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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Shortall (t/a Auction Centres) v Carey [1994] UKEAT 351_93_2605 (26 May 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/351_93_2605.html
Cite as: [1994] UKEAT 351_93_2605
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE KNOX
MRS M L BOYLE
MR K M HACK JP
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR M SHORTALL
IN PERSON
For the Respondents MR M DULOVIC
(OF COUNSEL)
Buss Morton
The Priory,
Tunbridge Wells
Kent TN1 1JJ
MR JUSTICE KNOX: We have before us an appeal and a cross appeal from a decision on a review by the Industrial Tribunal at Ashford, in proceedings by way of originating application brought originally by Mr M Carey against Mr Shortall who trades as Auction Centres. In fact originally the proceedings were constituted with a different Respondent from whom Mr Shortall bought the business in question, but nothing turns on that at this stage.
The basic factual situation was that Mr Carey had worked for a firm of Estate Agents and Valuers, Geering & Colyer, who operated in and around Kent and Sussex. He had been the manager of the fine arts department. That business was acquired at some stage which does not appear from the papers, by Blackhorse Agencies Geering & Colyer, and it was from that company or partnership that Mr Shortall bought the auction department of the Geering & Colyer Blackhorse Agencies business. That occurred on the 6 August 1991 at which point Mr Carey had gone on holiday. When he came back he found out on the 12 August that the business had been sold and there then ensued between the 13 and 15 of that month discussions between Mr Shortall, who was the new owner of the business, and Mr Carey who had been the manager of it and had been effectively in sole charge of it.
It is necessary for us to go into the details of what happened at that stage because the original decision of the Industrial Tribunal which sat on the 21 July, the 3 and 4 December 1992, was that there had been an automatically unfair dismissal as a result of the operation of the Transfer of Undertaking Regulations when Mr Carey received a letter dated the 15 August 1991, which the Industrial Tribunal decided constituted a repudiatory breach of the contract of employment which Mr Shortall had automatically inherited from the vendors of the business to him. The decision that there had been an unfair dismissal by operation of law was sent to the parties on the 15 December 1992 and although there was an application for leave to appeal out of time it was refused and there was no appeal from that decision so that initial decision stood and is not the subject of an effective appeal before us today.
What had been canvassed during the course of that decision was that Mr Shortall then submitted and holds to this day, that Mr Carey had behaved dishonestly and was subject to a liability of instant dismissal for that dishonesty. This revolved principally, if not exclusively, on the fact that Mr Carey had granted credit to three persons called Mullarkey, Gravener and Downs who had purchased goods at auctions in the proceeding months of May and June. This granting of credit, and more seriously allowing the goods in question to be removed so as to cause the auctioneers to lose their lien and thus an effective lever to ensure that they got paid, was a significant and indeed serious misconduct on Mr Carey's part.
There were differences between the evidence that Mr Carey on the one hand and Mr Shortall on the other gave to the Industrial Tribunal at the time of the first hearing on the timing of Mr Carey's telling Mr Shortall that this was indeed what he had done. Mr Shortall's evidence was to the effect that this happened on the 17 August 1991, which was a Saturday. Mr Carey's evidence was that it happened on the following Monday the 19, and there was undoubtedly a flat conflict of evidence on that and indeed on other matters in the events that surrounded the termination of Mr Carey's employment. Another important difference of evidence was the time when Mr Carey accepted the repudiatory breach that the Industrial Tribunal held the letter of the 15 August constituted. There the difference was between Monday and Tuesday of the following week, the 19 and 20 August respectively.
There was a further issue of fact which the Industrial Tribunal did resolve; namely, whether Mr Carey's undoubted failure to reveal to Mr Shortall at an early stage of the investigation by Mr Shortall all the details of the business which he had just purchased, had included dishonest failure to reveal to Mr Shortall the existence of the unauthorised permission to the purchasers to take their goods away without having paid for them. That was, as I say, something which the Industrial Tribunal did resolve. They identified the questions in paragraph 22 of their first decision and decided what they found necessary to decide, in paragraph 32. In 22 they said this:
"At the conclusion of the evidence, it was clear that there were issues of fact between the parties.
(a) One important issue was whether Mr Carey had told Mr Shortall that his salary was £13,000 plus commission of 5% on sales. Mr Shortall had insisted that the only contractual document which Mr Carey had shown him showed commission of 10% on profits which, since the Fine Art and Auction Department of Geering and Colyer had been unprofitable in the last year, would have been nil."
