Let The Devil Wear Black by James F Linden (c)2003

CHAPTER 16

Harry started off. For the first time he wasn’t going to ask the witness if they were a virus expert. It went without saying that I wasn’t.

“Mr Rush. If you would turn to page 22 in the bundle,” he asked. We all turned to the page with my CV on it. The chairman looked at us in an odd way. “Is this a copy of your CV as it was left after you last edited it?”

“No it is not,” I said. “This is a copy of one that was stolen by somebody before I was suspended.”

“Mr Stoke,” the chairman interrupted. “When a new witness comes to the stand, it is customary to set the scene. I just want to clear up a few things and then you may carry on.”

Harry nodded and the chairman asked me a few questions about when I started working for the company, who I worked for and how much I was paid and then it was back to Harry.

“When you were taken to Mr Snaith’s office, were you told why you were being taken there?”

“No. I did ask but they evaded the issue.”

“What did you think the reason was?”

“Because of the curious way that Jim and Deryck were behaving, I didn’t know what to expect. For all I knew my whole family could have gone under a bus.”

At this point, I noticed that Penelope Cam was smiling.

“When did you first sense that things were not as you thought?”

“When I went into Mr Snaith’s office and held out my hand to shake hands with him, he just snubbed me. I couldn’t believe how rude he was.”

“When you look back with hindsight at the events that happened before you were suspended, were there any indications that something strange was happening?”

“Yes. There were quite a few things. There was my personal appraisal which was supposed to have been completed back in May. It was started in August. It’s on page 44 of the bundle. When Deryck Simpson gave me my last pay rise, he apologised for its lack of value and then turned the topic of conversation around to me getting a PGCE teaching certificate which he said I could do in only one year because I already had a degree. I was taken aback by that. In hind sight, it was as though he was saying look at the benefits of leaving the company.”

“Are you saying that this is a vindictive dismissal?” the chairman asked, looking over the top of his glasses.

“It runs all of the way through the case,” I replied.

There was then a pregnant pause which was occupied by the sound of whisperings to the company solicitor and pieces of paper being passed to her.

“Did the company present any evidence at the preliminary hearing?” Harry asked.

“No they didn’t. They only talked about allegations. Their own minutes confirm that.”

“Were you permitted any union representation at the meeting?”

“No I was not. I asked Mr Snaith about it but he said that he didn’t know who the union rep was, which I thought was a bit odd.”

“If you turn to page 20 of the main bundle,” Harry said, “you will see the company’s disciplinary procedures. In these procedures it states that union representation may only be forfeited if the available evidence appears to require speedy action. Were you shown a copy of these procedures when you were taken to Mr Snaith’s office?”

“No.”

“When did you finally see these procedures?”

“About a month afterwards in James Markfield’s office just before we went into the hearing.”

“When you read through them, did you see that the company had breached their own disciplinary procedures?”

“Yes. It was as if they were trying to cover up something.”

“Did you ask the company to supply you with evidence prior to the hearing on 5th January?”

“Yes. I sent Mr Snaith two letters, the last of which would have arrived at K. K. Gazelles about one week before the hearing. I checked with the Post Office to make sure and they confirmed that.”

“Did you receive the evidence as requested?”

“No I didn’t. When I asked Mr Snaith why he had failed to send me even one piece of evidence, he claimed that he had only received one of the letters the morning before the hearing and hadn’t had time to respond to it which seemed peculiar because we got Mr Snaith’s mail the day after it was posted.”

“Was any evidence promised to you during the course of the hearing?”

“Yes. The telephone listing that Deryck used, all of the personal appraisals, an explanation as to the functioning of the ATTRIB command, my training records and a few other things.”

“Were you supplied with all of these?”

“No, I only received some.”

“Mr Rush, from the evidence in front of you, you can see that with the curious exception of your training records, the company actually has no problem with letting you, or any of us for that matter, see the evidence that Mr Snaith promised you in the hearing. If Mr Snaith had supplied you with that evidence for the hearing, would it have made any difference to your defence?”

“Yes it would. With the telephone listing, I would have been able to show that Deryck’s evidence was not reliable. The personal appraisals were so obviously a fix as the first two were missing and the last one was clearly fabricated. If they had let me see the InComp report with enough time to examine it together with the contradictory evidence from Col Burgess, I would be at work now instead of here.”

“Mr Rush, throughout the hearing, we have heard company witness after company witness state under oath that they remembered you not denying writing a program to capture passwords. Even Mr Bexley states in his proof of evidence that he remembers that you did not deny it and he wasn’t even at that hearing. Did you deny writing or developing a program to capture passwords?”

