I N T E R N A L
At the Tribunal
Before
HIS HONOUR JUDGE N HAGUE QC
MR A C BLYGHTON
MR K M HACK JP
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
JUDGE N HAGUE QC: This is the preliminary hearing of an appeal brought by Mr Hodges against the decision of an Industrial Tribunal sitting at Bristol, the decision being sent to the parties and entered on the register on the 28th October 1992.
Any appeal to this Appeal Tribunal can only be based on an alleged error of law on the part of the Industrial Tribunal. Parliament has determined that questions of fact are for the Industrial Tribunal alone and that their findings of fact cannot be challenged before us.
Mr Hodges had been employed by the Respondents, Cook Plant Sales Limited, as a salesman. According to the facts found by the Industrial Tribunal he had held a similar post in another firm, carrying on the same sort of business, which was in the construction plant industry. It seems to be clear that his employment was terminated at a meeting held between him and Mr Cook, of the employers, on the 17th July 1992.
When Mr Hodges came to make his application to the Tribunal, apart from alleging an unauthorised deduction of wages which I will come to, he alleged:
"constructive unfair dismissal."
Those words, which if I may respectfully say so he does not quite fully understand, had been suggested to him by the Bristol Law Centre. The reason for that allegation appears in paragraph 10 of his Notice of Application, where he says that his wages had been paid late, and in particular, his June wage had been presented twice and returned marked "refer to drawer". He also goes on to say, and this may be of importance, there were no written reasons for dismissal on the 17th July 1992.
The evidence before the Industrial Tribunal was that Mr Cook had summoned Mr Hodges to the meeting on the 17th July 1992. He had given him numerous warnings about his performance in the previous months and there had been one or two other incidents which we need not trouble about.
Paragraph 5 of the Tribunal's decision sets out four grounds for dismissal. In each case there was a dispute about those grounds but in each case the Industrial Tribunal preferred Mr Cook's evidence.
In paragraph 6, the Tribunal say correctly, that this was a conduct case and they had to consider the rules stated in British Home Stores Ltd v. Burchell in determining whether the employer acted fairly. They go on to consider that and come to the conclusion that Mr Hodges was dismissed for the justifiable ground of misconduct and that his dismissal was not unfair. Those findings are findings of fact from which there can be no appeal to this Tribunal.
What Mr Hodges has said before us is this, that his real complaint was that he had been constructively dismissed and that the Chairman of the Industrial Tribunal refused to allow him to put that forward, which he says was wrong, an improper procedure and indeed a breach of the rules of natural justice, so he was unable to adduce evidence about his wages having been paid late. However, for there to be a constructive dismissal there must be a termination by the employee of the contract. That is expressly provided by Section 55(2)(c) of the Employment Protection (Consolidation) Act 1978; and indeed the whole purpose of that subsection, and the concept of a constructive dismissal, is to equate a situation where an employee justifiably terminates his contract with that of the employer terminating the contract. Mr Hodges alleges that what happened at the meeting on the 17th July was that he complained about the non-payment of his wages and indicated that he could claim constructive dismissal. It is far from clear to us that, even on his own story, that Mr Hodges himself terminated the contract. For that purpose he would have to say "I am leaving", or words to that effect. His claim of a constructive dismissal is really quite inconsistent with his complaint that he had no written reasons for dismissal. If he had been self-dismissed it would be ridiculous to have written reasons for it, as written reasons would only be applicable where the employer terminated the contract. So we are frankly very sceptical as to whether there really was any termination by Mr Hodges of the contract of employment. But even if we are wrong about that, and there was such a termination, in our view it cannot make any difference, for this reason. A constructive dismissal is simply a form of dismissal and even if there has been a constructive dismissal it is still open to an employer to contend, and for an industrial tribunal to find, that it was fair. The considerations in that regard, which are set out in Section 57 of the Act. apply equally to where there was a dismissal by an employer or a constructive dismissal. It seems to us that, for the reasons which are set out very clearly in paragraphs 5 and 6 of the Tribunal's decision, it is quite plain that the employer in this case satisfied the onus on him of showing that the dismissal was fair. So even if Mr Hodges had terminated his contract, it would have made no difference.
For those reasons, we think there is really no tenable appeal on the question of unfair dismissal.
There was also another claim which Mr Hodges made, about deduction from his wages. He claimed that he was owed £667.04 for money improperly deducted from his wages. The Tribunal when they deal with that claim, first deal with £270 of it. That appears to have related to a claim by Mr Hodges that he was entitled to that sum for commission on certain sales. The Tribunal found that he was not entitled to that commission. That point went against him, but in any event as it seems to us, it was not really a claim under the Wages Act at all. It was a claim for commission, not a claim in respect of any deduction from wages. Similarly, it had become apparent that what Mr Hodges was really complaining about in respect of the rest of that sum, that is a balance of nearly £400, was that he was owed that amount in wages which he had not been paid. That is, with respect, quite different from saying that the employers had improperly deducted something from his wages. If he is due wages which have not been paid then he is entitled to go to the County Court to recover those monies by way of an ordinary claim in the contract, but that is not a matter which comes within the jurisdiction of an industrial tribunal or this Appeal Tribunal. That part of the claim, is outside our purview altogether, but that is of course entirely without prejudice to any contractual claim he may have.
For those reasons we think this appeal has no prospect of success on any point and we therefore dismiss it.