United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1172_94_0505

Appeal No. EAT/1172/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 May 1995

Before

HIS HONOUR JUDGE J HULL QC

MR T S BATHO

MRS E HART

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ACCENT SIGNS          APPELLANTS

MR P JEFFS          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR K J MCNERNEY

(Representative)

Peninsula Business Services

Stamford House

361-365 Chapel Street

Manchester M3 5JY


 


JUDGE HULL QC This is a case in which Mr Jeffs, the Respondent to this appeal, complained to the Industrial Tribunal on 2 July 1994 that he had been unfairly dismissed.

He is a general machinist/sign maker and he was first employed by Accent Signs, who are the Appellants here, on 7 April 1992. It is their case that he was dismissed by letter of 29 March 1994 which gave him, so they say, one week's notice.

On the other hand, Mr Jeffs said that he had received not that letter, but another letter on 5 April 1994 saying that he was dismissed as of that day. Of course, he was entitled to take advantage of the provisions of Section 55 of the Employment Protection (Consolidation) Act, if that was the letter dismissing him; and because he was not being summarily dismissed for misconduct or anything of that sort, for the purposes of the Act, that notice expired a week later. He was entitled to a week's notice and therefore he would, by the time the notice expired, have served two years and be entitled to the protection of the Act.

As I say, the employers relied upon the letter which was allegedly written on 29 March and Mr Jeffs gave evidence and so did Mr Thomson, who said that he had sent this letter. He produced a certificate of posting which purports to record the posting of something on 29 March to Mr Jeffs at his address apparently. It is not plainly legible, but we accept what Mr McNerney tells us; that it records that something was sent to Mr Jeffs on 29 March. Mr Jeffs said he did not receive it. He did not apparently say that he received anything from his employers. Of course, it could have been anything. The employers, if they were to rely on that notice would have to show that the notice was not merely posted, but received.

The Chairman dealt with it in this way. He heard Mr Thomson and he heard Mr Jeffs. They both gave evidence to him. And he said that:

"3 ....

That letter is signed by Mr N J Thomson, one of the partners in the business who has given evidence to me. Attached to the letter is a certificate of posting, recording that a single postal item was posted at a post office in Warley on 29 March. However there is nothing specifically to connect the certificate of posting to the copy letter.

4 Mr Jeffs tells me that he did not receive that letter. The letter he received was dated 5 April. It is also signed by Mr Thomson. It reads,

`Dear Paul,

It has been virtually three weeks since you last came to work and as yet no Doctors note to explain your absence has been received. The situation has become intolerable.

We therefore must find someone to replace you immediately. I mentioned to you over a week ago that something must be sorted out, so I have no further option but to terminate your employment as of todays date'".

It was an extraordinary letter to write, if the letter of 29 March had indeed been written. The natural way to put it was to say: "As you know your employment has been terminated, as I wrote to you on 29 March". On the contrary, this letter is treating it as though it is a matter which has just arisen and "It is now necessary at this stage to terminate your employment as of today's date". That is only a comment.

It was a matter, of course, which the Chairman had to consider on the evidence which he heard. Did he accept the evidence of Mr Thomson? Did he accept the evidence of Mr Jeffs? He directed himself that the burden was on Mr Jeffs with regard to this matter and he said:

"5 .... On the balance of probabilities [which of course is the correct standard of proof] I am not satisfied that the letter of 29 March was either written contemporaneously or sent to Mr Jeffs. If it had been and if the letter of 5 April had merely been confirmation of the notice given in the earlier letter, one would have expected the second letter to refer to it. The second letter, on the contrary, reads as though it and not a previous document is to be taken as the notice terminating Mr Jeffs' employment.

6 I am therefore satisfied on the balance of probabilities that the first indication that Mr Jeffs had from his former employers that his employment was to be terminated was the letter dated 5 April 1994".

That, on the face of it, was a pure question of fact. And what Mr McNerney says today in his Notice of Appeal is that it is a perverse decision. He says in his Notice of Appeal that:

".... it is perverse for the Chairman to say that something was sent to the applicant but not necessarily the letter of 29th March 1994, dismissing him. ....".

And "The Chairman's decision in finding that a certificate of posting did not relate to a letter of dismissal was perverse". The Chairman said neither of those things. That is a logical extrapolation which Mr McNerney seeks to make upon the decision.

The decision was that the Chairman was not satisfied that the letter of the 29th was written or sent on that day to Mr Jeffs and he might have added, "not satisfied that Mr Jeffs received it", because he evidently accepted Mr Jeffs' evidence.

The fact is that he correctly directed himself with regard to the burden of proof. Mr McNerney, who was present at the hearing, cross-examined Mr Jeffs apparently, and asked him about this. Mr Jeffs said, according to Mr McNerney, that he had not received the letter of 29 March. We are not told by Mr McNerney if there was any cross-examination along the following lines: "Did you receive anything on 30 March; it may be in an envelope from your employer - or anything of that sort?". That is, apparently, the logical basis on which Mr McNerney now rests his case, that in the absence of Mr Jeffs saying, "Well, I did receive something, but it was a blank sheet of paper or a catalogue or a letter saying what the dates for holidays were this year, or something of that sort", it was perverse for the Chairman to make the finding which he did. We do not accept that.

The mere fact that a document is posted does not mean that it is delivered, but quite apart from that the Chairman, having directed himself, was not satisfied that that was a contemporaneous document duly posted on that date. We are not able to say that that was a perverse finding.

There was plenty of evidence, in our view, and in particular this extraordinary letter of 5 April, to show that there was a matter to be enquired into here and the Chairman was fully entitled to enquire into it and in our view, to reach the decision which he did.

It can be said to be a strong decision, that no doubt is so, but that was something which he reached after hearing the witnesses and we are in no position to say that it was a perverse decision.