English and Welsh Courts - Miscellaneous

696/73

The Hon. Sir Hugh Griffiths
A. F. Blacklaws, Esq.
and
R. Davies, Esq.

The Hon. Sir Hugh Griffiths: This is an appeal by Mr. James Craig from the decision of an industrial tribunal which rejected his claim for a redundancy payment against his former employers, British Railways.

Before the industrial tribunal Mr. Craig was represented by Mr. J. D. Hosie. Mr. Craig has been unable to attend personally before this court this morning and the court has scant information of the background of Mr. Hosie which led Mr. Craig to choose his as his representative. It has been suggested ] that he is a gentleman with trade union experience and it appears that he may also have had legal experience, certainly if he was responsible for drafting the grounds of appeal. This appeal has been presented before this court by Mr. Fraser who was at a disadvantage in that he was not present at the proceedings before the industrial tribunal.

Mr. Fraser said very frankly at the outset of the hearing of the appeal that he could not hope to succeed in persuading this court to reverse the findings of the industrial tribunal and that the best for which he could hope was to persuade the court that the proceedings had been conducted in such a way that there had been a denial of justice and that, accordingly, either the case should be referred back to the same industrial tribunal for further evidence to be heard or, alternatively, there should be a re-hearing before another tribunal.

Now in advancing that submission Mr. Fraser at the outset of his argument formulated the two following propositions: firstly, that an industrial tribunal has a duty to ensure that all relevant evidence is before it and, secondly, that this duty is particularly high if one of the parties is not legally represented. This court is quite unable to accept the propositions formulated by Mr. Fraser. It is the duty of the parties to present the relevant evidence before the tribunal. That is not, of course, to say that where persons appearing before a tribunal are not legally qualified or are manifestly unversed in legal procedure that the tribunal will not give them such assistance as they can in presenting their case. But it cannot be too emphatically stated that the duty lies upon the parties to place the relevant evidence before the court, and this was emphasised in a recent decision of this court in Bagga vs. Heavy Electricals (India) Ltd.^[1] in which the President said:^[2]

"Parties must not think that they can prosecute a case in front of the tribunal, appeal and come to this court producing additional evidence which they could have placed in front of the tribunal and then expect this court to allow them to re-open the case and add to the evidence. The rules applied by the court are clear. Such evidence will be admitted only if some reasonable explanation can be produced for its not having been put before the tribunal of first instance, and, if the new evidence is credible, and if it would or might have had a decisive effect upon the decision."

However, Mr. Fraser developed his argument by referring us in detail to the reasons given by the industrial tribunal, taking three points which he submitted showed that the industrial tribunal had not fully appreciated the issues before it and that accordingly there was a great risk of a serious injustice being done unless the matter was re-investigated. This is a matter to which this court had naturally given anxious consideration because if it were apparent that an injustice had been done the court would not hesitate to intervene.

Now, the facts which led up to the termination of the appellant's employment were these: he had first been employed by British Railways on 15th November, 1951, and had remained in their employment until 28th July, 1972. On the face of the documents before the tribunal it appeared that there would be a dispute as to whether he had been dismissed or whether he had himself terminated his employment. It has, of course, to be appreciated that if he had himself terminated his employment then unless the case fell within the exceptional circumstances provided for by section 3(l)(c) of the Redundancy Payments Act he would have no claim for redundancy. But at the outset of the tribunal hearing British Rail conceded that his employment ceased in such circumstances as to constitute a dismissal; so that particular issue was not one which the tribunal was required to investigate.

Employment ceased because the place at which the appellant was to work was being changed. The respondents were moving certain of their work from their Baileyfield Road depot, Edinburgh, to Slateford Road depot in Edinburgh and the appellant had been employed at the Baileyfield Road depot. If he was to remain in employment he would have to work at the Slateford Road depot. There were discussions betweeen British Railways and the appellant's trade union in order to work out how the transfer should take place. A scheme was evolved and details of this were posted up on the notice board at the Baileyfield works. A change from Baileyfield to Slateford Road would have involved the appellant in extra travelling. In all it would have come to about an hour and 20 minutes a day. He also maintained that his wages would have been less.

He was offered an opportunity by British Railways to accept employment under the new conditions at the Slateford Road deput but he refused. The sole issue before the tribunal was whether the offer of employment at the Slateford Road depot constituted reasonable alternative employment within terms of section 2(4) and whether he had unreasonably refused the offer. The tribunal concluded on the evidence before it that it did constitute reasonable alternative employment, that the appellant had unreasonably refused it, and consequently he was not entitled to any redundancy payment.

