United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR F AUDA (Representative)


 


JUDGE JOHN BYRT QC: This is a preliminary hearing of an appeal against a decision of the Industrial Tribunal sitting at London (South). The decision in question was promulgated on 22 May 1997 when the Tribunal held that Mr Warner had been unfairly dismissed due to lack of warning and consultation in a redundancy situation. They also held that he was entitled to a commission under his contract of employment amounting to some £870.14.

Quite shortly the facts are that Mr Warner was employed as a result of a letter sent to him on 19 April 1993. That showed that he was employed as a shop manager, that he was on a given salary and entitled to commission at the rate of 2% for sales over and above an agreed target of £350,000 a year. Later he secured promotion and thereafter, it was apparent from what we have been told by Mr Auda, who represented the Appellants at this hearing, that the terms and conditions upon which he was paid varied but that there were no contractual documents to evidence this, that payments were made in accordance with the terms of the varied arrangements and that was the position up until the time he was dismissed.

We are concerned in this case because it would seem that the Industrial Tribunal may have become confused about where Mr Warner started his employment, whether it was at Parsons Green or the Sloane Street shop, both of which were owned by the Respondents. It would then seem that they may have failed to take into account any of the contractual variations that thereafter took place relating to the terms of his remuneration and the way that he was paid commission.

Mr Auda has told us sufficient and produced documentation in the Appellants' bundle to show that there were such variations but the Industrial Tribunal never referred to this documentation in their decision. Indeed, when computing the commission, they related back to the document which came into existence on 19 April 1993. It would seem from their findings that they took this document as the sole basis of commission throughout the period of Mr Warner's employment. We think that this may not have been the case.

It is apparent from their decision at paragraph 5(11), that they took account of the fact that at some stage there was a profit related pay scheme which came into existence. There is no indication how that scheme was accommodated within the terms of the original contract. This latter provided that Mr Warner should be paid a salary and commission only.

We know it is difficult for a Tribunal to set out all the facts relevant to its decision in a matter which may have taken hours or days to hear. But in this case we feel that there is a lack of detailed particularity in the arrangements relating to Mr Warner's pay as found by the Tribunal covering the period 1993 to 1996, that the Industrial Tribunal might well have been right in the decision they eventually came to, but without a recitation of some of the relevant details to which I have referred, it is in our view arguable that the Industrial Tribunal may not have taken into account all the relevant facts in this matter.

There is a second aspect about which Mr Auda complains. He says the Industrial Tribunal awarded compensation for unfair dismissal amounting to two weeks wages or salary, and they expressly state that that was compensation for the extra period of time it would have extended his employment, if the employers had carried through their consultative procedures correctly. There is no indication really the basis upon which that award was made, whether it was compensation or the basic award Mr Warner would have been entitled to for redundancy. Mr Auda says that Mr Warner went straight out and got another job and that the earnings he got from that other employment should have been taken into account in computing the compensation he is entitled to. Again, it is in our view arguable that because of insufficient detail in the Industrial Tribunal's decision it is not possible to know whether the Tribunal took that into account, and if not, why not.

There is a further point, which is not raised by Mr Auda. It is now thought that this Tribunal may not have jurisdiction to deal with issues arising under contracts of employment. It is unnecessary for me to go into a detailed exposition how that might be. It has been covered several times over in other Employment Appeal Tribunals' decisions of which a representative case is to be considered shortly. If, in due course, it be established the EAT has jurisdiction, we direct that this matter, on the contract issue, should go through to a full hearing of the Employment Appeal Tribunal without it being necessary for it to come back for a preliminary hearing. In the meantime, the case do stand adjourned.

So far as the compensation for unfair dismissal is concerned, we think that that should go forward to a full hearing in any event.