Pausing there for a moment, this is mainly significant at the present stage in that it is the best evidence that we have of the way in which Mr Carey saw his commission, that is to say 5%, on sales. I shall return to that subject in a moment. Going on with the identification of the conflicts of fact:
"(b) Whether it was on the Saturday or the Monday that Mr Carey admitted the granting of unauthorised credit to Messrs Mullarkey, Gravener and Downs;
(c) Whether his failure previously to tell Mr Shortall about the giving of credit to these gentlemen was a mere failure of memory, or was a dishonest concealment of the situation;
(d) When Mr Carey resigned."
They go on to say:
"Although we make findings of fact on the first two issues, we do not think it is necessary to make findings on the others."
In fact that is not right because the findings which they did make were on the first and third, namely what the commission agreement was and they held that it was a commission of 5% on sales, and secondly, whether Mr Carey's failure to tell Mr Shortall promptly about the giving of credit was dishonest and they found it was not. What they did not decide was whether it was on Saturday or Monday that Mr Carey admitted the granting of unauthorised credit and finally whether he resigned on the Monday or the Tuesday.
Having made those findings they then went on to accept the submissions that were made by Counsel on behalf of Mr Carey with regard to the automatically unfair dismissal and we do not go into the details of that because it turns on the Transfer of Undertaking Regulations and is not an issue that is open to either party before us at this stage which is an appeal from the review. What they did have said to them as they recorded it in relation to dishonesty which Mr Shortall was throughout relying on is to be found in paragraph 31(4) of their decision in the course of which they said this:
"The whole issue of dishonesty (the evidence for which, said Mr Dolovic" [Counsel for Mr Carey] "was very thin), was bye-the-bye. The alleged dishonesty had taken place during the employment with Geering and Colyer, and the most that Mr Shortall would have been entitled to do would have been to give a warning - possibly a stringent warning - that matters would have to be done very differently in the future. He would not have been entitled to infer dishonesty from the fact that Mr Carey had not immediately revealed the matter of giving unauthorised credit to Messrs Mullarkey, Gravener and Downs on 13 August."
Then there was the matter in mitigation of his having failed to remember or given effect to his obligations not to give credit to customers and let them take the goods away, and I can pick it up at the end of that paragraph where the Industrial Tribunal recalls Mr Dulovic's argument as follows:
"This, said Mr Dulovic, was not dishonesty. But even if it had been, Mr Dulovic submitted that Mr Carey would have been entitled to treat the letter of the 15 August as a constructive dismissal which was rendered automatically unfair by Regulation 8(1). Questions of dishonesty, or whether Mr Shortall might have been, or might shortly have become, entitled to dismiss Mr Carey fairly, were matters which went to compensation, and not to the question of fair or unfair dismissal."
The Industrial Tribunal then found the facts that they did find. Notably they found specifically that Mr Carey did not conceal the matter of the outstanding debts of the customers from any dishonest motive and they found the commission arrangement in the way in which Mr Carey had said it was and then they found, and this is not the subject of an appeal, that there was indeed a repudiatory breach on the part of Mr Shortall by writing the letter of the 15 August which Mr Carey had accepted within due time so that he was necessarily automatically dismissed. They went on to say in paragraph 33:
"We are unable to say, on the evidence before us, whether it is more likely than not that Mr Shortall would have been entitled on 20 August, or would have become entitled shortly thereafter, to have dismissed Mr Carey fairly. But in fact, that question, which could have gone only to the size of the compensatory award, proved in the event to be irrelevant. It is the unanimous decision of the Tribunal that Mr Carey was unfairly dismissed, having been constructively dismissed by the letter of the 15 August. There is no evidence that Mr Carey in any way contributed to his dismissal, so there is no question of contributory fault."
On that basis they went forward to look at the question of remedy. They found a basic award and there is no dispute before us as to the mathematics. They gave him a full basic award which was evaluated at £4,950, and that particular figure has not been challenged as a computation, and they said this in paragraph 35:
"In the circumstances, despite Mr Shortall's protests that he was prevented from producing evidence on the issue on which most of all he wished the Tribunal to hear evidence - namely, whether or not Mr Carey was dishonest - the Tribunal was unanimously of the view that such evidence would be irrelevant, since it would go only to the size of the compensatory award, and no compensatory award was being claimed. While the Tribunal feels some sympathy with Mr Shortall for being faced with that dilemma, they are clear that their decision not to allow such evidence to be heard is correct."
