL, Hamilton was keen to improve the advice that the players received in a number of areas, including their diet. Ms Downs arranged for Lesley White, a nutritionist, to give the players a talk at noon on Sunday 17 August 2008. This would otherwise have been a day off for the players, but they came in for some light conditioning work in the morning.

[44] The talk started an hour late, because Mr Macdonald and Mr Reid were going to attend, but their meeting with a football agent from Northern Ireland overran. Mr Taylor and Mr Hughes were present at the event. When the talk began, not all the players were present. Some had still to arrive after taking showers. Most of the players were hungry, as they had not eaten lunch. Miss Downs chaired the event. Mr McCormack came in late and went to the back of the room. Shortly afterwards, a player named Brian Carrigan came into the room and went to sit beside Mr McCormack. As a prank, Mr McCormack pulled the player's chair away, causing him to fall on the floor.

[45] This incident caused hilarity among the players. Ms Downs was incensed by Mr McCormack's behaviour, which she regarded as inappropriate for a senior member of staff. Ms Downs thought that as a result of the incident, the speaker lost the attention of her audience. Mr McCormack said that he made the decision on the spur of the moment and that it did not disrupt the talk. He added that the nutritionist had already put them into work groups to do a test, so she was no longer addressing the whole room.

[46] Although she was chairing the event, Miss Downs left the room twice to attend to other matters during the course of the talk. By the time that the chair incident occurred, one player had already expressed disagreement with one of the views expressed by the nutritionist.

[47] Immediately after the talk, Ms Downs, Mr Taylor and Mr Hughes went to the manager's office. They told Mr Reid that the nutritionist's talk had been a failure. Mr McCormack came into the room a little while later and an argument developed about the talk. Ms Downs reiterated that as the senior member of staff present, Mr McCormack owed a duty to set a good example. Mr McCormack rejected that approach.

[48] The discussion in the room became heated. At one stage Mr McCormack began shouting at Mr Hughes, who described Mr McCormack's behaviour as "pretty boorish". Mr Reid said that "there was a bit of feistiness" among all the members of staff. He gave an instruction that at any future event where he was not present, Mr McCormack should be in charge. Prior to the nutritionist's talk, Mr McCormack had not been given a formal role in relation to the health and fitness staff.

[49] When Mr Scott Struthers, the club secretary found about this incident, he thought it was "just a laugh". Mr Macdonald learned of the incident, but did not raise it with Mr McCormack.

[50] Ms Downs stated that a little while after this incident, she had a conversation with Mr McCormack. He told her that he had "to mind his Ps and Qs" and "to keep his head down" for three months in order to get a contract with the club. He denied that any such conversation took place.

 

The Period Prior to Dismissal
[51] Between the Oban tournament and the date of his dismissal on
1 September 2008, no one expressed any concerns to Mr McCormack about his coaching style. Mr Reid said that he was happy with Mr McCormack's first team coaching.

[52] However, Mr Taylor said that the younger players were unhappy when they were taken for training by Mr McCormack. They imitated him by barking like a seal when he was absent. They asked that their training sessions be taken by their own coach. It was suggested that Mr McCormack's style was old school and that he might be bullying some of the players. In particular, Grant Evans was in tears on one occasion and his father complained.

[53] Mr Reid was aware of some young players not being happy training with Mr McCormack, although none of them spoke to him directly about it. Mr Reid said that the matter was raised with him a total of "three, four or five times" by Mr Taylor and Mr McAvoy.

 

Michael Videira
[54] Mr Videira came to
Hamilton for a trial period in the summer of 2008. He was a young player from a college team in the United States of America. He stayed in digs with Mr George Gray and his wife. They were involved in the catering arrangements at Hamilton's ground. Mr Gray is also a football adviser and at the time he spoke to Mr Macdonald on almost a daily basis about various matters.

[55] Mr McCormack often picked up Mr Videira and gave him a lift by car between his digs and Hamilton's ground. On the evening of Sunday 31 August 2008, Mr Videira telephoned Mr McCormack to find out the arrangements for the following day. Mr Videira did not give evidence, but an affidavit was lodged on his behalf. In my view it is unnecessary to consider it in any detail, because Mr Gray did give evidence. He was present in the kitchen with Mr Videira when the telephone call took place.

