Author: Joe

Appeal No. EAT/140/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 March 1993

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MRS T MARSLAND

	MISS A P VALE

MR J F O'MULLANE	APPELLANT

MINISTRY OF AGRICULTURE FISHERIES AND FOOD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON

	

	JUDGE HARGROVE OBE QC:  Mr 0'Mullane was employed by the Ministry of Agriculture Fisheries & Food between August 1964 and 30 April 1991.  At the date when his employment came to an end he was working as a land management adviser.  On 14 September the employers offered him flexible early retirement.  It was emphasised that whether that offer was accepted was a voluntary decision to be made by the employee.  He requested further details and these were supplied by letters of 5 October and 11 October.  On 22 October he wrote stating that he found management within the service intolerable and he concluded:

"Accordingly you may now proceed with FER arrangements."

Later he attempted to get better terms but reiterated that his decision of 22 October, stood.  I say at once that there is nothing to be said against Mr 0'Mullane attempting to obtain better terms.

	At the end of April 1991, in accordance with the FER arrangements, he left.  He says that he was constructively dismissed.  He was pushed out and that if he did not leave he felt matters would get worse.

	His objection today is that the decision of the Tribunal that they had no jurisdiction because there was no dismissal (they seem to have dealt with it as a preliminary issue) is perverse.  First of all because the full facts were not heard.  Secondly there was no full disclosure of documents.  It seems that the question of dismissal was taken as I have indicated on a preliminary basis, and it is equally clear that he, and someone from his employers gave evidence before the Tribunal.  He says he did not put forward all the evidence he would have liked to have put forward and was in fact pushed out from doing so by the attitude of the Chairman and that he should have objected earlier to the fact that that was occurring.  It seems to us that the Tribunal which of course is master of its own procedure, was correct in taking this as a preliminary matter because otherwise a great deal of time would be spent going into other issues.  The way in which they decided the matter is as follows, and it occurs in paragraph 6 of the decision:

"We are very certain in our own minds, having considered the evidence, seen the two witnesses involved, [and I interpose here that on his admission to us today must have included the employee] and considered all the documentation, that this is a voluntary cessation of employment relationships.  We find that the respondents put no pressure on the applicant at all, or made life difficult for him or threatened him that if he did not accept these terms life would get worse and awful things would occur to him.  From the very start these respondents have been repeatedly careful in saying this is a "voluntary scheme", "the offer is open", "it is up to you".  Nowhere do we find, or is there evidence which shows that the respondent did anything other than underline that fact and repeatedly so.  There was no pistol here at Mr O'Mullane's head:  there is no threat that things are going to get worse:  he was told plainly there was an offer to go early, and he tried, (give him credit for that), to get a slightly better offer, but having realised that the respondents were not prepared to do that, he stuck to his guns and wrote "Accordingly, you may proceed with FER."  That is what they did, that is what he instructed the respondents to do.  This is not a dismissal, this is a consensual separation.  There is no jurisdiction here and the application is dismissed unanimously."

The Appellant also makes further points that that decision was wrong in other ways.  That, for example, there is an error when the Chairman refers to Western Excavating v Sharp having only one case following it where in point of fact there were others and that he says, that the concept of constructive dismissal has moved on since then but we are satisfied that on this hearing there is nothing in any of the points which have been raised.  The decision was one of fact.  The correct test was applied and the Tribunal heard Mr 0'Mullane's evidence and apparently he now regrets he did not give more.  That was of course a matter for him to decide at the time.

	In the light of that no further step shall be taken in this appeal.  That is a unanimous decision of this Tribunal.

© Copyright 1993

EAT/140/92

EAT/140/92

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