United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR GOLDSWORTHY
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE PUGSLEY: This is a case that becomes before us in which Mr and Mrs Goldsworthy represent themselves. The respondent is not here but we have had the opportunity, as have Mr and Mrs Goldsworthy, of seeing written submissions made on his behalf.

We deal first with the history of the matter. The applicant in the tribunal, the respondent in this appeal, was employed as a chef. The appellants run a public house. Unhappy differences arose between the two parties, and that resulted in an application being made to the tribunal in Bristol. The Originating Application to an Industrial Tribunal concluded with these words:

"I feel Mr Goldsworthy is trying to take advantage of the situation as he knows I have to be out of the country. However because of what has happened I shall be returning in July on a visitors visa in order that this matter can be settled. This means I will have to cut my plans short and be unable to do all the travelling I had planned because of the lack of funds."

Mr Goldsworthy wrote on 12th July 1996 and asked the tribunal not set a date before the end of September, the reasons for the request are that:

"My wife and I run The Piccadilly Inn with limited casual staff, and as we now entering the Summer holidays and the busiest time of the year, it is essential that we both work every day throughout this period. This necessitates us both working 7 days per week with no time off.

It will also be essential for both my wife and I to attend the hearing to clarify our case."

That letter crossed in the post with a letter from the tribunal dated 12th July 1996, setting the date for the hearing as 30th July.

Immediately, Mr Goldsworthy wrote in effect repeats what he had previously said, and referred to his previous letter. That was put to the Regional Chairman who refused to adjourn this saying:

"In view of the conflicting requirements of the parties as set out in the applicant's representative's letter dated 5 June 1996 and the respondents' letter dated 13 July 1996 it is my view that despite the points made by the respondents in their letter that the overall interests of justice require that this case be heard on the present hearing date. [This of course was referring no doubt to the fact that Mr Wills would soon be out of the country.] The respondents must therefore make arrangements to cover this situation as they would any other situation which required their attendance elsewhere."

Undaunted by that decision, Mr Goldsworthy writes again on 19th July. He reiterates the point that perhaps they had not made sufficiently clear their difficulties, it was not economic to employ assistant managers. That letter again went to the Regional Chairman, Mr Woods, who in a second decision refuses the application to adjourn stating:

"The applicant's representative informs me that the applicant is a New Zealander who has no plans to return to the United Kingdom. Therefore despite the respondents administration problems the case will remain in the list for the present hearing date. To do otherwise would have the effect of depriving the applicant of an opportunity to put his case and would be contrary to the interests of justice."

Mr Goldsworthy writes another letter in which he explains the position that they trying to find a capable licensee, but unfortunately due to lack of time they are fully committed to their own business, and he says "we attach a summary statement which we would wish to submit as evidence in our case." It is right to say that Mr Goldsworthy put the most comprehensive bundle of documents before the tribunal.

In due course, the matter came before Mr Sara, the Chairman, and he made various adjudications. On the evidence before him he came to the view that the applicant was entitled to a claim under the Wages Act of the sum of £460. It is interesting that the learned Chairman refused to allow the applicant to abandon his claim for breach of contract in order to prevent the respondents pursuing their counter-claim. The Chairman decided that the applicant was not entitled to do that.

The Chairman then went on to summarise the position and found the sum of £460 to be due as two weeks wages. He made the finding that the applicant was not hourly paid but was paid weekly, and because of the fluctuations of business his hours were bound to vary. He then construed the term concerning holiday:

"The company's holiday year is from 1st July to 30th June. Holiday entitlement must be taken during the appropriate holiday year. Public holidays are in addition to annual holidays. For working a public holiday, you will be entitled to time off in lieu. All holiday arrangements must be agreed by management. ... On termination of employment holiday entitlement will be proportionate to the current holiday year worked, less any holiday taken."

Mr Goldsworthy says that that term should be construed as to say that a person does not get any holiday entitlement for the first four months of service. The learned Chairman construed the term as follows:

"My interpretation of that is that the applicant is entitled to be paid in lieu of holiday due on the termination of employment and that after four months his entitlement relates back to the commencement of his employment as the beginning of July."

And on that basis, he proceeded to work out that the applicant holiday entitlement. The matter is set out in paragraphs 5 and 6 of the decision and the Chairman reached the decision that the sum of £448.50 was due.

Before us, Mr Goldsworthy says that the calculation of Bank Holidays should be by reference to the actual hours worked not time off in lieu, however little time was attended on a Bank Holiday. We have listened to the contentions of Mr Goldsworthy, and we are fortunate in having on the tribunal lay members who have years of experience of these sort of problems. We do not consider that there is any error of law in the way the Chairman construed the holiday entitlement related back to the start of employment. The applicant's reply to the counter-claim claimed there had been discussion concerning this term.

We do not find that there is any error of law in the calculation of the amount of holiday pay due. This was pre-eminently a matter for the chairman who had the copious information before him and reached his view having heard the evidence. It may be, that a different view may have been taken if the Chairman had had the benefit of hearing on oath the evidence of Mr and Mrs Goldsworthy. It is right to say that the end of the decision the Chairman did not find it possible to say on the balance of probabilities that the counter-claim made by the respondents was made out.

"The fact that drains had been blocked by fat in a restaurant does not mean that it is the fault of the chef. It could have accumulated over a period."

We have some sympathy with Mr and Mrs Goldsworthy. Here the tribunal was faced with the position that the applicant was only in the country for short time. The Regional Chairman properly considered the issues: in the exercise of his discretion he refused the application for adjournment. It is of course a fundamental right that people who are going to have a decision adverse have the opportunity of attending. At the end of the day, Mr and Mrs Goldsworthy, although it would have been difficult, did have that opportunity. They made two applications for an adjournment. There was no appeal against the refusal to this tribunal. We are not saying such an appeal would have been successful.

In our view there is no error of law on the matters as put before the Chairman. In due course, quite understandably, Mr Goldsworthy made application for a review. It is right that we should treat his ground of appeal as an appeal from the refusal of a review. It was refused by the Chairman who came to the view, as he said in his decision:

"4 It is a ground for review that the decision was made in the absence of a party. However, there is no absolute right to a review if a party is not present. It was the respondents' choice not to attend the hearing and they submitted full written representations which were considered at the hearing. The respondents had applied for a postponement, which had been refused. There were no specific difficulties relating to the attendance of the respondents on that day. They submitted only general difficulties about attending at any time in July, August or early September. It was not possible to accommodate them, because the applicant was returning to New Zealand. I do not, therefore, consider that their absence from the hearing could, in itself, be a possible ground for review.

5 The Tribunal can review a decision if the interests of justice so require. Having read the respondents' application for a review. I see no basis for thinking that the interests of justice require a review. The matters rehearsed in their letter are the same as those put before me at the hearing and rejected."

The Chairman who conducted the initial hearing clearly took the view that on the matters that were put before him by Mr Goldsworthy that there was nothing that gave him cause to feel that the interests of justice required a further review of the matter.

We have sympathy for any party who has difficulty in attending a hearing. This tribunal only has power to interfere on an error of law. We have no alternative but to dismiss the appeal against the decision and against the refusal to review the decision.