“Yes I did deny it,” I said confidently. “On page 114, near the top, ‘Did you develop a program to capture passwords across the site?’ I replied ‘No’ and on page 115 we have the same question with the same answer.”

“Was asking you the same question more than once a common feature of the hearing?”

“Yes it was. It was as though they were trying to catch me out, hoping that I might slip up but the truth is the truth and there is only ever one version of it.”

“Yes, I’ve experienced that one as well,” the chairman said.

“Did you question the validity of the time stamps during the hearing?” Harry asked.

“Yes I did on at least three occasions, some of which are noted in these minutes.” I turned over the page. “Yes, at the top of the next page, ‘Mr Rush asked Mr Snaith if he was aware that date stamps are not reliable’.”

“Did Mr Snaith indicate to you that he was not convinced that you had answered satisfactorily any of the questions that were put to you?”

“No he didn’t. He was completely satisfied with every answer I gave.”

This sort of exchange went on for a while and quite a lot of the case material was covered. Then it was her turn.

“Mr Rush,” Miss Cam said, “if you would turn to page 14 of the applicant’s bundle. If you look at your diary entry for Monday 24th December 1992, you will see that you did go to the ‘Computer user’s responsibilities course’. Why did you deny that?”

“If you do look at my diary entry for Monday 24th December 1992,” I said, “you will see that in fact I went to the ‘Computer user’s responsibilities course advisory meeting’. You’ve truncated the quote in the same, deceptive manner as Sturges Nother, creating a similarly negative distortion. I have said all along that I went to an advisory meeting.”

“But you knew what was on the course though didn’t you Mr Rush?”

“I’m afraid that I have no idea what ended up in the actual course as I have never been on it. I asked Col Burgess if I could go on the course and he said that as I hadn’t been on it, I could. He said that he would sort it out for me but failed to do so.”

“You can call it an advisory meeting if you like but it was still a course wasn’t it Mr Rush.”

“I’m sorry but it was not. It was nothing more than an advisory meeting. If you look at the rest of the diary page, you will see that on 19th January 1993, I went into Manchester to order a copy of the Copyright Designs and Patents Act 1988 and on the 20th I picked it up. On the 21st there is a note about a conversation with Col Burgess about advice that I gave him to pass on about the legality of various parts of it. An advisory meeting is what it was and advice is what we all see here. You can also see that the IEHO course that I went on was the two day course known as ‘Second cousin of NEBOSH’ and not the week long course as stated by Deryck Simpson when he gave his evidence.”

“So, Mr Rush, you admit that you were given a piece of paper to take away.”

“The notes that we were to write our comments on and then return to Col Burgess, yes, and that is exactly what I did with my copy. As far as I know, he still has mine.”

“So you went to the course and you were given the document on page 58 of the main bundle then?”

“I went to the advisory meeting and no, the document on page 58 isn’t one we were given. The wording is significantly different for a start. Mr Snaith has already admitted in the hearing that there were at least three different versions. The original never had a place for an attendee to sign for a start.”

She tried grilling me for a bit longer but she was getting bitten down to the bone each time because I wouldn’t allow here misrepresentations to go unchecked. Every time I gave her a fact, she would return a perverted version of it to me as though she had forgotten part of it. Surely solicitors had to have some abilities regarding logic and memory. They do have to pass some sort of exam to be able to practice their trade, don’t they? We’re not talking about chiropodists. The chairman seemed very astute and I, perhaps naïvely expected her to display similar abilities. Soon however, the proceedings were interrupted by lunch. We packed up our things and went to our respective destinations for the designated hour.

* * *

After lunch, the three of us found ourselves in the same room. We took our places and waited. After a while, the union tribunal member came in and seated himself. He started to look though his documents and after about five minutes, with nobody else having entered the room, I decided to start a cautious conversation with him. Anything too specific could jeopardise the case I thought, so I kept it general.

“Do you actually read through all of the evidence that’s given to the tribunal or do you just read the bits that are pointed out during the hearing?” I asked.

“Oh, it depends,” he said. “If you’re in a hearing that only lasts a day then you don’t get chance to read much of it, just reading the parts that are used in the case. If a hearing goes on for a few days, we try to read through as much of it as we can. Bundles that are submitted by company’s tend to be full of irrelevant rubbish anyway. They rarely refer to much more than about a tenth of it. It just seems like a waste of paper to me. One of the cases that we’ve got on at the moment is a sexual discrimination case. There’s this girl who is on the stand at the moment, she’s gone on first and all she’s got is the company’s own evidence and she’s using that against them. We’re all hoping she’ll win.”

