United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D READE (of Counsel) The Simkins Partnership Solicitors 45-51 Whitfield Street London W1P 6AA


 


JUDGE D M LEVY QC: We have an application to appeal in Reiner Moritz Associates Ltd against Mr R. Carter which arises in the following way.

Mr Carter was a director of Reiner Moritz Associates Ltd ("the Company"). A Mr Mundy worked for the Company, albeit on a self-employed basis.

An enquiry was raised of Mr Carter about expert services being provided by the Company. Mr Carter arranged for those expert services to be provided by Mr Mundy. Mr Mundy, to Mr Carter's surprise, sent an invoice for the expert services he had provided to those who had requested them. It became moot as to how the Company was to be remunerated for the services Mr Mundy provided as Mr Carter had thought the fees were due to the Company. The matter was raised at a board meeting on 20 July 1994 but unhappily Mr Carter was not present at that occasion. At the meeting Dr Moritz agreed to deal with the matter. Many months later, on 23 February 1995, the matter was again raised at a board meeting. Dr Moritz said nothing had been done about it. There was a unanimous decision of the board that Dr Moritz and a Mr Schandelmaier should resolve the issue.

The issue was apparently resolved in a manner about the legality of which Mr Carter had doubts. The way he chose to exercise those doubts was a little unusual. He raised it in this way. After consultation with the Company's finance director he raised a personal invoice for commission in negotiating with the solicitors who had requested the expert evidence. He then had the matter of his invoice raised at a board meeting.

At that board meeting there was something of a cuffufle. As a result of all this, Mr Carter resigned his directorship but then he claimed that he had been constructively dismissed. He made a complaint to an Industrial Tribunal. That Industrial Tribunal met to consider the complaint on 17 and 19 June 1996.

At the hearing both sides were represented by Counsel. At the end of the hearing the first finding of the Industrial Tribunal was that Mr Carter had been unfairly dismissed. The decision was sent to the parties on 15 July 1996. From that decision the Company wishes to appeal and the Notice of Appeal says this:

"6.5 The Tribunal failed to take into account or to put any or any sufficient weight upon the following admitted facts:

6.5.1 That the decision that two directors would negotiate a settlement of the disputed invoice with Mr Mundy was a decision of the board of directors taken at a board meeting on 23rd February 1995."

That was undoubtedly correct.

"6.5.2 The board's decision was unanimous;

6.5.3 The Applicant had been present at the meeting and voted in favour of this course of action;

6.5.4 Therefore the course of action which the Respondent followed and to which the Applicant sought to object at the board meeting of 26th May 1995 was one directed by the Respondent himself as part of the unanimous earlier decision."

The word "therefore" introduces, in our judgment, a non sequitur. At the board meeting there was a unanimous resolution, to which Mr Carter was a party, that the matter of settling the dispute was as per 6.5.1 of the Notice of Appeal. It was implicit in the resolution which the board passed that the matter should be properly resolved by the two directors, i.e. in accordance with the law. Mr Carter felt that the matter had not been properly resolved. The fact that he had been party to a decision of the sub-committee of the directors to settle the issue does not mean that he was not entitled to object at a later stage that there had been no proper compliance with the solution. In our judgment, paragraph 6.5.4 of the Notice of Appeal is fallacious.

Mr Reade, who has made skilful submissions to us in a preliminary hearing which has taken the better part of an hour, has drawn our attention to the Company's Articles of Association and the appropriate Articles of table A which had been excluded, and the appropriate Articles of table A on which he relied, but they do not answer the central point.

His complaint is that the way in which we have attempted to articulate the matter in this judgment has not been thus articulated in the decision of the Industrial Tribunal in their Extended Reasons. But it is clear from reading the Extended Reasons that the Industrial Tribunal reached the same conclusion as we have. It is very difficult for a working body such as an Industrial Tribunal always to cross the t's and dot the i's; it is sufficient if the reasons for their decision are clear.

Perhaps the Tribunal was not as detailed as Mr Reade would have desired in setting out the reasons for the decision but, in our judgment, the reason is clear. The appeal against it on this ground has no hope of success and therefore we propose to dismiss it at this stage.