[56] Mr Gray said that during the course of the telephone conversation, Mr Videira became very upset and tears were running down his face. He held out the receiver to Mr Gray, who could hear Mr McCormack at the other end of the line "ranting, raving and swearing". Mr Gray formed the impression that he had been drinking. From his experience in football, Mr Gray knew that managers act in different ways to try "to pep boys up". He thought, however, that Mr McCormack was acting in an inappropriate way. Mr McCormack denied that he was rude and abusive toward Videira.

 

Dismissal Interview

[57] On the same evening as the telephone call, Mr Gray telephoned Mr Macdonald and told him about what he had observed and heard. Mr Macdonald then telephoned Mr Reid and said that he was going to dismiss Mr McCormack. Mr Reid said he wished to be present, as he felt that it was his responsibility as manager to dismiss Mr McCormack. It was arranged that a meeting should take place the following morning at the Stadium. Mr Reid contacted Mr McCormack and told him to be there, although he did not indicate the purpose of the meeting. Accordingly, Mr McCormack was not given an opportunity to seek advice or to bring a representative. Mr Macdonald also spoke to Mr Videira, who confirmed Mr Gray's account of the telephone conversation.

[58] Mr McCormack's version of the meeting was as follows. When he arrived at the stadium, Mr Reid was very agitated and told him that the chairman wanted to see him in the boardroom. They both went into the room and Mr Reid said "its no working out"; "there's a wee grey area"; "I cannae explain it"; and "we're going to part company". It was then confirmed that he was being dismissed. When Mr McCormack asked for a reason; Mr Reid repeated that it was not working out. Mr Macdonald said "You're not really a number two John, you're a number one." Mr Reid then left the boardroom and Mr Macdonald said that he would sort out the money side of things and told Mr McCormack to get his lawyer to write to him.

[59] Mr McCormack accepted (i) that he was very angry and hurt; (ii) that he stared at Mr Reid during the course of the meeting; and (iii) that he may have said words to the effect "this can't be happening to me". He denied that he was asked to leave the room three times before he did so.

[60] Mr Macdonald's version coincided in a number of parts with that of Mr McCormack, but also diverged from it in significant respects. Mr Macdonald said that he first listed Mr McCormack's indiscretions, following which Mr Reid said "as a result of these we are dismissing you". The reaction from Mr McCormack veered from "Why me?" to being very aggressive and stating: "I'm discussing fuck all with you, I'm going to discuss it with my lawyer." He walked to the door, put his hand on the handle but then returned, sat down and said: "How much am I getting? I want every penny of my contract". At this stage, Mr Macdonald reminded him that there was no written contract.

[61] Mr McCormack became very aggressive to Mr Reid, staring at him for two or three minutes in silence. Mr Macdonald asked Mr Reid to leave room and he then had a much calmer discussion with Mr McCormack. Mr Macdonald said that the contract could not go forward, standing the incidents that had occurred. Mr McCormack asked for compensation to which Mr Macdonald replied that he should see a lawyer. Mr Macdonald said that he had to ask Mr McCormack to leave three times before he actually did so, and that he found his conduct threatening and unnerving.

[62] Mr Reid confirmed his chairman's account, in particular the silent staring. According to Mr Reid, he started by saying that things were not working out. He referred to the incidents involving Miss Galloway and Mr Videira, the dietician's talk, and the need to bring on young players. In cross examination, Mr Reid said that the crux of the meeting involved the problems with the young players and the incident with the physiotherapist. Mr Reid stated: "It was obviously a dagger blow for John, he sort of froze and stared at me for some time, with his eyes popping out of his head."

[63] Hamilton's board of directors was not involved in the decision to dismiss Mr McCormack. That was contrary to the club's normal policy that the board took all important decisions. Mr Macdonald said that on this occasion, it was a matter for him to decide with Mr Gray. However, in cross examination, Mr Macdonald stated that the question of dismissing Mr McCormack did come before the Board at an earlier stage, when it was decided that there was not sufficient evidence to justify dismissal.

 

Miss Galloway

[64] At the first diet of proof, Miss Galloway was abroad and it was thought unlikely that she would give evidence in the case. An affidavit from her was lodged and it was used in the cross examination of Mr McCormack. However, the proof was not completed on that occasion and Miss Galloway did give evidence at the second diet.