This is in our view plainly erroneous in point of law and that was not seriously disputed before us. The position so far as the law is concerned on quantum in regard to the compensatory and basic awards is as follows. So far as the compensatory award which Mr Dulovic told the Tribunal Mr Carey was not claiming, because he had done better as a self employed auctioneer after setting up in competition with Mr Shortall than he would have been entitled to if he had remained employed by Mr Shortall, is as follows. Under Sub-Section (1) of Section 74 of the Employment Protection (Consolidation Act) 1978:
"The amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
Contributory fault is dealt with in Sub-Section (6) which reads:
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
It is undoubted that Mr Shortall made various submissions about contributory fault in the course of his address. Mr Shortall of course is not a lawyer. He represented himself before the Industrial Tribunal and we have no doubt at all that he was thoroughly confused, as many another layman might have been in his shoes, between the method for calculating a compensatory award, which is contained in Sub-Sections (1) and (6) of Section 74 on one hand, and the method of calculating the basic award which is governed so far as this aspect of the matter is concerned by Sub-Section (7B) of Section 73. That Sub-Section reads:
"Where the Tribunal considers that any conduct of the complainant before the dismissal (and I omit some irrelevant words).... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extend, the tribunal shall reduce or further reduce that amount accordingly."
It is perfectly clear to anyone who reads that with a degree of attention that there is a very significant difference between that provision which is quite general and deals with any conduct of the complainant before the dismissal, and Sub-Section (6) of Section 74 which refers to dismissals being caused or contributed to by actions of the complainant. It is for that reason that we have formed the clear view that the Industrial Tribunal on the occasion of the initial hearing was quite wrong to say that evidence of Mr Carey's honesty or dishonesty was irrelevant since it would only go to the size of the compensatory award. If there had been conclusive evidence of Mr Carey's dishonesty it would have been highly relevant under Section 73(7B), and no one contended the contrary before us today.
I come now to the issues in this appeal and they revolve round the application that was made by Mr Shortall in due time for a review of the Industrial Tribunal's decision that I have so far been dealing with and that review was heard by way of a hearing on the 12 March 1993 and the Industrial Tribunal sent its decision on the 22 March 1993 to the parties. Their decision was that they would hold a review and they substituted the sum of £2,475 for their original basic award of £4,950. In other words, as they themselves have said they were reducing it by 50%. The appeal before us is an appeal by Mr Shortall on the basis that that was a perverse decision and this Tribunal has to accept a degree of responsibility for his having taken this point because it was suggested to him by myself that the decision was open to criticism in that it arguably fell short of the requirements for Industrial Tribunals to give their reasons when deciding cases under the Employment Protection (Consolidation) Act. The authority that was drawn by us to the parties' attention was the well known decision of Meek v City of Birmingham District Council [1987] IRLR 250, in the course of which Lord Justice Bingham said this at paragraph 8 on page 251:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."
What the Industrial Tribunal did do on the review was, using basically the same technique as they adopted at the main hearing, to rehearse the submissions of either side and to state what their conclusion was at the end of that. On Mr Shortall's side of course it was again a case of his appearing in person and on this occasion Mr Carey was represented by different Counsel who was not either before us today or before the Industrial Tribunal when the main hearing was originally heard. Mr Shortall's submission was recorded as having been that there was evidence of pre dismissal dishonesty and that should have been taken into account in the assessment of the basic award, and given the premise we would heartily agree with the conclusion. The question really before us is whether the premise is solidly founded.
On behalf of Mr Carey, the Counsel who then appeared for him is recorded as having argued that although Section 73(7B) gave power to take these matters into consideration, there was authority that they should not in fact consider such matters. The Industrial Tribunal distinguished that authority and held that it did not support the submission and it has not been attempted to be re-opened quite rightly before us, so we need not go into the details of that. Mr Shortall repeated what he had throughout been saying that Mr Carey had been guilty of what could properly be described as dishonesty and that was conduct calculated to undermine the relationship of trust and confidence between employer and employee.
We need no persuading that an auctioneer's job, particularly the manager of a fine art department who conducts auctions, is a responsible one which requires a high degree of trustworthiness in the person holding that position. Equally we need no persuading that dishonesty will undermine the relationship of trust and confidence which needs to exists between an employer and employee even at a far lower and less confidential relationship than that of a manager of an auctioneer's business and his employer.
