United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


MR JUSTICE WALL

1. This is the preliminary hearing of an appeal by Litigation Solutions Ltd (the Appellant) from the decision of the Employment Tribunal sitting at Nottingham on 22 November 2000. The unanimous decision of the Tribunal was that the Appellant had made unlawful deductions from Mr Jennings' wages and were ordered to pay him the sum of £403.
2. From that decision the Appellant appeals as to the sum of £250 representing commission which he says Mr Jennings had not earned. The appeal was listed for preliminary hearing today. However, on 28 September a fax was received from the Appellant in these terms:

"Please note that Mr T Price, Managing Director, is not able to attend the appeal hearing on 4^th October 2001, as he is away on business. We would like the hearing to be adjourned.

We apologise for any convenience caused.

If you have any further queries, please do not hesitate to contact at the above telephone number."

To that fax the listing officer replied stating that the application had been referred to the Registrar who had directed that the matter remain in the list of hearing on 4 October 2001 ie today. The letter concludes:

"You may, of course, wish to renew these submissions by way of preliminary point on this date."

3. We have considered the papers in this case and for reasons which I shall now explain we have decided that it would not be appropriate to adjourn the case but to deal with it today.
4. The decision of the Tribunal was sent to the parties on 5 February and the only point which arises in the appeal is the question of commission earned by Mr Jennings. According to the Extended Reasons given by the Tribunal, Mr Jennings was entitled to commission under a scheme created by the Appellant. The scheme required Mr Jennings to reach a fixed level of sales - £10,000 a month. Once that level was achieved he was paid commission of two and half per cent on all the sales, including those making up the fixed level. Commission was paid on or about the 15^th day of the month following the calendar month during which the commission was earned. Mr Jennings did not receive any commission for April 2000. He received commission for the months of May and June but not did not receive any commission for July. Mr Jennings usually had no difficulty in reaching the fixed level of sales. The Tribunal found that it was "almost certain" that he achieved his target level of sales during July. That was a finding of fact by the Tribunal.
5. Later in the reasons, this is said:

"Turning to commission earned during the month of July and which under normal circumstances, Mr Jennings could have expected to have been paid on or about 14 August. We are satisfied, and it is not substantially disputed, that he worked properly during the month of July. We have heard that during May and June he worked properly and earned commission. We do not know how much work was introduced by Mr Jennings during the month of July but we are satisfied on the basis of his previous conduct and his evidence that he would have made a minimum of £10,000 and accordingly commission of £250 would be due to him as wages which has not been paid. We find this an unlawful deduction and order that sum to be paid to him. In addition, he worked for 4 days during the month of August and is entitled to be paid for those days."

6. In the notice of appeal the Appellant accepts that Mr Jennings was entitled to commission as found by the Tribunal and also accepts that Mr Jennings received commission for the months of May and June. The notice goes on:

"Mr Jennings usually had no difficulty in reaching the fixed level of sales, but for the month of July, Mr Jennings did not achieve his target level of sales. Mr Jennings did not work properly during the month of July, even though his performance was satisfactory and he reached the fixed level of sales in May and June, Mr Jennings, for the month of July did not reach £10,000, which he was required to reach in order to be paid commission.

Therefore, Litigation Solutions Ltd, dispute this part of the Tribunals decision, this being the sum of £250, as it cannot be assumed by the Tribunal that Mr Jennings had reached the fixed level of sales, where Litigation Solutions Ltd has evidence to the contrary. Mr Jennings is not due the sum of £250, thus there being no unlawful deduction from Mr Jennings wages."

7. The question of whether or not Mr Jennings earned commission for the month of July is in our view a factual matter in relation to which evidence should have been put forward in the Tribunal if it was the Appellant's case that Mr Jennings had not reached the fixed level of sales for July.
8. We do not know what evidence was placed before the Tribunal but plainly by the time the matter was heard by the Tribunal it should have been easy (as at November 2000) for the Appellant to have produced evidence as to the commission earned and the level of sales achieved by Mr Jennings.
9. It seems to us therefore that Litigation Solutions Ltd have had their opportunity to place proper evidence before the Court. It would appear they did not do so. There are two clear findings of fact by the Tribunal as to Mr Jennings'entitlement to the money. In these circumstances we find it impossible to perceive a point of law which would make it appropriate for this appeal to proceed to a full hearing. In these circumstances we propose to dismiss the appeal at this stage.