[65] It was unclear whether Miss Galloway would have put in a complaint at her own instance about the incidents in the dressing room at the Oban tournament. She had discussed the matter with her brother who had told her that Mr McCormack's conduct was unacceptable. After her exchange of texts with Mr Rankin, however, Miss Galloway explained that there was no need for her to consider the matter further, as she knew that someone else was dealing with it.

[66] Mr McCormack telephoned Miss Galloway on three occasions about matters relating to this litigation. The first call took place about a week after his first meeting with the club chairman. Mr McCormack stated that he had a twofold reason for making contact with her. First, he wished to talk to her about trying to get her a job to develop her career. Secondly, he wished to apologise. He said that during the course of that telephone call, he found out that Miss Galloway had not instigated a complaint.

[67] Miss Galloway painted a different picture of that telephone call. She said that Mr McCormack wanted to relay to her the seriousness of the matter from his perspective - that it was a sackable offence - and that he was disappointed that this had come out after he had tried to assist her.

[68] According to Mr McCormack, after this telephone call he approached Mr Macdonald and said that Miss Galloway had not made a complaint. Mr Macdonald said that the matter was closed and that she should have treated the remarks in the dressing room as being flippant. Mr McCormack said in relation to this conversation with Mr Macdonald that there had been two persons in the room "one is lying and it isn't me". I understood this to be an accusation that Mr Macdonald would lie about this matter.

[69] The second telephone call took place in November 2009, after the current proceedings had been raised. Miss Galloway's evidence was that Mr McCormack told her that his lawyer had asked him to make the call. He denied that he had said that to her.

[70] The third telephone call was made in February 2010, between the two diets of proof, when according to Miss Galloway she was told by Mr McCormack that "it was very convenient that you were out of the country during the court case, because you couldn't face up to lying in court". As indicated above, this evidence was given after he had been in the witness box, so he did not have an opportunity to respond.

 

Legal Framework

[71] The defenders maintain that Mr McCormack was lawfully dismissed for gross misconduct. The type of conduct that will justify summary dismissal will vary depending upon the whole circumstances of the case. There is no fixed rule on the degree of misconduct required and it may be regarded as a classic "jury question": Clouston & Co Ltd v Corry [1906] AC 122, 129.

[72] It is only exceptionally that one incident will justify summary dismissal. Lord President Rodger has suggested that it would be a flagrant breach of contract for a football manager to assault a player, or burn down the stadium: Macari v Celtic Football Club Co Ltd 1999 SC 628, 644. In the present case, the question is whether the various matters relied on by the Club collectively justify summary dismissal, even although singly they would not do so.

[73] In Pepper v Webb [1969] 1 WLR 514, an employer was held entitled to summarily dismiss a head gardener where he had been acting in a very unsatisfactory way for two months: Harman LJ stated (p 517):-

"Now what will justify an instant dismissal? - something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract; and in my judgment if ever there was such a repudiation this is it. What is the gardener to do? He is to look after the garden and he is to look after the greenhouse. If he does not care a hoot about either then he is repudiating his contract. That is what it seems to me the plaintiff did, and I do not see, having done that, that he can complain if he is summarily dismissed. It is said on his behalf that one act of temper, one insolent outburst, does not merit so condign a punishment. But this, according to the defendant, his employer, and I think rightly on the evidence, was the last straw."

[74] Edmund Davies LJ has suggested that the proper approach is to enquire whether an employee's conduct makes "the continuance of the contract of service impossible" Wilson v Racher [1974] ICR 428, 432. A central question will be the degree to which the conduct has undermined the mutual obligation of trust and confidence, upon which the whole contract of employment hinges: Malik v BCCI [1998] AC 20. Has the employee repudiated the contract?

 

Submissions

[75] Mr Davies invited me to accept Mr McCormack as a credible and reliable witness. He submitted that there were no grounds for summary dismissal. That was because: (a) Mr McCormack apologised to Miss Galloway for the insensitive remarks he made in front of her and there was no repetition of that behaviour; (b) the incident at the nutritionist's talk was trivial; and (c) there was no good evidence to support allegations that Mr McCormack had bullied players. Mr Davies submitted that the actual reasons given for the dismissal at the final meeting were opaque. It was not clear that the reasons now put forward were the main considerations at the time.