Another matter in respect of which there is no factual dispute now is that Mr Carey had given unauthorised credit to customers, had allowed the customers to take the goods away and had thus exposed the person who employed him, whether it was Geering & Colyer Blackhorse Agencies or whether it was Mr Shortall, matters little, to the risk that, having lost possession of the goods and become liable to pay the vendor, they had no solid grounds beyond the personal covenant to sue the purchasers and recover the price. That is accepted on all sides was something which Mr Carey had no authority to do and which constituted a breach of his duties to permit to happen.
The Tribunal recorded that at that stage in the argument they had commented that although that conduct might very well have constituted negligence and was self evidently foolish and unwise it was not necessarily dishonest. That was not a submission that commended itself to Mr Shortall who has throughout maintained that the conduct that Mr Carey had indulged in was definitely dishonest. We pause for a moment at this stage to observe this; that if the commission was on sales the fact that credit had been given would not necessarily mean that the commission was not payable. A sale can perfectly well take place, particularly of goods which are ascertained in deliverable condition at the time when delivery takes place after an auction but before the payment is made.
There is therefore, as we see it, at any rate a possibility of arguing that a commission would be due notwithstanding that there was credit given. There might of course be counter claims in respect of any loss that was caused in respect of an unauthorised giving of credit and we are not suggesting that it was in any way proper for Mr Carey to give credit and release the goods from the auctioneers possession. But we are not persuaded that it was necessarily an open and shut decision that the giving of credit of itself and the parting of possession with the goods of itself constituted dishonesty on Mr Carey's part.
We now come to the passage in the passage in the Industrial Tribunal's decision on review which contains the critical record of what Mr Carey's Counsel said on his behalf. The Industrial Tribunal's decision reads:
"Miss Brown (that is Counsel) realistically accepted that Mr Carey had been guilty of misconduct. She pointed out that the sums involved were not large, and that the money was, after some effort on the part of Mr Shortall, eventually recovered. She conceded that this was conduct which we could take into account under Section 73(b). But we had to consider all the circumstances. She submitted that if the matters complained of did not clearly give grounds for a fair dismissal, it would not be just and equitable to reduce the basic award."
Mr Shortall before us challenged that, and sought to persuade us that that was not what Miss Brown had said and that Miss Brown had in terms accepted that Mr Carey had been guilty of dishonesty. This we are not prepared to accept for two reasons. First of all, the record shows what Miss Brown is recorded by the Industrial Tribunal as having said, and that is "guilty of misconduct" which is of course not synonymous with dishonesty. To go behind the record a wholly different procedure has to be adopted. There has to be in accordance with the practice direction of this Tribunal affidavit evidence setting out exactly what was said. This has to be put before the Chairman of the Industrial Tribunal for him or her to consider and compare with the notes that he or she has of what happened at the time, and for the reaction of the Chairman to be obtained it is also usual practice for the other side to be consulted and to see whether they accept what the complainant about the record says and whether they consider that the record is in fact accurate.
Now none of that has been gone through and in those circumstances it is not practicable for this Tribunal, which of course personally has no knowledge of the matter to go behind what the Industrial Tribunal has recorded as having been said. The second reason is that it is almost inconceivable that Counsel would have made the submission that was made by her in this case if there had been an acceptance that the employee had been guilty of dishonesty, as opposed to negligent, misconduct. What we have in particular in mind is that Miss Brown submitted that the concept of what is just and equitable has to be applied to both parties and that therefore the Industrial Tribunal, she submitted, should give effect to their previous finding that Mr Carey had been dismissed in circumstances that were automatically unfair, but that his length of service should be taken into account.
We regard it as almost self evident that no Counsel could make that submission in the same breath as accepting that his or her client had actually been guilty of dishonesty because if one comes to the conclusion that there has actually been dishonesty the chances of holding the scales even between the parties become very slim indeed. However that is only a secondary reason for our not accepting Mr Shortall's strongly held belief that there was a specific acceptance of Mr Carey's dishonesty. The main reason is that the record does not substantiate the allegation. We should perhaps also mention that Mr Shortall freely accepted that he was extremely surprised to hear what he said that Counsel had said on Mr Carey's behalf. We therefore approach the matter on the basis that the record of what Counsel for Mr Carey said stands and has to be accepted at its face value.
