United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 649_95_2310

Appeal No. EAT/649/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 October 1995

HIS HONOUR JUDGE J HULL QC

MR J H GALBRAITH CB

MR R SANDERSON OBE

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MAMMA ROMA LTD          APPELLANTS

MR C ZIPPO          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES


 


For the Appellants NO ATTENDANCE


 


JUDGE HULL QC: This is an appeal in our list under our Practice Direction for a preliminary hearing. The appeal is by a firm called Mamma Roma Ltd who employed Mr Zippo, the Respondent to the appeal, as a lorry driver. He was first employed on 20 November 1989. In May 1994 he was unwell and he had, apparently, hurt his back. A week later he was replaced, that is to say the employers took on a replacement; later his illness was authenticated by his doctor and a sick note was produced.

He went in on 6 June to see his employers and was told that he had been replaced and that his employment had ended. He complained to the Industrial Tribunal that he had been unfairly dismissed and the Respondents put in their Answer, which is at page 9 of our bundle. They said, among other things critical of the Applicant, at page 11 that:

"Mr Zippo neither turned up for work nor submitted any reason for not doing so either by telephone, letter or through a third party."

They refer to his contract of employment and what it provides about illness. They said that he had been absent on four separate occasions prior to this, although they said that was purely incidental.

"At work he was becoming increasingly argumentative and uncooperative. ... members of staff informed us that he had been telling them that he was fed up with his job and would not be staying with the company for much longer. He had been boasting to them that he would soon be having his mortgage paid without working. ..."

He had received a verbal warning about absenteeism and so on. They say that:

"On May 23, after he had not come in for one week, we wrote to Mr Zippo ... requesting clarification of the situation .... His failure to reply, along with his general behaviour beforehand made it reasonable for us to consider that he had left."

And they said that they had been reasonable in every respect. That was clearly saying that it was all Mr Zippo's fault but apparently, when the matter came before the Industrial Tribunal, one of the matters which Mr DeMarco (who is I think the Director of Mamma Roma Ltd, the employers) wanted to raise on behalf of the company, was that the Applicant had, as he put it, "frustrated his contract".

The Industrial Tribunal, in the course of their decision, found that Mr Zippo had, indeed, been unfairly dismissed. They dismissed any argument that the contract had been frustrated -they said:

"3 ... In this case the Respondent claimed variously that the Applicant's contract had been frustrated or that he had dismissed himself. ..."

They said that, in all the circumstances, Mr Zippo being a man of four and a half years seniority in the job, the employers should have enquired; they should have consulted him. They found that the employers had been unfair. They found that Mr Zippo had contributed to his dismissal to the extent of 25% by not getting in touch with them immediately and telling them the precise nature of his injury.

That was a pure decision of fact and we none of us think, on reading it, that there is any proper criticism which can be levelled at the decision on the face of it. However, in their Notice of Appeal, which was given on 9 June 1995 (and signed by Mr Demarco) the employers say as follows:

"6 I am appealing because the chairman disallowed me from continuing with my submission as soon as I put forward the case that the applicant had frustrated his contract. The chairman said that I was not legally qualified to talk about frustration of contract and that I should not continue with that angle. In the opinion of myself and of my solicitor the respondent is allowed to submit what he thinks is pertinent to the case, and if it is not so, then this will be reflected in the decision. It is incorrect to allow someone to represent their own case then, after much time and effort, to tell them that they are not legally qualified to represent the case in the way they think fit."

Looking at it from the point of view of people who were not there, we can say that it is quite wrong to talk of a person "frustrating his contract", that is simply nonsense in law. And it was not the case put forward in the Answer.

There were no facts put there which would justify an averment that this contract had been frustrated; frustration is some event, normally due to the fault of neither party, which means that the contract either cannot be performed at all, or if it can be performed is such a different thing that really, it is quite a new contract. There are many examples, for example if a man employed as a musician suddenly becomes deaf or something of that sort, it may well be said that the contract is frustrated without any fault on anybody's part.

That, clearly, was not the employer's case and the Chairman was quite within his rights to try to direct the argument and the submissions and the evidence which were addressed to the Tribunal to the proper channels. It is for the Tribunal to regulate its own procedure; it is charged with the duty of making enquiry and that includes, of course, conducting the enquiry in a reasonable way with the assistance of the parties.

If one of the parties raises something which is manifestly wrong in law and which cannot be supported in law, he is simply wasting time, albeit not wishing of course to do so. It is a source of regret that Mr DeMarco felt that he was being insulted or brushed aside. The fact is that the Chairman, on the face of it, was only doing his duty and making sure that the issues which were being put before the Tribunal were being put fairly and not obscured by a lot of irrelevance, which can be a great threat to justice.

So we find nothing in that complaint on the face of it. Today the Appellants have not thought it right to attend. We had heard that there was a great deal of delay on the Northern line. The case was listed for 10.30 this morning; it is now 2.25 pm and the Appellants have still not put in an appearance and it seems to us, in those circumstances, whether because of difficulties in transport or otherwise, they have decided not to proceed with their case.

Having considered it as carefully as we can, we are satisfied that this case raises no fairly arguable point of law and having read everything which is with our papers, we therefore have to say it cannot proceed and it must be dismissed at this stage, thereby of course saving the great cost and trouble that would be involved in an inter partes hearing. Therefore, under our Practice Direction, we direct that the appeal be dismissed.