United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR COMMISSIONER HOWELL QC

1. In this appeal which comes before us today for preliminary hearing, Mr Terence Walker seeks to have set aside as erroneous in law the decision of the Bristol Employment Tribunal set out in a decision notice with summary reasons sent to the parties on 25 July 2000 at pages 4 -5 of the appeal file before us, following a hearing on 21 July 2000 at which both sides appeared and gave evidence.
2. The proceedings before the Tribunal had been brought by Mr Walker by an Originating Application dated 25 April 2000, alleging wrongful dismissal of himself by his employer, Mr David Spencer, trading as Kingsdown Printers, on 17 March 2000, he having been in their employment for a period of some six months before that.
3. The allegations in the Originating Application were that the Applicant had been dismissed by means of a telephone conversation without any verbal or written reason having been provided for his dismissal.
4. It was further alleged that the Respondent had failed to provide written details of the Applicant's terms of employment; and the claim was for pay in lieu of notice, and what were claimed to be outstanding commission and other sums due under the terms of the contract of employment.
5. The Respondent's answer dated 7 June 2000 at pages 12 - 13 of the appeal file before us, gave a rather different picture and set out, in some detail, the Respondent's case which was that the Applicant, having been employed as a Sales Director, had been dismissed on 17 March 2000 for gross misconduct in connection with work being carried out for a client of the firm, Wycliffe College.
6. The firm as it name suggests, is a firm of jobbing printers, and the particular order involving Wycliffe College was for academic diaries, in relation to which there is no dispute that proofs and corrections were going to and fro, between the college and the firm, at the time of the events giving rise to Mr Walker's dismissal.
7. In the words of the Respondent's answer at page 13:

"There was a mistake in connection with the printing of the diaries which required the production of adhesive labels to attach to the diaries to correct the mistake. There was some confusion as to how the mistake arose and an argument that since it was the Respondent's fault the labels should be free of charge. The argument turned on whether or not a proof of the diary had been made available to Wycliffe College before the job was printed. The Applicant maintained that it had been and produced a proofing slip purporting to be signed by one Cathy Davies at Wycliffe College which he claimed was proof that the error was that of the college and therefore payment was due for the labels. The applicant maintained that he had personally obtained the signature on the proofing slip of Ms Davies. When this was sent to her she was adamant that the signature it bore was not hers and produced evidence to show that her normal signature was totally different. The Applicant was accordingly dismissed for gross misconduct for falsifying the proofing slip and misleading the Respondent as to the position in relation to the matter."

In the circumstances the Respondent contended that he was not entitled to any notice or pay in lieu and had been properly dismissed, summarily, in the way that he had. Those were the issues before the Tribunal.

8. The Tribunal's decision, of which we have only the Statement of Summary Reasons was to order that the Respondent should pay the Applicant £473.51 in respect of an accrued right to holiday pay, but that otherwise his claim for wrongful dismissal was dismissed. The Summary Reasons set out the position succinctly, but entirely clearly as follows:

"1. The Applicant was employed by the respondent on 15 September 1999 and was summarily dismissed on 17 March 2000.

2. The Applicant was guilty of gross misconduct in writing in the signature of a customer on a Proofing Slip and then insisting that the customer had written it herself.

3. The terms of the applicant's employment were 2% commission on his own sales with no override in force. He was entitled to 25 days holiday a year."

And then directions were given as to the payment of the outstanding amount found to be due to him for holiday pay which is not disputed.