We now come to the heart of the appeal and that is what the Tribunal said that they thought the result should be and they said this in paragraph 9:
"The Tribunal is unanimously of the opinion that Mr Shortall has brought to our attention conduct discovered after dismissal, which had taken place before dismissal, which makes it just and equitable in this case to reduce the basic award. It appears to us to be precisely the sort of conduct which section 73(7B) was designed to catch. So we turn to the consideration of the extent of the reduction. We accept Miss Brown's submission that the concept of what is just and equitable has to be applied to both parties. We have to balance the fact that we have found that Mr Carey was unfairly dismissed, and that, at the time of his dismissal, he was a man of 20 years' service, against the extremely questionable conduct which has come to light in the course of this case, and to which Mr Shortall has very properly drawn our attention. We do not however give weight to the fact that Mr Carey had taken with him goods to auction, since he could not have done so except on the instructions of the clients. Carrying out that balancing operation, and doing the best we can, we think it just and equitable to both sides if we reduce the basic award by 50%."
The first submission that Mr Shortall made was that that was a perverse decision and that the only possible reasonable conclusion to come to on all the evidence was that Mr Carey had been dishonest in the way in which Mr Shortall had at some length sought to establish both before the Industrial Tribunal on both occasions and before us today. That is not a submission that we are able to accept. The situation was that there was conflicting evidence on both sides. If Mr Carey's was accepted there was not a case of dishonesty and in some respects the Industrial Tribunal undoubtedly accepted that he was not acting dishonestly in not mentioning the giving of credit at an earlier stage as he no doubt should have done.
So it is a case where the Industrial Tribunal for reasons that seemed good to it preferred one side's evidence to another is and although Mr Shortall has difficulty in accepting that this was a legitimate process on the part of the Industrial Tribunal, it is something which Parliament has seen fit to entrust solely to Industrial Tribunals and not to this Tribunal which is only empowered to interfere in questions of law that arise in the giving of an Industrial Tribunals' decision. We are not allowed to substitute our view of which was the better set of evidence and for that reason it is not practicable for us to go into the detailed and careful submissions that Mr Shortall gave to us regarding the credibility of some of the things that Mr Carey said in evidence and the improbability of many others.
We turn therefore to the second point that Mr Shortall raised. Namely, that there has been a failure by the Industrial Tribunal to measure up to the requirements of the law as laid down in Meek v City of Birmingham District Council to give the basic factual conclusions and a summary of the reasons which have led the Industrial Tribunal to reach the conclusion which they have reached on those basic facts and in particular there was, he submits, a failure to face up to the question was Mr Carey guilty of dishonesty or was he not.
We have given long and careful thought to this question and it seems to us that it is unfortunate that the Industrial Tribunal did not find it possible to do anything more than express itself in the rather ambiguous way in which it did. The only specific finding that there is on that critical issue of dishonesty or not dishonesty is the description of what Mr Carey did as "extremely questionable conduct". That is perfectly susceptible as a matter of English of describing conduct which was dishonest and conduct which was not dishonest and it simply does not solve the problem by itself. There is however also a great deal of authority that it is not right for this Tribunal to put a single phrase of Industrial Tribunals under the microscope and the expression is 'using a fine toothcomb' and disregard the context in which one finds those particular expressions.
On balance we have come to the conclusion that it is sufficiently clearly apparent from the whole of the frame of this review decision that the Industrial Tribunal was not satisfied that Mr Carey had been guilty of dishonesty as opposed to misconduct. We do regard it as unfortunate that the Industrial Tribunal did not find itself in a position to say in terms whether it did make that finding or not and we express the view that it is highly desirable, more especially on such a delicate and important subject as whether or not a party before it has been guilty of dishonesty, for an Industrial Tribunal to make up its mind and state its conclusion on the evidence before it. It is not satisfactory for an ambiguous expression to be used which leaves it open to possible argument that there was a finding or there was not a finding of specific dishonesty.
However on balance we have come to the conclusion that if we read the whole of the decision together and we pay regard to the fact that there was only a halving of the basic award it must necessarily we feel have been done on the basis that the Industrial Tribunal found that the case of dishonesty against Mr Carey was not proved.