I turn now to consider the specific attack which Mr. Fraser has placed with great clarity before this court on the chairman's reasons. He made three points. He said firstly that there was no finding in the reasons of the circumstances in which the appellant was dismissed. He submitted that the finding that British Railways conceded that the circumstances amounted to dismissal didn't accord with the evidence. With the utmost respect to Mr. Fraser, there is nothing in this point. The concession made by British Railways that Mr. Craig had been dismissed was a concesson in Mr. Craig's own interests and that concession, once having been made, it would have been a pure waste of time to have investigated the matter any further.

The second criticism that is made is there was no sufficient finding of fact that a notice in writing of the terms of the alternative employment was given in accordance with the provisions of section 2(4) of the Act. It is established by a decision of the House of Lords in McCreadie vs. Thomson & Maclntyre (Patternmakers) Ltd.^[3] that a notice posted on a noticeboard which can be read by all the employees is a sufficient notice for the purposes of the subsection. As to this, the tribunal's findings are as follows:

"The applicant's contract of employment involved his work at Baileyfield Road. About 70 persons were involved in the removal. Protracted negotiations took place between the respondents and the men's trade union in order to work out suitable conditions for the removal and for the new employment and the agreed results were posted on the notice board in the Baileyfield works. The applicant was aware of these and made application for a redundancy payment which was refused."

This appears to the court to be a clear finding that a proper notice of the change of conditions was made, posted up on the notice board and was known to the appellant. Furthermore, it is to be noted that although he was represented no point was made before the tribunal that this was a requirement of sub-section (4) that had not been complied with. There is no substance in this second criticism of the chairman's reasons.

Thirdly, Mr. Fraser referred the court to those decisions which established that the onus lies upon the employer to show that the offer is one of reasonable alternative employment and that it had been unreasonably refused. In particular, he referred to the decision of this court in Jones & Another vs. Aston Cabinet Co. Ltd.^[4]. He submitted that there is no sufficient finding in the reasons of the tribunal of the manner in which that onus was discharged. He criticises the tribunal for dealing at some length with an argument which was apparently placed before them based upon a notional loss of earnings by Mr. Craig arising out of the fact that he had longer to travel to and from work and the tribunal rejected that argument. Mr. Fraser places no weight upon it himself - he described it as a purely peripheral point - and his criticism of the tribunal as I understand it is that they directed their attention to the argument in such a way that they lost sight of the real point in the case, namely, whether the wage structure was such at the new depot that his wages would be less.

Well now, of course, Mr. Fraser wasn't before the tribunal; nor was Mr. Smart who has presented the case on behalf of British Rail before this court. This court has no means of knowing how the argument was developed by Mr. Hosie. It may well be that Mr. Hosie presented this as his best point and that that accounts for the tribunal dealing with it at length. We can see no criticism that can be made of the chairman for disposing of an argument which does not appear to the tribunal to be sound.

Mr. Fraser then submitted that having done that the tribunal never really directed themselves to a comparison of his rate of wage in his previous employment at Baileyfield works with that which he might expect to receive at the Slateford Road depot. Again, with respect to Mr. Fraser, that doesn't appear to be right because in a separate paragraph of their reasons the tribunal say:

"We were not satisfied on the evidence that there would have been any material change in the applicant's total remuneration."

British Railways put in what one would have supposed was the best evidence of comparative earnings. They produced an analysis of the applicant's last four weeks' wages and they compared it with the man who is his successor in his employment. That material was before the tribunal and it showed that his successor was earning marginally more than the appellant had been immediately prior to his dismissal. This was material upon which the tribunal were entitled to act. It is true that they have not set out at any length their analysis of these documents but they are simple and it is clear on the face of them what they show.

Accordingly, this court has come to the conclusion that Mr. Fraser has failed on all of the points that he has raised to show that there was not evidence upon which the tribunal were entitled to come to their conclusion or that there was any miscarriage or risk of miscarriage of justice in the decision at which they arrived.

Accordingly, this appeal must be dismissed.

Appeal dismissed

Note 1   (1972) 7 I.T.R. 70.    [Back]

Note 2   (1972) 7 I.T.R. at 72 B.    [Back]

Note 3   (1971) 6 I.T.R. 171.    [Back]

Note 4   (1973) 8 I.T.R. 356.    [Back]