United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr F Edwards JR. (non practising barrister)


 


JUDGE CLARK: The Appellant Mario Tsontzos, was employed by the Respondent from 7 March until his summary dismissal on 31 July 1996. He was then employed as Head Concierge at the London Kensington Hilton Hotel.

1. The grounds on which he was dismissed related to his conduct. Being in a position of trust he had behaved dishonestly in pocketing money which did not belong to him. The specific allegations against him were;

That he added a 'handling charge of £10 to a charge raised by Fed Ex, a courier company, in respect of a parcel sent abroad on behalf of a guest, Ms Shiktuya. He claimed that the sum of £10 had been added by way of a tip. That guest was contacted and denied tipping him and:

In respect of a particular transaction with DHL, charged by that carrier at £76.60, the Appellant had:

a) added a £10 handling charge, and

b) arranged for the DHL charge to be paid twice by the Respondent, once through the normal channels and that he had pocketed the cash.

2. An investigation into those allegations had been carried out by Ms Patricia Mahon, the Front Office Manager. As a result of those investigations she rejected the Appellant's account, first that it was the Respondent's practice to levy a handling charge, second, that Ms Shikuya had tipped him £10 and third that DHL had been paid only once in respect of the invoice for £86.60.
3. His complaint of unfair dismissal and wrongful dismissal was originally dismissed by an Employment Tribunal before he had given evidence. That decision was set aside by a division of the Appeal Tribunal (Morrison J presiding) on 2 December 1997 (EAT 348/97). The matter was remitted for hearing by a fresh Employment Tribunal. That rehearing took place before a Tribunal sitting at London (North) under the Chairmanship of Mr G Flint on 24-26 February 1999. By a decision with extended reasons promulgated on 25 March 1999 that Employment Tribunal found:

(1) That Ms Mahon had carried out a reasonable, indeed thorough investigation, entitling her to conclude that the Respondent had no policy of adding handling charges; that Ms Shikuya had not added a £10 tip to her bill for sending a package abroad and that the Appellant had pocketed £86.60 in cash. Ms Mahon was entitled to summarily dismiss him.

(2) That there had been 2 subsequent internal appeals by the Appellant, both of which were dismissed. There were no flaws in the Respondent's disciplinary procedure.

(3) That there was no conspiracy, as alleged by the Appellant, by persons including Ms Mahon to get rid of him.

(4) That in the circumstances the dismissal the dismissal was fair.

(5) That there was sufficient evidence gathered by the Respondent to satisfy the Employment Tribunal on the balance of probabilities that the Appellant was guilty of the 2 disciplinary charges against him. Those amounted to gross misconduct. That entitled the Respondent to summarily dismiss the Appellant at Common Law.

In these circumstances both complaints were dismissed.

4. Against that decision the Appellant brought this further appeal (EAT 635/99). A preliminary hearing which came before a division on which I sat on 28 September 1999 was adjourned for the reasons given in the judgment which I delivered on that day. This is the restored preliminary hearing, held to determine whether or not the appeal raises any arguable point of law. Mr Edward has applied for permission to amend the Notice of Appeal to advance some 8 separate grounds. We have granted that permission.
5. Before dealing with the individual grounds of appeal, now raised, we should make this general observation. The Law strictly circumscribes the jurisdiction of the Employment Appeal Tribunal. Our function is to correct errors of law by Employment Tribunals, not to retry questions of fact. As a general observation, some of the grounds advanced by Mr Edward, as we shall shortly indicate, are in effect an attempt to reopen actual questions.
6. The grounds for appeal may be dealt with in this way:-

(1) It is submitted that the Tribunal failed to make a finding of fact as to whether or not it was the established practice of the Respondent for a handling charge to be added to DHL Services, as opposed to other courier services. It is said that the Employment Tribunal did not make a necessary finding. It seems to us that, in the course of their reasons, the Employment Tribunal firmly accepted Ms Mahon's evidence, based on her thorough investigation, that there was no such practice operated throughout the Respondent. There was, however, some evidence that it was a practice particularly developed by the Appellant; for example, a Carl Levin who had acted as the Appellant's Assistant Concierge referred to adding £10 handling changes on all DHL packages whilst working with the Appellant but not adding the charge when he was not working with the Appellant because he didn't think it was the correct thing to do. It seems to us that the Tribunal have answered the questions posed in this case, first in finding that Ms Mahon was entitled to conclude that there was no such practice and secondly, for the purposes of the wrongful dismissal claim, finding on the evidence before them, that it was not the practice.

