United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT


 


JUDGE J HULL QC: This is an appeal to us by Miss Maria Marta Correia Teixeira against a decision of the Industrial Tribunal sitting in Carmarthen on 2 February 1998 under the Chairmanship of Mr James with two Industrial Members. She complained to the Industrial Tribunal in her IT1 that she had been unfairly dismissed, she sought reinstatement. It was not perfectly plain that she was complaining of unfair dismissal but it appears that that is how her complaint was treated.

She had been employed by the Respondents, the well known Kwik Save Stores Ltd, at their store in Cross hands, Dyfed. Her employment began on 11 January 1993. Fairly late into the employment, which ended on 20 August 1997, she had obtained employment on a part time basis with a rival supermarket, Tesco. With the Respondents she was obliged to work such hours as were reasonably and properly fixed for her on shifts and, on occasion, those hours conflicted with her wish to work for Tesco.

In the view of the Tribunal the Respondents had acted generously in allowing her to take employment with a rival concern and were not behaving unreasonably but there came a stage where there was some conflict between them and the employers indicated to Miss Teixeira that she really must make up her mind whether she was going to work for them or for Tesco. Matters came to a head in this way; that she reported sick one day and the next day she was still unwell and unable to come in and work for the Respondents, but later that day she was seen at work at Tesco. In those circumstances an unfavourable view was taken. She was suspended and the employers eventually decided she had made a fraudulent claim for sick pay, in respect of the day when she had found that she could work for Tesco. They did not accept her story that, after phoning in that she was unwell, she had suddenly felt much better and had felt able to go into work for Tesco. That they found a specious story and so, in those circumstances, she was dismissed and then complained to the Industrial Tribunal.

I should say that whilst the proceedings were on foot, after presenting her complaint, she appealed against her dismissal and her appeal was unsuccessful. That was an internal appeal with Kwik Save Stores Ltd.

Then the employers put in their IT3 complaining of her conduct and, as I say, the Industrial Tribunal sat at Carmarthen. They considered the case: I need not go into all the details. The Tribunal found her explanation of the facts - which I have stated (her attendance at Tesco's when she had said she was too unwell to attend at Kwik Save) - they found that, as they put it, "specious", in other words, not honest and straightforward. They made various other comments. They said:

"We agree with the decision to dismiss and we consider it to be fair. The applicant owed a duty to the respondent who was her employer. She breached the duty of trust which should exist between employer and employee. It is clear...that she had no intention of going to work on 28 and 29 July." In other words, they found she was not being frank and honest and they dismissed her complaint of unfair dismissal.

She requested a review, but that was unsuccessful and now she appeals to us. Needless to say, we can only entertain an appeal from Miss Teixeira, or any other Appellant to us, on a point of law, we have no jurisdiction to go into the facts. She does put it in a way which is perfectly capable of being a point of law, she says: "the decision is one which no reasonable Tribunal could have reached under the circumstances." In other words she says, to use language which is often used in our court, "it is perverse", that is to say, "wrong in law". It is simply not a possible view of the evidence. We have, of course, thought about that as carefully as we can. It seems to us not merely that it is a decision which a reasonable Tribunal could have reached but a perfectly well justified and sensible decision. We are not required to say whether we would have reached the same conclusion as this Industrial Tribunal. There would be no point in our speculating on that. We have not heard the evidence, we have not heard Miss Teixeira.

Today Miss Teixeira has not attended and we are told that she was contacted by telephone today, she informed a member of our staff that she had forgotten that the date was today and she asked whether we could put it back to another day. It seemed to us, in view of the nature of this appeal, quite wrong to defer the matter any further or to fix another day for hearing.

It is a quite insupportable appeal. There is no ground at all that we can possibly see so we have to say that it is dismissed.