At that moment the company grey–suits came in and started to sit down. Harry and I looked at each other, horrified that a tribunal member was letting us in on the thoughts of the tribunal while a case was ongoing and also that they were hoping that a particular side would win when they hadn’t even heard what the other side had to say for themselves. This seemed as unorthodox as taking a camera crew into a jury room. I wondered what he was saying to others about our case.

We all waited for another ten minutes in silence but eventually, the chairman and the other lay member walked in and sat down.

“I’m sorry we’re a bit late but we nearly had a nasty accident,” the chairman said. “We nearly lost a lay member.”

The member in question grinned guiltily.

“We were standing, talking, waiting for the lift to come. The doors opened and without looking, our friend here started to walk forward to step into the lift and we nearly lost him down the empty shaft. It had gone past and the doors had opened so there was nothing between us and the bottom of the lift shaft,” he said.

I must admit that the image of the ‘I survived the A. Rush vs. K. K. Gazelles’ T–shirt sprang to mind along with another image of a lift maintenance engineer lying unconscious in a locked broom cupboard. Maybe all of the faces now had six spots painted on them.

“Now. I’ll remind you that I want this hearing over today. I want it finished by half past two,” he said.

I looked at my watch, we had just over an hour.

“Now, if you would like to continue,” he said to Miss Cam.

“Yes. Mr Rush,” she started. “Why did you claim that you were not permitted to view any evidence when we have already seen that you were?”

“I was not allowed to see any evidence that could have been used by me to support my case. The only so–called evidence that I was allowed to see during the hearing was a section of the InComp report that had been chopped off so that I wouldn’t see other parts of it. If Mr Snaith had permitted me to see the rest of this page, I would have been able to see that evidence had been fabricated by the company.”

“Mr Snaith testified to us that Mr Markfield said that he was surprised by the fact that you handed the evidence back when you were in fact allowed to keep it.”

“I’m sorry but I took the trouble to contact Mr Markfield shortly after I heard this curious evidence from Mr Snaith. He informed me that no such conversation had ever taken place between himself and Mr Snaith. As far as the other false assertion goes, Mr Burgess took back that piece of evidence from me after it had been used in the hearing.”

“But you were given those listings to take away Mr Rush.”

“They were the original listings and as far as I could make out, the only copy in existence.”

“You said that you requested evidence and that Mr Snaith had even said that he would supply you with evidence. What difference would it have made to have that evidence in the hearing Mr Rush?”

“Well, for a start, if I had been given access to the InComp report, I would have been able to show that it was little more that a load of rubbish.”

“Well, we’ll start with the first paragraph then shall we?” she said.

She must have thought that I was generalising and wouldn’t have been able to rubbish the whole report but even the first paragraph contained a contradiction.

“Certainly,” I said. “It says that the data was restored onto a dedicated PC does it not?”

“Yes,” she answered uneasily.

“If you look at the listings on page 75 through to 82, they all have the American date format whereas the rest, from 83 to 85 all have the English date format. If I had been given time to look at this evidence as I had requested, I would have been able to warn Mr Snaith that he was looking at evidence that had been tampered with. If the data had been restored onto a dedicated machine, there would only be one date format.”

She hesitated, clearly wondering if it was wise to continue with this line of cross–examination but this was only the first question she had asked about it.

“Let’s look at VISUAL.BAS, the Cascade virus simulator then.”

“To be quite frank with you, I wished that I could have had a look at it as well. I did write a program that cleared the screen, drew the company logo on it and then when a key was pressed the letters fell to either the top, the bottom or the sides and then the action rotated, a bit like a cement mixer. I’m certain that the Cascade virus doesn’t clear the screen and draw the Gazelles logo, so only a rank novice would think that it was the Cascade virus or even a simulation of the non–virus part of the Cascade virus.”

“Are you calling Mr Nother a rank novice?”

“If the program I wrote is the one that Mr Nother called a simulation of the Cascade virus then I suppose I would be. If instead, he saw something that K. K. Gazelles or somebody else had planted, I would not. You could also look at the list of programs on page 71 of the bundle. The start date on the Robot program is 26th of February. Harry didn’t give me the idea to write the program until August of that year so there is unambiguous evidence of date rigging. No, Mr Snaith knew exactly what he was doing when he didn’t let me have the evidence.”

“But these are only details Mr Rush,” she said.

“You chose these details. If you are not yet satisfied that I can pull apart all of the InComp Report, we can carry on proving the point with the rest of it, starting with the next paragraph.”

