English and Welsh Courts - Miscellaneous

National Industrial Relations Court

		12 January 1973

1. The Hon. Sir Hugh Griffiths: The judgment which I am about to deliver is the judgment of the Court.
2. This is an appeal from an industrial tribunal which, on 20th October, 1972, awarded to Mr. Morrish the sum of £100 on the ground that he had been unfairly dismissed by bis employers, Henlys (Folkestone) Ltd., on 3rd August, 1972. Mr. Morrish appeals against the amount of the award. His employers cross appeal on the ground that he was not unfairly dismissed.
3. The facts are in a small compass and are not in dispute. For nearly four years, Mr. Morrish had been employed by Henlys as a stores driver, and he drove one vehicle all the time. It was his duty to draw diesel oil for the vehicle as and when it was required. On the morning of 2nd August, he drew five gallons of diesel oil from one of his employers' forecourt pumps and recorded this upon a document called a monthly fuel invoice. He entered on this document the date, the number of the vehicle, the amount and grade of fuel, and he signed it. Next day he drew another five gallons, but when he went to record it on the invoice he discovered that the figure of five gallons he had entered on the previous day had been altered to seven. He changed it back to five. Later that day he found that the entry had again been altered to seven, and again he changed it to five. Still later, he saw that a further entry had been made which showed that on 2nd August two gallons of diesel had been drawn by the vehicle he was driving on that day, and this entry was signed by the manager, Mr. Wilkes. Mr. Morrish had by this time learned that the manager had made the previous alterations to his figure of five, and so, after crossing out the number of his vehicle against the entry of two gallons, he went to see the manager. A heated interview ensued. Mr. Wilkes explained that there was no suggestion that Mr. Morrish had in fact drawn seven gallons and not five gallons, but that there was a deficiency of two gallons in the forecourt pumps and the alteration was merely to cover this deficiency and the forecourt staff. Mr. Morrish was not willing to have an entry recorded which showed that two gallons of diesel had been put into the vehicle which he was driving, when this was not in fact the case, even if it was against the signature of the manager. The manager told Mr. Morrish that as he would not accept his instructions to leave the record showing two gallons attributed to that vehicle, he had no alternative but to give him notice; and this he did. On these facts the tribunal held that Mr. Morrish had been unfairly dismissed.
4. Henlys contended that as there was evidence before the tribunal that it was a common practice to alter the records in this way to cover deficiencies, it was unreasonable of Mr. Morrish to object, and he should have accepted the manager's instructions. Accordingly his refusal to do so was an unreasonable refusal to obey an order, which justified dismmissal.
5. We cannot accept this submission. It involves the proposition that it is an implied term of an employee's contract of service that he should accept an order to connive at the falsification of one of his employers' records. The proposition only has to be stated to be seen to be untenable. In our view, Mr. Morrish was fully entitled to refuse to be in any way party to a falsification of this record and the tribunal was manifestly right in holding that he had been unfairly dismissed. The cross appeal therefore fails.
6. The tribunal awarded Mr. Morrish the sum of £100, but apart from the question of his own contribution to his dismissal, with which we deal later, gave no indication in their award of the process of reasoning by which they arrived at this sum. The award was given before the decision of this Court in Norton Tool Co. Ltd. vs. Tewson^[1], in which it was held that it was the duty of the tribunal to state their reasons for an award and to show how the award is made up, and that a failure to do so would amount to an error in law entitling the appellant to have the amount remitted to the tribunal so that the award might be reconsidered and the correct principles applied. As the tribunal did not give reasons for their award or show how it was made up, this appeal must succeed on that ground alone.
7. But Mr. Levy, on behalf of the appellant, in his very able argument takes this further point. He says that the tribunal indicated that they were making some (but we do not know how much) reduction from the award pursuant to section 116(3) of the Industrial Relations Act, 1971. This subsection provides that: -

"Where the Industrial Court or industrial tribunal finds that the matters to which the complaint relates were to any extent caused or contributed to by any action of the aggrieved party in connection with those matters (whether that action constituted an unfair industrial practice on his part or not), the Court or tribunal shall reduce its assessment of his loss to such extent as, having regard to that finding, the Court or tribunal considers just and equitable".

8. In their award, dealing with this point the tribunal said: -

"We also have to take account of the extent, if any, to which an applicant himself has contributed to the situation. We feel, though not without sympathy for the applicant, that when the explanation was given to him, as it undoubtedly was by the manager, he ought to have been content to let the matter rest there so far as the present occasion is concerned and that in our view perhaps he pursued it rather further than was really necessary. Allowing for this fact, however, and taking account of all the circumstances, we have come to the conclusion that we should make an award of compensation of the amount set out in the beginning of this decision".

9. The first point taken by Mr. Levy is that Mr. Morrish's refusal to accept the falsification of the record, attributing fuel to the vehicle he was driving, cannot be an action that caused or contributed to his unfair dismissal within the meaning of subsection (3), because he was justified in refusing to comply with an unreasonable order and was entirely free of fault in taking this stand. If the words "caused or contributed" are to be construed in a purely historical sense, there is no doubt that Mr. Morrish's conduct did cause or contribute to his unfair dismissal. But, as was pointed out by the Court in Norton Tool Co. Ltd. vs. Tewson^[2], this subsection is analogous to the provisions of the Law Reform (Contributory Negligence) Act, 1945. This lends weight to the view that the words "caused or contributed" should be regarded as incorporating some measure of blameworthiness. But whatever construction is placed upon "caused or contributed" it is to be observed that the assessment is only to be reduced to the extent that it is just and equitable. Thus, this point of construction is perhaps academic, for if a man is blameless it can be neither just nor equitable to reduce his award for an unfair dismissal.
10. We cannot regard Mr. Morrish as in any way to blame for the stand he took in this case. It follows that no reduction should have been made pursuant to section 116(3).
11. Mr. Levy takes the further point that where a tribunal does reduce the assessment pursuant to section 116(3) it ought to state the amount by which it does so. This submission flows from Norton's case and it is right. This appeal must therefore be allowed on these two further grounds.

Employee's appeal allowed

Employer's appeal dismissed

Note 1   (1973) 8 I.T.R. 23, (1972) ICR 501.    [Back]

Note 2   (1973) 8 I.T.R. 23; (1972) ICR 501.    [Back]