[76] Mr Upton submitted that Mr McCormack was lawfully dismissed for gross misconduct, comprising the following seven matters:-

his publicly embarrassing and intimidating aggression on the touchline during the Oban Tournament on 12 July;

his repeatedly offensive remarks about and in the presence of Miss Galloway in the changing room that day;

his stripping naked beside Miss Galloway in the changing room that day;

his bullying of young players over July and August 2008;

his publicly embarrassing behaviour in front of the guest speaker on 17 August;

his election to respond to his colleague's commenting on that behaviour by rising to his feet to shout at them from close range; and

the drunken tirade which he directed at Mr Videira on 31 August.

[77] Mr Upton stated that the incidents occurred over a period of just forty days and contended that should be regarded as forming a course of conduct. Following incidents (1), (2) and (5), Mr Macdonald had called upon Mr McCormack to behave with professional respect towards others, including his colleagues and the young players. The incident in respect of Mr Videira therefore constituted the last straw.

[78] Mr Upton made three further points. First, that Mr McCormack's behaviour in the changing room at the Oban Tournament was particularly serious. It amounted to unlawful sexual harassment within the meaning of section 4A of the Sex Discrimination Act 1975. Secondly, the club had a duty to protect their employees from sexual harassment and bullying. Thirdly, Hamilton was entitled to rely on information acquired after the dismissal when seeking to justify the dismissal: Chitty, Contracts (30th ed.) para. 24-014.

 

Discussion
[79] I shall first deal with the question of credibility and reliability. Much of the evidence was not in dispute. Mr McCormack was candid about a number of matters about which he might have been expected to be reticent, in particular the chapter of evidence relating to the remarks made to Miss Galloway.

[80] However, where there was any conflict in the evidence, I unhesitatingly prefer the evidence of the other witnesses to the testimony of Mr McCormack. In my view, the starkest contrast occurs between his evidence and that of Miss Galloway. I found her to be a transparently honest and reliable witness. I reject Mr McCormack's suggestion that she fabricated her account of him changing in front of her in the dressing room. I also accept her version of what was said as they re-entered the dressing room after the final match. While I would have accepted her testimony on its own, it was in any event supported by Mr McAvoy, whom I also regard as a credible and reliable witness.

[81] Mr McCormack tailored his evidence to suit his own version of events on a number of points. While that is understandable, if I were to accept that evidence it would involve my disbelieving Mr Macdonald, Mr McAvoy, Ms Downs, Mr Hughes and Mr Gray. I am not prepared to do so. They gave their evidence in a straightforward fashion and had no particular bias either against Mr McCormack or in favour of Hamilton.

[82] For the sake of completeness, I should add that evidence relating to Mr McCormack's character was led on his behalf from persons associated with other football clubs at which he had worked. They were: Frank Meade, the chairman of Albion Rovers; Neil Watt, a director at Clyde FC; Garry Templeman, the commercial director of Queen's Park FC; Patrick Gahagan, who ran a boys' football team in East Kilbride; and William Scott, the manager of Lanarkshire Development Football Association. In my view these witnesses did not provide any assistance in respect of the matters before the court and I disregard their evidence.

[83] Turning to the central issue, on 1 September 2008 it is clear that Mr Macdonald thought that he was dealing with a very troublesome employee. From his perspective, Mr McCormack had conducted himself in an inappropriate fashion in a number of different contexts over the short period of his employment. Mr Macdonald no longer had confidence in him. Further, Mr McCormack had been put on notice that Hamilton was not happy with the manner in which he was fulfilling his duties under his contract. That had been made plain at the Oban Tournament itself and at the two interviews which followed. Mr Macdonald had underscored his view by mentioning gross misconduct and refusing to issue a written contract.