There was a pause as Miss Cam turned back a thick wad of pages.

“Who gave you permission to use the computers Mr Rush?”

“Deryck Simpson did,” I said firmly and confidently.

“Oh come off it Mr Rush,” she roared, thumping the desk. “Mr Simpson has already testified that he did not give you permission. Are you calling him a liar?”

“No. He is calling me a liar.”

“No, you are calling him a liar.”

“No, he’s calling me a liar.”

“I will decide who is telling the truth Miss Cam,” the chairman interrupted sternly.

I was certain that by then, it had become clear to all that she wanted me to commit perjury so that it would make it appear that her witness had told the truth while under oath. While the chairman wrote something down, she stared at me as though trying to intimidate me so I looked back at her in the same way.

“Mr Rush,” she said on yet another tack. “All through the case you have asserted that the company was trying to waste time and slow everything down when in fact it was you who was slowing things down wasn’t it? The hearing was at the beginning of January and the appeal was to be heard at the end of January but you intervened and stalled the process. Mr Snaith arranged with you to meet on 16th February and you did not attend. You claimed that you gave Mr Bexley reasonable notice that you were not going to attend. The letter on page 133 of the main bundle, dated 10th February wasn’t received until 17th February how is Mr Bexley supposed to think that was reasonable notice, being received the day after the meeting?”

“The letter shown on page 133 is the copy of the letter that was sent on the 10th, the day after Mr Snaith’s malicious telephone call. I can tell that because it is clearly the top copy. The photocopy of the envelope on page 137 is the envelope that carried the reminder that I sent to him on 16th February a copy of which is in the applicant’s bundle on page 9. I don’t know why Mr Bexley has chosen to misrepresent things like this. Your guess is as good as mine.”

“Are you calling Mr Bexley a liar?” she asked.

The chairman stopped writing straight away this time, giving her an icy look.

“Honesty,” I started, “was an aspect of Mr Bexley’s personality that I did not have the opportunity to become familiar with.”

“Then, shortly after the interlocutory meeting,” she said, “you decided that you weren’t going to resign but take the company up on the appeal procedure once more. Mr Bexley helped you out on this but all you did was delay and delay. The letter of 18th March gives you dates in the first week of April for the appeal. Why did you delay the appeal until the end of April?”

“I contacted James Markfield as soon as I received the letter of 18th March, telling him that I was free virtually any time and he said that he would contact Rachel Crabapple and agree a date with her. The next thing I knew was that it was going to be a few weeks later on 18th April. So, as you can see I didn’t delay the process.”

Once again, she stared at me while the chairman caught up with his notes. I wondered if this was something that all solicitors were trained to do or if she had run out of ideas.

“Mr Rush,” she started, “you said just now that the telephone call from Mr Snaith on 9th February was malicious. He was in fact perfectly justified in making that threat to you during that telephone call wasn’t he?”

“No he was not.”

“But he was justified in making a threat like that Mr Rush.”

“No, there is no justification for threatening a person like that. I had no reason to doubt what he was saying as it was not different from the way he had handled the case so far.”

“So he was justified then?”

“There is no justification for the making of a malicious telephone call. I believe it’s even against the law.”

She looked at her notes, avoiding looking at me or the chairman who also happened to be looking at her.

“Mr Rush,” she said, still looking at her notes. “When somebody gives an employee limited permission to do something like Mr Simpson gave you permission to do a poster on the computer, and they then abuse that permission, it is like if somebody asks if they can go home early one day and then after that they go home in the morning isn’t it?”

“No. I disagree,” I replied.

“But it is though isn’t it?”

“No. I’m sorry but I don’t see how it is. Perhaps you could explain.”

“But they are the same though aren’t they?”

“No. I don’t think that they are.”

“Is this leading anywhere Miss Cam?” the chairman asked.

“Yes it is.”

“Well could you just get on with it then. We’re running out of time and I’m sure that you don’t wish it to be you that’s responsible for the hearing going over into yet another day, do you Miss Cam?”

“No more questions,” she said.

Harry shook his head.

“I think I might have one,” the chairman said.

He started to thumb through the reams of notes he had built up during the case. While he was doing that, I noticed that Penelope Cam was still staring at me. It was a wild, psychotic stare like a mad dog, or in her case, a mad toad. It was as though somebody had forgotten to switch her off. She couldn’t shout at me or throw things at me or even walk up to the witness table and kick me so staring at me was all she had left. All of a sudden, I felt sorry for her. She seemed like a bewildered child, lost in a world of management contradictions, lied to so many times that she couldn’t do her job effectively any more. I was just toying with the idea of holding up my hand and asking the chairman if it was normal practise for the respondent’s solicitor to try to stare out the applicant when he found his question in the notes.