9. Mr Walker failed to apply, within the prescribed time, for a Statement of Extended Reasons for the Tribunal's decision and by a further short decision sent to the parties on 11 September 2000, the Chairman declined to give such a Statement of Reasons out of time. He recorded the reasons for that further decision, as being that he had to bear in mind that the application for extended reasons is part of the process of instituting an appeal, and the Courts have emphasised that strict compliance with the time limits is essential, and a stricter approach is appropriate to appeals than where there has not yet been a trial on the merits. In the absence of any clear explanation of the delay, he refused the application for extended reasons.
10. Nevertheless, Mr Walker seeks to pursue an appeal against the original substantive decision of the Tribunal on the question of his allegedly wrongful dismissal on the basis of the Summary Statement of Reasons only. His Grounds of Appeal which he has produced himself (on page 1 of the appeal file before us) refer to points on the evidence and to the failure on the part of the Respondents to produce further documents than were before the Tribunal: in particular the original set of proofs to which the disputed proofing approval slip had been annexed, and what he says was a further set of proofs which had been produced after the date of that proofing slip which was 23 November 1999, and had represented a further stage in the production of the diaries for the college. However he made it clear in his address, to us that due to an oversight, that further set of proofs had never, in fact, been sent to the college for approval, so that there was no question of there being in existence any further proofing approval slip than the one dated 23 November 1999 on the basis of which his employers had dismissed him.
11. We have to consider first of all, whether this appeal should be entertained by this Appeal Tribunal at all, in the circumstances that the Notice of Appeal is in breach of the requirements of the Employment Appeal Tribunal Rules in not having with it a copy of the extended reasons for the Tribunal's decision.
12. This Tribunal has a discretion to entertain appeals, in order to identify whether there is a point of law arising on the decision of the Tribunal below, on the basis only of a Summary Statement of Reasons. In this case we have decided, having heard Mr Walker's address that we should exercise our discretion so as to consider the merits of his appeal. In doing so of course we have to bear in mind that, since the summary statement of the Tribunal's reasons is all we have to go on, an Appellant may well find himself at a disadvantage, nonetheless, in not being able to point to detailed matters in the Tribunal's consideration of the evidence which would appear from the Statement of Extended Reasons, but necessarily are not present in the summary statement and decision notice which in accordance with the Tribunal Practice and Rules is all that has been provided in this case.
13. The first substantive question Mr Walker sought to argue before us, developing the point made in his Notice of Appeal to which we have already referred, was that the Tribunal had arguably erred in law by holding that his dismissal had been wrongful. He said the allegedly forged proofing slip which had given rise to all the trouble should, for practical purposes, have been treated as irrelevant, because the production of the diaries for the college had gone forward to a second stage of proofing when, in the normal course of events, a further submission to the clients, and a further proofing approval slip would have been produced. As we have said, he admitted that this second stage of submission for approval had never in fact taken place in this case, but nevertheless he said that because of this second proofing stage, the forged proofing slip in November 1999, a copy of which is at page 3 of the appeal bundle before us, should have been regarded by the Tribunal as past history, and they should have concentrated on the later events.
14. In our judgment that submission ignores the actual grounds for Mr Walker's dismissal and so far as this appeal is concerned, is completely beside the point. As is clear beyond doubt from the Respondent's answer before the Tribunal, and the Tribunal's express findings of fact, the Appellant was dismissed from his employment for gross misconduct, and that gross misconduct consisted of forging the client's signature on the proofing slip, dated 23 November 1999. The Tribunal expressly found as a fact that he had done so (see paragraph 2 of the summary reasons, to which we have already referred) and on that basis it is quite plain that the Tribunal were satisfied as a matter of their own judgment, first that he had been guilty of gross misconduct in relation to his employment, and second that his summary dismissal on that ground on 17 March 2000 was justified in those circumstances.
15. Those are points of fact and degree on which this Appeal Tribunal cannot interfere with the judgment reached by the Employment Tribunal after considering the evidence, since the Employment Tribunal, and not this Tribunal are the judges of fact.
16. Accordingly, we were not satisfied that this point, developed by Mr Walker in his submissions to us, disclosed any arguable ground of law which would warrant us directing that there should be a full hearing of the case before the Employment Appeal Tribunal.
17. The second substantive ground that Mr Walker sought to put before us, was that as had been clear in his original Originating Application, submitted to the Tribunal, the main ground of his complaint as far as he was concerned was that he had not been given any reason, at the time of this dismissal, for why his employment was being terminated.
18. In those circumstances, he said that the case he had sought to put before the Tribunal had always been, and he emphasised it to us, was that the procedure by which he was dismissed was unfair. However, again, we have not been satisfied, on the material before us, that any arguable point of law has been identified here. The case brought by complaint to the Tribunal was a complaint only for wrongful dismissal, and any complaint based on the unfairness of the manner of Mr Walker's dismissal would have been bound to have been declined by the Tribunal for want of jurisdiction, in view of the fact that he had only been employed by these employers for some six months.
19. In any case, facts were clearly in front of the Tribunal, identified both in the Originating Application and in the Respondent's answer, to which we have already referred, to demonstrate that the Respondent's case was that these matters had been canvassed with the Applicant before the Respondents themselves contacted Ms Davies of Wycliffe College to see whether what he said was true, and before his actual dismissal for gross misconduct.
20. Mr Walker very fairly made clear in the course of his address to us, that these factual matters were, indeed, the subject of evidence before the Tribunal and although, because of the absence of a fuller statement of the Tribunal's reasons, it is not possible for us to see in detail, how they dealt with that aspect of the evidence, we have not been persuaded, in the circumstances, that there is any arguable ground for this Appeal Tribunal to infer that there was any error of law or approach in the way the Tribunal dealt with that aspect of the case; which was plainly before them and was dealt with in the course of the hearing.
21. Accordingly, as we have not been satisfied that there is any arguable ground for directing a further consideration of any question of law on this appeal by this Employment Appeal Tribunal, we now unanimously dismiss this appeal.