United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M WEST (Senior Advocate) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY


 


JUDGE D M LEVY QC: At a hearing held at an Industrial Tribunal at London (South) on 15 April 1996 and 15 July 1996, the issue was whether Mr Navaratne had been unfairly dismissed by Stagville Ltd ("the Appellant") and Mr Virji and if so, what compensation there should be for unfair dismissal.

At the end of the hearing, which took two days, there was an issue on which there could not be full argument at the time, as to whether Stagville Ltd and Mr Virji should be jointly liable, on which the Tribunal made arrangements for written submissions to be submitted by the parties. The timetable allowed for that to take place and a decision was made by the Tribunal which was remitted to the parties on 6 November 1996. The decision was that Mr Navaratne was unfairly dismissed and an award was made to him jointly and severally against the Appellant and Mr Virji totalling £7,868.08.

On receipt of the decision there was an application for a review, which was made on behalf of the Appellant by Mrs Anderson, a consultant who had represented it at the hearing. The ground of the request for a review was that a material factor in the evidence appeared to have been misconsidered, namely the Tribunal said in paragraph 14 of the decision that, one day at the end of the meeting (in fact held on 14 November 1995) the Applicant had been dismissed. The Appellant said that what in fact had happened was that there had been management discussions after the meeting and the Applicant was dismissed at a later date. The application for a review was dismissed and in refusing it, the learned Chairman said this at paragraph 3:

"3. A complete transcript of the disciplinary hearing was before the Tribunal. It was the view of the Tribunal that the whole meeting was so seriously flawed, both substantively and procedurally, that in reality the decision to dismiss had been made and was understood by the Applicant to have been made pending only the confirmatory letter."

Against the decision of the Industrial Tribunal and the review an appeal has been lodged on two grounds. The first ground is that the Tribunal reached a decision in respect of the disciplinary process which was unsupported by any evidence; that is, against the finding that the employee was dismissed at the end of the meeting of 14 November 1996. Secondly, the Tribunal erred in not addressing the issue of contributory fault and failed to make a substantial reduction in the monetary award as a consequence.

Mr West, who is a senior advocate in a firm of Employment Consultants, represented the Appellant today. (Mrs Anderson, who represented the Respondents at the hearing below is a consultant in the same firm). Mr West has submitted that there is an error of fact on the first ground; having regard to the findings of fact made in the Decision, as clarified in the Notice of Review, we find that there was evidence to support the finding and there is nothing in this ground on which the Applicant can properly appeal.

As to the second ground, Mr West is right in saying that within the four corners of the Extended Reasons for the decision, it is not expressly said "no contribution by the Applicant" or words to that effect, but we have carefully read and re-read the Extended Reasons. It appears to us that the real complaint made by the Appellant against the Applicant (who was the General Manager of a hotel owned by the Appellant) was that, at a wedding function he failed to give some advice to a substitute, who was to take over from him before he went on holiday from his employment; that failure resulted in a minor loss to the employer. This was the culmination of a series of complaints raised against the Applicant at the Disciplinary Hearing.

It would have been desirable for the Tribunal to have referred to the question of contribution in the decision, but their failure to do so in the circumstances of this case, seems to us to fall into that category of cases referred to by Phillips J in Fougère v Phoenix Motor Co Ltd [1977] 1All ER 237, 238 f where he said:

" ... it needs to be known that the appeal tribunal will not interfere with awards of compensation unless the error is shown to be something which could be described as more than trifling. "

Mr West fairly referred us to the decision of this Court in Portsea Island Mutual Co-Operative Society Ltd v Rees[1980] ICR 260 where Mr Justice Kilner Brown said, as reflected in the headnote:

" ...that where the question whether the employee had contributed to his dismissal was in issue, the industrial tribunal was bound to record in a document their finding on that question and the reasons for it. "

That failed to happen here, but given the ambit of the case, it seems to us that this is a defect which should not permit the matter to go to appeal. Further, Mr West told us that it was a tactical decision not to refer to this in the Notice of Review. Cases must not be run on tactical decisions when a great deal of expenditure can follow from such decisions.

If the Applicant did contribute to his dismissal, on the facts as we understand them, this is a case of de minimis. Although thanking Mr West for his careful and helpful contribution, we think this is a case where there are no merits in the appeal and we therefore dismiss it at this stage.