United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 966_93_0302

Appeal No. EAT/966/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS T MARSLAND

MR T THOMAS CBE

---

ADVANCED NETWORKING SYSTEMS LTD          APPELLANTS

MR P GRUNDY          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellants NO APPEARANCE BY OR

ON BEHALF OF

APPELLANTS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an Appeal against a decision of the Industrial Tribunal sitting at Leeds on 18 June and 8 October 1993.

For the reasons notified to the parties on 20 October, the Industrial Tribunal unanimously decided that a complaint by Mr Grundy of unlawful deductions contrary to the Wages Act 1986 was well-founded and his former employers, Advanced Networking Systems Ltd, were ordered to pay to him the sum of £1,671.94.

Advanced Networking Systems were dissatisfied with that decision and gave notice of appeal on 25 November 1993. They were notified that this matter would be set down to be heard on a preliminary hearing today, 3 February. On such a hearing it is incumbent upon the Appellant to attend if he wishes to pursue the appeal and to satisfy the Tribunal that there is an arguable point of law, which should proceed to a full hearing of the Tribunal.

The matter was listed in the President's list for today as an unassigned matter, which would be heard by one of the Tribunals sitting here not before 2 p.m. Nobody has turned up from, or to represent, Advanced Networking Systems Ltd. In those circumstances we would wish to make it clear that the Tribunal would be fully justified in simply dismissing the appeal, as no one has attended to present the appeal. This would not be an entirely satisfactory way of dealing with the matter, however, as all the Members of the Tribunal have read the relevant papers and formed a view that this Appeal is not arguable. There is no point of law raised in it.

The position in those circumstances can be stated quite briefly. The proceedings were commenced by Mr Grundy by an originating application to the Tribunal presented on 2 March 1993. He stated that from 1 December 1991 to 23 February 1993 he was employed as a sales executive by the Respondents. His complaint against them was under the Wages Act, not of unfair dismissal under the 1978 Act. He stated that he had been dismissed on 23 February without notice. At that date wages were still due to him, unpaid wages for the whole of February, totally £985.71, unpaid commission for sales up to and including the date of dismissal, approximately £900, and a further £36 for unpaid mileage travelling for a two week period up to 23 February 1993.

Mr Grundy complained that, at the time of his dismissal, the managing director stated that he would not be making those payments to him.

The Respondents put in a notice of appearance on 5 March 1993 stating that Mr Grundy had been dismissed for gross misconduct and referred to an attached letter addressed to Mr Grundy, of 24 February. The letter does not, in fact, address the complaints made by Mr Grundy under the Wages Act. It makes a number of points in relation to Mr Grundy's conduct and warnings about possible action against him in relation to his conduct and warning him as to various things that he should not do in relation to the Respondents or their customers.

The matter came on to hearing before the Tribunal. The Tribunal set out in its decision the arrangements in relation to payment of salary and commission. In paragraph 6 of its decision, it dealt with a particular submission of importance in the case. In October and November 1992 and January 1993 the Respondents had paid Mr Grundy commission calculated at 10% of gross profit on various sales. The Respondents argued that those payments were made in error. That contention was rejected. The Tribunal found that the Respondents had all the necessary documentation to calculate the amount of sales achieved by Mr Grundy and would not have paid him if they believed there was a limitation on the commission payments contained in the offer letter was to be applied. The Tribunal found, contrary to submissions made by the Respondents, that the written agreement between the parties relevant to commission had been orally varied.

The Tribunal explained how they calculated the computation of the amount which was due to Mr Grundy.

The Respondents were dissatisfied with the decision which seems to have contained decisions purely on matters of fact. They sought a review. On 11 November 1993 the Chairman refused the application for a review on the grounds that there were no reasonable prospects of success. The Chairman dealt in his reasons with the various points on which he stated his view that the matter was not appropriate for review.

There is no need to go into the details of that, since this appeal is not against the decision refusing the review. It is a decision against the decision of the Tribunal at the hearings on 18 June and 8 October. That appears clearly from the letter of appeal dated 25 November.

The grounds of appeal set out are all, in our view, on matters of fact. The first ground of appeal is that the Tribunal, exceeded its jurisdiction, because, save for two points of difference, the matters of dispute between the parties had been settled at the hearing. The second ground was that false evidence had been given by Mr Grundy which was material to the outcome of the hearing. The third ground was that, contrary to the finding of the Tribunal, there had been no variation, oral or otherwise, of the contractual arrangements. If there had been, the variation would not be valid, as it was unsupported by consideration and was not evidenced in writing and, was therefore, contrary to the Parol evidence rule. They also to say that, even if it had been varied the commission would have been lower than the sum calculated by the Tribunal. They revert finally to the contention that commissions had actually been paid to Mr Grundy in error and he was informed of the error. The commissions had not been returned that it appears from the decision, was one of the principal grounds on which the matter had been fought before the Tribunal.

In our judgment all of these points are complaints on factual matters, which we are not able to deal with. There is no point of law disclosed by any of these matters, whether the disputes between the parties were compromised or not: whether the evidence given by Mr Grundy was true or not; whether the contract was varied or not; whether payments were made in error or not, they are all questions of fact. The only glimmer of a question of law is the invocation of the Parol evidence rule. The point is taken that the variation should not have legal effect because it was oral and not in writing. The variation was of a written contract. That submission is a misunderstanding of the parol evidence rule. That applies to contracts which are by law required to be in writing. The Contracts in this case are not required by law to be in writing.

For those reasons this appeal is dismissed.