(2) Mr Edward takes the point on an argument which he tells us he put before the Employment Tribunal to the effect that on certain material documents signatures there appearing were not those of the Appellant. This is precisely the sort of factual question which parliament has left to Employment Tribunals to resolve. The fact that a particular point has not been specifically mentioned in the Employment Tribunals reasons does not mean that it has been ignored or overlooked. It forms part and parcel of the evidential matrix in which the Tribunal reached their decision.

(3) Although after some intense argument, as Mr Edward puts it, the Chairman of the Tribunal reluctantly agreed that the Appellant could adduce evidence in the form of a transcript of the secretly taped recording of a conversation between Mr Edward himself and one of the witnesses for the Respondents, Tim Quye, it is submitted that the Tribunal failed to give any weight to that recording. We repeat the observation we made earlier, as to the Tribunals duty, when setting out reasons for its decision. But more particularly, we have been taken to that transcript and we are not satisfied that it establishes as Mr Edward would have us believe, the proposition that Mr Quye was resiling from evidence which he gave in a statement to the Respondent, to the effect that there was no handling charge policy practised by the Respondent. Again we see nothing in this point.

(4) It is said that the Tribunal failed to consider evidence led by and on behalf of the Appellant to the effect that the Respondent fabricated evidence against him. This is a purely factual question and we are satisfied that the Tribunal weighed up the evidence before them and in terms, expressed their conclusion that whilst they found the Appellant to be an unconvincing witness, they were impressed by Ms Mahon and accepted the evidence which she gave to them. In short, they rejected any suggestion either of a conspiracy against the Appellant or that evidence had been fabricated against him.

(5) It is said that the Tribunal failed to direct themselves correctly as to the test for wrongful dismissal, as opposed to unfair dismissal. This part of the case is dealt with at paragraph 12 of the Tribunals reasons. They had in mind the direction given by Morrison J, in the first appeal, as to the difference between unfair dismissal and wrongful dismissal as a matter of law. They directed themselves that it was the Tribunals duty to consider whether on the balance of probabilities, the Respondent had made out their case that the Appellant's conduct was such that they were justified in dismissing him for gross misconduct. They answered that question in the affirmative. We can see no error of law in that self direction.

(6) It is the Appellant's complaint that the Tribunal failed specifically to mention the evidence of Mr De Brito, a former Assistant Head Concierge who was called on behalf of the Appellant. We are told that his evidence was to the effect that there was a practice of the Respondent to make a handling charge. Since the Tribunal roundly rejected the Appellants evidence, it is, we think, properly to be inferred that they rejected the evidence of Mr De Brito. Again we do not think it essential that the Tribunal set out that witnesses evidence in full in order to state their conclusion that they do not accept it.

(7) There is a challenge to the Tribunal's conclusion that the Respondent had carried out a thorough investigation. Again that is a pure question of fact for the Tribunal and not one with which we can interfere.

(8) Finally it is said that the Tribunal erred in law in failing to note a disparity in treatment between the Appellant and his Assistant Head Concierge, Mr Lavin. The submission is that if the Appellant was to be dismissed, so too Mr Lavin should be dismissed because he admitted in his statement to the Respondent dated 9 September 1996 that he had always added the £10 handling charge to DHL transactions when working with the Appellant on the shift. Although not dealt with specifically in the Tribunal's reasons we infer that if the point was taken by Mr Edward and it does not appear in any of the pleadings, then it was rejected on the basis that Mr Lavin was working under and answerable to the Appellant, who appears on his account to have introduced this extra payment.

7. Taking all these matters into account we have reached the conclusion that this appeal discloses no arguable point of law which ought to go forward to a full hearing and in these circumstances, it must be dismissed.