United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 701_94_2610

Appeal No. EAT/701/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 October 1994

HIS HONOUR JUDGE J BULL QC

MS S R CORBY

MR K M HACK JP

---

MS J E RAZOUK          APPELLANT

TILBURY DOUGLAS HOMES LTD          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant NO APPEARANCE BY OR

REPRESENTATION ON

BEHALF OF THE

APPELLANT


 


JUDGE BULL QC: This is the preliminary hearing of an Appeal by Ms J E Razouk against the decision of the Industrial Tribunal sitting at Birmingham on the 8th February of this year 1994 by which it rejected her claim that she had been constructively dismissed and that such dismissal was unfair. The Full Reasons were promulgated on 4 July 1994.

We have received a Notice by Fax from Ms Razouk saying that with great regret she cannot attend this Hearing, but would we please go forward, as we should have done in any event, to give our judgment in her absence. We are sad that she is unable to attend but we have taken additional time in order to go through the papers and ensure that we have considered everything that she has put forward, both in her Notice of Appeal and in the other documents which she has sent to us.

The Appellant had been employed by Douglas Homes Limited as a Sales Negotiator from the 20th March 1989. The firm of Douglas Homes Limited from the 1st January 1992 became Tilbury, Douglas Homes Limited.

In March of 1992, another employee alleged that the Appellant had made abusive remarks to her in the course of a telephone conversation, in consequence, the Appellant was required to attend a meeting at the offices of the Company on the 19th March 1992. That meeting she failed to attend, the reason being given, in the words of the Industrial Tribunal that, "she was suffering from migraine."

The Industrial Tribunal found at paragraph 6 that the Appellant was then written to by her employers to this effect: any further conduct of the type complained of would result in disciplinary action being taken against the Appellant and such action might include dismissal.

The Tribunal find as a fact that after that time the Appellant did not return to work at all. However, she had a dispute with her employers relating to commission and in the months following March 1992 that dispute was pursued through solicitors acting on her behalf. On the 26th October 1992 she wrote to her employers' Group chairman asking for a meeting to be arranged in order to discuss her complaints. Such meeting was arranged and it took place on 26th November 1992 at the Company's offices in Birmingham.

The Industrial Tribunal at paragraph 12 reach a finding of fact that as a consequence of that meeting and what was said during the course of it:

"We are satisfied that there was no intention by Tilbury Douglas to terminate Ms Razouk's employment at this time and that the company continued to regard her as still being in its employ."

Following that meeting, the employers wrote to the Appellant dealing with her claim to expenses but no mention was made of her continued employment.

Subsequently, on the 10th March 1993, there was a letter sent to her by her employers saying that her employment had not been terminated and asking her to advise the Company of her then current position regarding her fitness to return to work. Her reply of the 15th March 1993 was to the effect that her health had improved and she entertained the hope to return to work early in April. She was asked, by letter dated 16th March 1993 to inform the Company of the exact date when she would be available for work.

The Industrial Tribunal then considered a claim made by Ms Razouk that she wrote to her employers on the 25th March 1993, stating that she was fit to return to work, and that the dispute over her commission could wait and that her priority was to return to her employment. Her employers deny having received that letter, and of course this is a matter of fact which

the Tribunal was bound to and did investigate. This was their finding of paragraph 15:

"whether or not that letter was sent, we are satisfied on the evidence that it was not received by Tilbury Douglas. The company had no reason not to reply to that letter and not to have done so would have been inconsistent with its conduct both previously and subsequently."

They note further that the Appellant accepted in her evidence that this letter had not been sent by recorded delivery as her previous letters had been.

Proceedings were commenced by the Appellant on the 1st October 1993 by her claim that she had been constructively dismissed. In response to that, in their Notice of Appearance, her employers denied dismissal and claimed that her employment had not been terminated before the 29th September 1993.

The Industrial Tribunal first considered the effective date of termination of the Appellant's employment. Some would regard the decision which they made in paragraph 20 as being favourable towards the Appellant, for they identify facts which had they decided them in one way, her application would have been submitted out of time. They declined so to decide, and did find that her application was submitted within time.

The Appellant was represented before the Industrial Tribunal by Counsel, who put her case upon the basis that her claim was not based upon a single act of the Company going to the route of her contract, but what has now become known as the "last straw" doctrine.

The Industrial Tribunal at paragraph 22, in considerable detail, categorise and set out the incidents of which complaint is made by the Appellant. They continue at paragraph 23:

"It was conceded that there was no single act constituting a fundamental breach of the applicant's contract of employment. On the evidence we are satisfied that neither was there a series of acts which cumulatively amount to a breach of the implied duty of trust and confidence such as to entitle the applicant to regard her employment as having been terminated."

Upon that basis the Industrial Tribunal dismissed her application.

In her Notice of Appeal Ms Razouk expresses considerable dissatisfaction with the way in which the legal profession has served her. She complains that no less than three firms of Solicitors have been negligent in the conduct of her affairs and in addition that Counsel instructed at the Hearing before the Industrial Tribunal, failed to present vital aspects of her case and failed, as she puts it, to pick up upon points which she considered were of importance to her.

It is not for us to decide whether or not such complaints against the lawyers, who were instructed by her, are sound or not. We have to consider whether in fact, there is any error of law in the reasons set out by the Industrial Tribunal, for we are a Tribunal which does not have the duty to decide the facts. That is for the Industrial Tribunal, and their decision upon fact is not open to review in the Employment Appeal Tribunal.

We have, each of us, taken additional time to scrutinize all the papers to consider whether there is some matter of law or misdirection by the Tribunal which would justify allowing this matter to continue. We cannot find that this Tribunal, in any way, misdirected itself in law and there is no other matter which is raised upon this application which in our view, would entitle the Appellant to have this matter heard before a full hearing by the Employment Appeal Tribunal. It follows therefore that this Appeal falls to be dismissed and we do dismiss it.

We would add only this. The decision appeared to us to be a detailed and careful examination of not only of the facts, but also of the arguments addressed on behalf of the Appellant to the Industrial Tribunal which then carefully considered every matter which she put before them.