United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at Reading on 29 April 1998. The Tribunal dismissed the Appellant's complaint that he had been unfairly dismissed. They found that he had not been dismissed at all but had resigned in circumstances which did not amount to a constructive dismissal.

The Appellant was employed by the Respondent from 3 February 1997 until 26 February 1997 as a Collection and Delivery Driver based at their premises at Witney in Oxfordshire. He had therefore not completed the two years employment necessary to found a claim under Sections 94 - 98 of the Employment Rights Act 1996. He brought his claim under Section 100 of the Employment Rights Act 1996, claiming that he had been dismissed for a reason connected with a Health and Safety matter, for which no qualifying period of employment was necessary.

The evidence before the Tribunal was that on 26 September 1997 Mr Norris, the Appellant's Manager, had called him in to speak to him about a complaint received from a customer called Teka Ltd. The complaint was that the Appellant had used bad language at Teka's premises at the time of delivering some goods to them. The Appellant agreed that his language had been, as he put it, "Anglo-Saxon", but he, in turn, complained to Mr Norris that he often found that the particular type of product which he had been delivering to Teka was inadequately packed. The result was that the products, which were ovens with glass doors, were broken and the Appellant was put at risk of injury from broken glass.

The Appellant's evidence was that Mr Norris showed no interest in his complaint and made it plain that the Appellant's job was no longer available to him. The Appellant declined to work further, because he considered that his health and safety were at risk.

Mr Norris' evidence about this interview was that having received the complaint, it was his intention only to give the Appellant an informal warning about the language he used to customers. However, he said that the Appellant was abusive to him when he was told about Teka's complaint. He, the Appellant, then complained about the glass having been broken in the item delivered. Mr Norris said that this was the first time he was aware of this problem and he agreed that this was not acceptable and he would look into it. He said that there was then a discussion about how the Appellant's work was to be reorganised, as there were now two customers who would not allow him on their premises, one of them being Teka. He, Mr Norris, claimed to the Tribunal that the Appellant then said that he intended to resign. He had been working very hard and he needed a holiday. Mr Norris said that the Appellant repeated his statement that he intended to resign, three times, in the course of the remaining conversation. He then left and he did not present himself for work on the following Monday.

Mr Norris investigated the problem of the broken glass. He found that the glass was safety glass which, when broken, formed small chunky pieces and did not break into shards. The Tribunal themselves examined some pieces of broken glass and confirmed, in their own minds, that that was so.

The Tribunal said that where there was a dispute between the two accounts of the interview, they preferred the evidence of Mr Norris. They found that the Appellant had resigned voluntarily. The employer had not committed a repudiatory breach of the contract. Indeed, there was no breach of contract at all. They dismissed the claim.

In the written grounds of appeal before this Tribunal, the Appellant sought to argue that the decision was perverse. However, he has not pursued that argument before us.

Today the Appellant has sought to put before us two new arguments, which he says arise out of fresh evidence which was not available to him to present to the Tribunal. He objects very strongly to the fact that the Tribunal rejected his evidence as unreliable and accepted Mr Norris' in preference. One of the issues raised before the Tribunal was the question of whether the complaint from Teka was a genuine complaint or whether, as the Appellant suggested, it had been engineered by Mr Norris because he wanted to get rid of the Appellant. The Tribunal rejected that suggestion. The Appellant now submits that with the benefit of fresh evidence, he could challenge that finding of the Tribunal. He has shown to us a document which purports to be a facsimile letter of complaint from Teka. This was before the Tribunal and its authenticity as a document was not challenged. This morning the Appellant has explained to us that a short time ago, he became aware that it is possible to copy letters by using the copy mode on a fax machine. He says that he has realised that the letter which purports to come from Teka has, in fact, been created by the Respondent, possibly by Mr Norris, but at any rate by the Respondent, on their fax machine, using it in copy mode. He says that he is confident of that, because when one compares the layout and text of the Teka document with a document which has admittedly been produced by the Respondent's fax machine, it can be seen that they have both been produced on the same machine. He claims that he can see that there is a common characteristic on these two documents, which must have come from this machine. We cannot see it. He says he can because he used to work in the printing industry. He says that he has realised that a serious crime has been uncovered. He invites us to allow this appeal to proceed on the basis that there is new evidence which should be put before the Tribunal.

We reject this argument. There is no new evidence which was not available to the Tribunal below. There is only the Appellant's opinion about a document which was before the Tribunal.

Second, he has shown us this morning an affidavit of Miss Allison Jane Wood in a County Court case, in which the Appellant as plaintiff sues Teka Products Limited. We do not know in connection with what. However, at paragraph 6, the deponent says that she has been advised by Mr Norris, the Manager with Interlink Express, that upon receipt of Mr Riley's letter (that is the letter of complaint from Teka) which she was told was forwarded to him (Mr Norris) by Interlink Express's Area Manager, he requested an opportunity to discuss the defendant's (Teka's) complaint with the plaintiff. This plainly refers to the letter of complaint with which the Tribunal was concerned.

The Appellant submits that this shows that dishonest evidence was given to the Tribunal. This letter from Teka was addressed to Ms Lloyd, who is not the Area Manager of Interlink Express. She is, in the Appellant's view, a Sales Executive in Bristol. This he says, is fresh evidence which should be put before the Employment Appeal Tribunal, when they consider his appeal in detail. He submits that a serious and devious crime has been committed, but that it has taken some time for him to realise that that was so.

This affidavit gives rise to no fresh evidence whatsoever. There is no material in the affidavit which causes us to think that the Tribunal may have been misled in any way. We regret to say that the two grounds upon which Mr Gilbert sought to rely today have no greater merit than the written grounds previously submitted. For those reasons, this appeal cannot proceed and must be dismissed at this preliminary stage.