United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 369_94_2001

Appeal No. EAT/369/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 January 1995

HIS HONOUR JUDGE D M LEVY QC

LORD GLADWIN OF CLEE CBE JP

DR D GRIEVES CBE

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MR BELA DONKO          APPELLANT

LONDON CARRIERS (INTERNATIONAL) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR A D WADE

(Friend)


 


JUDGE LEVY QC: Mr Bela Donko was a warehouseman employed by the London Carriers (International) Ltd before he was dismissed by them for incompetent work. He commenced proceedings before an Industrial Tribunal on 12 March 1993 and the Industrial Tribunal put in its Notice of Appearance on 31 March 1993 in which they said:

"Mr Donko's employment was terminated because of continued poor performance. He had received previous written and verbal warnings".

There was a hearing before the Industrial Tribunal at London South. The Decision of the Industrial Tribunal says that the hearing was heard on 14 February 1994, but internal papers lead us to think that it may have been held on 31 January, as well as 14 February 1994.

At the end of that hearing, the Tribunal held that the dismissal of the Applicant was not unfair. Mr Bela Donko wishes to appeal against that Tribunal and this is before us on a preliminary hearing.

The grounds on which he wishes to appeal are, we think, essentially two. First of all, his case was not put properly before the Industrial Tribunal below. At that Tribunal he appeared, as he has done this morning with a friend; it is a different friend here this morning. He said the friend below really did nothing to help Mr Donko. The second ground on which he wishes to appeal is that there was misconduct by the Chairman in the way the proceedings were carried out.

So far as the first ground is concerned, it seems to us, having looked closely at the evidence and having heard from Mr Bela Donko and his friend for some three quarters of an hour, that he had every opportunity to present his case to the Tribunal and if it was not presented as fully as he would have wished, then the fault is not that of the Tribunal, or of the proposed Respondents to the appeal, but Mr Bela Donko himself. Let me give one illustration of this.

We asked Mr Bela Donko to give us his best points so we could see what he was getting at and he told us that he had a tape recording of a conversation with one of the witnesses for the Respondents which, he said, showed the Respondents' witness in a bad light. We asked if that tape recording had been played before the Industrial Tribunal below. He said "No".

It simply is not open to a party to introduce fresh evidence on an appeal. If he failed to introduce admissible evidence he below provides one illustration of why he was less able to do himself justice below than he would have wished and of his difficulties in this appeal. We find the Decision, which we have read with very great care, suggests that his defence was really that he was victimised - we will take paragraph 3 of his contentions as set out in the part of the Full Reasons headed "Preliminaries".

"The Applicant contended that he had been unfairly dismissed believing that his mistakes were no greater than were those of other warehousemen and that he was victimised and did not believe that his face fitted within the organisation".

It is clear from the judgment that this was something that was carefully considered by the Tribunal and rejected, the Tribunal preferring the evidence of the Respondents' witnesses to those of Mr Bela Donko. To hear witnesses and decide where the truth probably lies is one of the functions of an Industrial Tribunal, who sees and hears them, obviously, the loser regrets that the other side's evidence has been preferred.

As to the allegation of misconduct, there is not a shred of evidence before us which can support misconduct by the Chairman or the Tribunal below. In these circumstances, we do not think it would be right for this appeal to go forward and while thanking Mr Bela Donko and his friend this morning for the full and careful way in which they have addressed us, we dismiss this appeal.