United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W M REES (of Counsel) Messrs Samuel Phillips & Co Solicitors 86 Pilgrim Street Newcastle Upon Tyne NE1 6SR


 


JUDGE D M LEVY QC: Mr James McHardy Wilson was a Team Leader in the employ of Peter Vassallo Limited at its premises in Newcastle. The employers found that a great deal of fish had been removed unlawfully from their premises and carried out an investigation.

Among those who were thought to have been involved in what was considered the theft of fish was Mr Wilson and his immediate superior. There was what is accepted to have been a fair investigation. Mr Wilson was one of those who was dismissed as a result of that investigation. He made a complaint of unfair dismissal and breach of contract to an Industrial Tribunal which was dated 24 June 1996.

An Originating Application was entered and in due course there was a hearing before an Industrial Tribunal at Newcastle, involving both Mr Wilson and his immediate superior. The main decision of the Tribunal, which was sent to the parties on 15 November 1996 was that neither Mr Wilson nor his colleague were unfairly dismissed.

Against that decision Mr Wilson wishes to appeal and we have had the benefit of hearing submissions on his behalf from Mr Rees this morning. There are essentially three grounds put in the Notice of Appeal and on which Mr Rees has addressed us.

The first are that within the decision itself there is inconsistency. In one paragraph, paragraph 12, the Tribunal say:

"We came to the conclusion that it was clearly reasonable for Mr Teasdale [who investigated the theft] to believe, as he did believe, that if large amounts were being stolen in this way the applicants would have known of that. ..."

In paragraph 13, after commencing:

"The real issue, and one with which we had some difficulty, was whether it was reasonable for Mr Teasdale to believe that large amounts had been stolen in this sort of way. ..."

After going into what had happened in some detail the Tribunal continued:

"Faced with that situation, we decided, after giving a great deal of thought to the matter, that Mr Teasdale was entitled from the point of view of reasonability to come to the conclusion that the incident on 22 May was not a one-off incident, and, when he considered together the comments made by the caller, the stock losses and the incident itself, that this had been going on for some time. Once he came to that position, it was, for reasons we have already given, a reasonable further conclusion that if that was happening the applicants should have known about it. ..."

Mr Rees draws attention to the difference between "the applicants would have known of that" in paragraph 12 and "the applicants should have known about it" in paragraph 13. For our part, with great respect to Mr Rees, we do not find there is any significance in the changes. What the Tribunal is doing in paragraph 12 is setting out the reasonableness of the conclusion of Mr Teasdale and they are filling it out in paragraph 13. In our judgment, there is nothing in this point.

It is then said that if Mr Wilson should have known it, this amounts to capability and not conduct, but what the Tribunal is clearing saying, although they do not use these words, is that the team leader was "turning a blind eye" to what was going on and in that sense was an accessory to the thefts which were going on. On the facts as found this seems to us to be a matter of conduct, not capability.

The final point which Mr Rees makes in his submissions is that this is a perverse decision because he says, there was no evidence pointing the finger at Mr Wilson. However, of course there was no evidence such as Mr Wilson's fingerprint or the like on the fish which was being stolen, but the mis en scène of the factory was that large amounts of fish "walked" at a time when Mr Wilson was a person in charge of the fish which "walked". The inferences, which the investigator was entitled to draw, on the evidence which was before the Tribunal, was that Mr Wilson was party to the theft of the fish. It is not right to say there was no evidence; there was no direct evidence, but there was circumstantial evidence.

In these circumstances we think that this is an attempt to go against the facts as found by the Tribunal: that there was a reasonable investigation and that there was evidence of the theft. In these circumstances, in our judgment, there is no matter of law raised on the appeal which can succeed on a full appeal and there are sufficient findings of fact to justify the conclusion which the Tribunal reached.

In these circumstances, we thank Mr Rees for his careful and helpful submissions, but we dismiss the appeal at this stage.