“Mr Rush. You said that when you joined the company, you told the man who interviewed you that you were self–employed. What was your reason for doing that?”

“I had heard of stories where an employer would unearth accounts of an employee and would think that there was something going on, like tax evasion or something. I thought that as I was actually above board anyway, I should tell him about it.”

“Okay,” he said, “you can go back now.”

I walked over to my seat and sat down next to Harry.

“I thought that you acquitted yourself pretty well there,” he said quietly.

“Mr Stoke,” the chairman said. “Have you got any more witnesses?”

“Do you think that we should call Rachel?” he asked me quietly.

“No. I think it would be quite risky. Everything’s been said that needs to be.”

“No,” Harry said to the chairman. “Miss Crabapple was only going to reinforce what Mr Markfield was going to say about the appalling conduct of Mr Bexley in the appeal and we didn’t have the same foresight as K. K. Gazelles in getting a proof of evidence from him before he died.”

“Okay. What about you, Mr Stoke?”

“Well, apart from confirming that I was working on the computer project that Alan referred to in his evidence, there isn’t a lot that isn’t technical.”

“Your not going to contradict Mr Rush are you?”

“No.”

“We’ll take that as having been said then. Well, I think that will be all,” he said and put his pen down.

That was it. Everything had been said and it was all over. Miss Cam leaned forward.

“May I make a few submissions?” she asked.

The chairman sighed in the way that he did only for Penelope Cam. He picked up his pen again and started writing as she launched into a text she had prepared earlier. It turned out to be quite a performance, bringing up irrelevant case after irrelevant case and reading them all out in full. Sometimes, it seemed that the only the connection between these so–called test cases and our own was that they had been conducted in English. I wondered if she thought that the tribunal would forget the evidence in our case and base their findings instead on these cases but a bad case was a bad case and no amount of submissions could make it into a good one. When I was a child, I imagined that I could say a given world a certain number of times before it would become ‘used up’. I didn’t know whether it would be just for that day or forever — the cost of being wrong, with never being able to utter that word again, was too high so I learned other words to use instead so that I could avoid the problem. Years later, I heard somebody else talking about their theory on this topic as well. They called it the ‘word bag’. Miss Cam did seem to be going on a lot.

Reminiscent of those pastel drawings of court proceedings that are all that is allowed to be shown on British television, I drew a sketch of her as she talked using just pen on paper. It was rather therapeutic. She twiddled her pen for the first half hour but towards the end, she started to hold it like Norman Bates held the knife in the shower scene in Psycho. This, I captured perfectly. I’m sure this subconscious behaviour revealed more about the inner workings of her mind than she would have liked us to know. This was one for the scrapbook I thought. She went on and on and I noticed that one of the lay members flinched every time she brought a new test case into her lecture. It was as though she had left all of her law course notes next to her prepared submissions at home and in a hurry, she had picked up the wrong lever arch file. She had been talking for one hour and ten minutes.

“Is this one relevant in any way Miss Cam?” the chairman snapped, looking conspicuously at his watch.

“If you want to, I’ll just read out the case references,” she suggested.

“All right.”

She carried on for another three or four minutes just reading out the references. Her performance eventually came to an end with her failing efforts to utter the phrase “Natural Justice”. She just couldn’t say the words. She had emptied her word bag. After three or so unsuccessful attempts, usually faltering on the word “Nashura”, the chairman spoiled the entertainment by saying it for her, something that turned out to be even more entertaining. He looked seriously pissed off. Then he looked at Harry but Harry just shook his head. With a renewed confidence, the chairman put down his pen.

“Right. We’re clearly not going to come to a decision today,” he said, glancing at his watch and then looking daggers at the company’s solicitor. “We are going to meet on 29th December to come to our decision. None of you are required to turn up; only the tribunal. We will let you know by post the result of the decision. Will the Summary Reasons be all right for everybody or do any of you want the Reasons in Full?” he asked.

Just to know what the result was would be enough so we shook our heads as did the company.

“Right, so I will just prepare the Summary Reasons. If any of you do decide that you require the Reasons in Full then you can apply for them through the tribunal office and I will write them out. Are there any questions?”

Everybody shook their heads. The chairman and the other two picked up their things and walked out of the room.

“Well. It’s all over,” Harry said. “All we can do now is sit back and wait for the result.”