[84] A curious feature of this case is the absence of documentation in the period leading up to the dismissal. The fact that no contract of employment was ever signed can be left to one side, on the basis of the explanation given at the meeting on 20 July 2008. However, there is: (i) no written record of any complaints made against Mr McCormack by the players or their parents; (ii) no written warning issued to Mr McCormack in respect of any of the seven incidents; (iii) no record of any formal oral warning having been administered; (iv) no report of any internal enquiry or legal advice; and (v) no board minute deciding that Mr McCormack should be dismissed, although the removal of the assistant manager was said to be a board matter. That absence of documentation occurs against the background where Mr Macdonald, a very experienced employer, stated that: "I'm a man who likes things in black and white".

[85] I describe that absence as curious, because where an employee is dismissed for a number of matters it is common to find these set out in detail on his or her file. That matter can be coupled with a further observation. It is not alleged that Mr McCormack failed to comply with any instructions given to him by Hamilton. Such a failure often provides a clear example of conduct that undermines the mutual obligation of trust and confidence owed between employer and employee. In my view, one must therefore scrutinise with care the factors which are said to justify summary dismissal.

[86] With regard to Mr McCormack's behaviour on the touchline at the Oban tournament, it was known - certainly by Mr Reid - that Mr McCormack had a reputation as a hard man before he was appointed. If it had been thought that he should adopt a different style of coaching, Hamilton should have given him appropriate instructions at the outset. That was not done. After Mr Macdonald spoke to him, he did modify his approach for the remaining games at Oban. No further complaint of this nature was levelled against him during the remainder of his employment.

[87] In my view, Mr McCormack's conduct in the dressing room and in particular the remarks made to and in the presence of Miss Galloway were wholly inappropriate. However, he apologised to her, the club did not issue a formal reprimand or warning and the behaviour was not repeated.

[88] I found the evidence that Mr McCormack had bullied some of the younger players over July and August 2008 to be unconvincing. It appeared to relate mainly to one player, Grant Evans. But as these matters were not reported to Mr McCormack, he had no opportunity to reappraise or realign his coaching style. Further, it did not form part of his core duties, which involved the first team. There may be many reasons why players prefer to train with one coach rather than another.

[89] There were clearly a number of factors which contributed to the perceived failure of the talk by the guest speaker on 17 August. They included the players' reluctance to attend on their day off, the delayed start to the talk, the fact that one player disagreed with the nutritionist and Ms Downs leaving the meeting on more than one occasion. However, in my view Mr Scott Struthers, the Club secretary was probably correct to regard the prank with the chair as "just a laugh".

[90] Taking together incidents (6) and (7), there is nothing commendable about someone losing their temper, whether in the workplace or over the telephone. But Mr Reid said that everyone was in high temper during the incident in his office after the nutritionist's talk. At the time, it led Mr Reid to elevate Mr McCormack's position rather than to denigrate it.

[91] With regard to the telephone call from Mr Videira: (a) Mr McCormack could not see Mr Videira and may have had no impression that he was distressed; (b) there could be a whole range of reasons which contributed to Mr Videira's emotional state that evening, but as he did not give evidence that could not be explored with him; and (c) I did not form the impression that this incident figured largely in the reasons given at the dismissal meeting, or that Mr McCormack had a proper opportunity to set out his side of the case.

[92] The obligation of confidence and trust is a mutual one. In my view, Hamilton itself was under a duty to keep the employee fully informed of any perceived deficiencies in his or her conduct during the course of a contract of employment. That did not occur here.

[93] In my view all the incidents, taken together, did not justify summary dismissal. Mr McCormack's conduct did not in my view justify that step being taken. It was not such as to demonstrate that he was repudiating the contract. Accordingly, I hold that he was wrongfully dismissed.

 

Quantum
[94] At the close of the discussion in the Black Bear Hotel, Mr McCormack may have thought that he was appointed for a term of two years. He said that his wife would not have agreed to anything less and also pointed to the fact that he gave an interview to Hamilton Advertiser a few days later which reported him as saying that he had a two year contract.

[95] However, I prefer the evidence of Mr Macdonald on this point. He explained that he only agreed to a one year contract, because it did not make sense to offer Mr McCormack a two year period. If the team was relegated from the SPL after only one season, the loss of the income would have a significant effect on the club's finances. Mr Macdonald also pointed out that all the other staff had one year contracts, apart from the manager.

[96] It was agreed by parties that I should put the matter out By Order to deal with the question of the loss to which Mr McCormack is entitled.