That takes us to the cross appeal because on that basis the appeal has to be dismissed. The cross appeal is somewhat remarkable. The point that is taken is under Rule 10 of the Industrial Tribunals' Rules which provides for reviews. That provides as follows:
"A tribunal shall have power to review and revoke or vary by certificate under the Chairman's hand any decision on the grounds that - (then there follows 4 sub-paragraphs which are not directly relevant here)
(e) the interests of justice require such a review."
It was under that paragraph that this review was held. The leading authority on the proper interpretation of paragraph (e) of that Rule is Trimble v Supertravel Ltd [1982] I.C.R. 440 where Mr Justice Browne-Wilkinson, then president of this Tribunal, said this at page 442:
"We do not think that it is appropriate for an industrial tribunal to review their decision simply because it is said there was an error of law on its face. If the matter has been ventilated and properly argued, then errors of law of that kind fall to be corrected by this appeal tribunal. If, on the other hand, due to an oversight or to some procedural occurrence one or other party can with substance say that he has not had a fair opportunity to present his argument on a point of substance, then that is a procedural shortcoming in the proceedings before the tribunal which, in our view, can be correctly dealt with by a review under rule 10 of Schedule 1 to the Industrial Tribunals (Rules of Procedure) Regulations 1980, however important the point of law or fact may be. In essence, the review procedure enables errors occurring in the course of the proceedings to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant argument."
What happened in our view at the first hearing, and Mr Dulovic was good enough to confirm this, was that the Industrial Tribunal entirely overlooked the provisions of Section 73(7B) of the 1968 Act. Mr Dulovic was further good enough to accept before us that, with the benefit of hindsight, he should have drawn the Industrial Tribunal's attention to that provision. That we accept. It was the relevant sub-section in the light of the concession that there was no case being advanced for a compensatory award. We acquit Mr Dulovic of anything more sinister than a failure to bear in mind the relevant provisions of the Act and to draw them to the attention of the Industrial Tribunal. This is perhaps not entirely surprising because he did say, somewhat I confess to my surprise, that it was not his practice before Industrial Tribunals to refer them to the relevant statutes or authorities.
However that may be, we acquit him of any question of there having been a deliberate withholding of the relevant passage in the statute from the Industrial Tribunal but the fact remains that the Industrial Tribunal undoubtedly approached the first hearing in apparent ignorance of the relevance and effect of Section 73(7B) of the 1968 Act. What Mr Dulovic, somewhat boldly advanced, was that Mr Shortall, who has done a great deal of research, not all of it directed entirely in the right direction, had taken a wide variety of points and notably had taken points about contributory fault which were, as Mr Dulovic successfully contended, irrelevant in relation to automatically unfair dismissals and should have taken the point under Section 73(7)(G).
That may well have caused Mr Dulovic to take his eye off the ball and may possibly be the historic explanation for the Industrial Tribunal not having the benefit that it should have had of having the relevant statutory provision brought to its attention. It is in the Bar's Code of Conduct a requirement that a Barrister when conducting proceedings at Court, and we infer that must be intended to apply to Tribunals, should ensure that the Court, or we would interpose Tribunal, is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable to the contention for which he argues. Certainly it is the experience of this member of the Tribunal that that is a particularly important duty when there is a litigant in person on the other side. But Mr Dulovic sought to meet that point by pointing out that Mr Shortall had taken a wide variety of points, including the one about contributory default which was irrelevant and that he only had himself to blame if he had not taken the point under Section 73(7(B) which of course he did not take.
We have no difficulty in categorising that state of affairs of an Industrial Tribunal dealing with an issue before it without any mention or consideration of the relevant statutory provision, partly due to Counsel inadvertently having failed to draw it to their attention on the one side, and partly due to a litigant in person having confused himself with a good deal of complex law and not drawing it to their attention on the other side as falling within Rule 10(e).
We feel in line with the Industrial Tribunal that this was indeed a case where Section 73(7B) clearly was apposite and the failure of the Industrial Tribunal to have had regard to it is something which certainly does not in our view come within the scope of what Mr Justice Browne-Wilkinson described as parties having had a fair opportunity to present their arguments on a point of substance or, in the subsequent passage, a fair opportunity to present their case and the decision having been reached in the light of all relevant argument. The first decision was reached without the benefit of all relevant arguments and in those circumstances we have no doubt that the Industrial Tribunal was amply justified in reviewing its earlier erroneous decision. For those reasons the cross appeal will be dismissed.