Case No: A2/2007/2864
Neutral Citation Number: [2008] EWCA Civ 453
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE BIRTLES)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17th April 2008

Before:

LORD JUSTICE WALL

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Between:

	SARIEDDINE	Appellant
	
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ABOU ZAKI HOLDING COMPANY	
Respondent

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment
Lord Justice Wall:

1.	This is an application by Mr Sarieddine for permission to appeal against an order made in the Employment Appeal Tribunal by HHJ Birtles, sitting alone on 14 November 2007.  The order made by the judge was to dismiss Mr Sarieddine’s application for permission to appeal against orders made in the employment tribunal.  Mr Sarieddine now renews that application to this court. 
2.	 I say at the outset that I have considerable sympathy for Mr Sarieddine, who is plainly a very worthy citizen.  He told me with great pride, and if I may say so, justifiable pride, about his three sons, all whom have done extremely well.
3.	  Mr Sarieddine feels very strongly that the circumstances in which he came to be dismissed from his employment with the respondent company are unsatisfactory and should be the subject of further consideration in this court. However, I sought to explain to Mr Sarieddine that whilst a number of people come to this court thinking that we have very wide powers, effectively to do what we like in relation to orders made in the inferior courts, the truth is that I can only give permission to appeal against  the decision of Judge Birtles if Mr Sarieddine can satisfy me that there is a point of law in the case which requires the attention of this court.  
4.	In other words, to put the matter another way, I have to be satisfied that it is arguable that the employment tribunal has made an error of law which the Employment Appeal Tribunal has failed to correct. So the difficulty which Mr Sarieddine faces in this court, as I shall explain in just a moment, is that it seems to me, as indeed it seemed to Judge Birtles, that really this matter turns very much on its facts and it is commonplace that the facts are a matter for the employment tribunal. Provided the employment tribunal makes findings of fact on material which is properly open to it, then whether or not this court or indeed the Employment Appeal Tribunal might have made different findings, is neither here not there. The Tribunal’s  findings cannot be interfered with.
5.	What has happened, ironically, in this case is that Mr Sarieddine has had a great measure of success.  He was employed by the respondent as a waiter, in one of its restaurants, called the Maroush Gardens.  His employment began on 17 May 2004 and he was dismissed a little over a year later in May 2005.  Nonetheless the Tribunal rightly found that he had been employed for more than a year and that accordingly the Tribunal has jurisdiction to entertain his claim for unfair dismissal and the provision of written reasons for his dismissal.  That hearing duly took place before the Tribunal on 4 and 5 January 2006 and Mr Sarieddine succeeded.  The Tribunal found that he had been unfairly dismissed and they ordered reinstatement and a monetary award.  Neither side appealed against that decision.
6.	On 16 January 2006, the former employer wrote a letter to Mr Sarieddine in these terms:
“We are aware of the order of the Employment Appeal Tribunal  [This is in relation to reinstatement]… however, with the closure of Maroush III for two months due to a fire, and the closure of Signor Marko, the company is significantly over manned at the moment as the staff at Maroush III and Signor Marko have been incorporated into other restaurants.  Nevertheless we are aware of our responsibilities and we are willing to employ you at Beirut Express Restaurant.  You will be offered the same financial package, however you will be required to sign a contract of employment which all employees of Maroush Restaurants are now obliged to sign, together with the Staff Handbook.  
We trust you find our proposal satisfactory and we look forward to seeing you attend work as soon as possible.”
7.	Mr Sarieddine did not find that proposal satisfactory, because he took the view that to be employed at the Beirut Express was demeaning in relation to what he had previously been doing as a full waiter at Maroush Gardens and so the matter went back to the Tribunal because there had been no reinstatement.  
8.	On 23 June 2006, the Tribunal duly found that the respondent had failed to reinstate Mr Sarieddine. They did not accept the arguments put forward in the letter about the impracticability of re-employing Mr Sarieddine. However,  in the light of the matters advanced in that letter, the Tribunal found, as a fact -- and this is where I get to Mr Sarieddine’s difficulties -- that there had been a failure on Mr Sarieddine’s part to mitigate his loss. The Tribunal found – as a fact – that the failure of mitigate arose by reason of the fact that Mr. Sarieddine had not accepted the offer of alternative employment. So the Tribunal  found that he had failed to mitigate his loss after February 2006.
9.	I have already given Mr Sarieddine’s reasons for not wanting to work at the Beirut Express.  Those reasons are, however, as I ventured to suggest to Mr Sarieddine, all very much factual matters which it was for the Tribunal to sort out.
  
10.	Mr Sarieddine then sought to appeal to the Employment Appeal Tribunal, but his appeal ran into a number of difficulties, until Silber J, on 25 July, made what is known as a Barke referral back to the Tribunal, inviting it to clarify the findings which it had made at the remedies hearing. As a result, there is a document from the Tribunal, setting out in some detail the answers to Silber J’s questions.  I do not propose to read them all out but they are on the record and in my bundle.  
11.	Finally therefore, after these difficulties, the  appeal came before Judge Birtles, sitting by himself on 14 November.  His judgment has been transcribed and is in my papers.  He went carefully through various grounds of appeal, again which I do not, I think, need to do. What he ends up saying is this:
“I have listened carefully to those submissions.  [I should say that on that occasion Mr Sarieddine was represented by someone, I think, from the FRU]  I look back at what the Tribunal said in its remedies judgment and also in the 16 material paragraphs of the answer to the Barke request.  Looking at the evidence the Tribunal heard, which is extensively referred to, both in the Claimant’s evidence, [the appellant here] the evidence of the Respondent as given by Mr Khalil, the correspondence, including correspondence from (inaudible), I am satisfied that there was more than enough evidence for the Employment Tribunal to find that there was indeed an offer of alternative employment made to the Appellant at the Beirut Express.  The Employment Tribunal was also entitled to find that by refusing or declining to sign a standard agreement and getting into negotiations about money, particularly tips, Mr Sarieddine had refused the offer made to him.  I think the distinction between a refusal, and not accepting, is, with respect to Mr Kohanzad, an unrealistic distinction on the facts of this case.”  
Judge Birtles accordingly dismissed the appeal.  
12.	I have, as I told  Mr Sarieddine in argument, read the papers carefully and listened to what he has said this morning.  I understand his very strong opinions on the subject, but I have to say that I agree with the judge.  This case turns essentially on its facts.  The facts were for the Tribunal to determine. Mr Sarieddine succeeded to a very large measure.  He was undoubtedly unfairly dismissed, the Tribunal so held and he has received compensation for that unfair dismissal.  He will never, of course, come fully to terms with the fact that he was not properly re-employed by the company and that he has lost the employment in which he plainly took a great deal of pride.  As I say, those are not matters which come within my purview.  I am simply concerned with what the Tribunal did.
13.	I notice that when refusing permission to appeal on paper, Ward LJ said this:
“An appeal only lies to the Court of Appeal if it can be shown that the Employment Tribunal erred in law.  As the judgment of HHJ Birtles demonstrates, there was no error of law in their decision.  The Grounds of Appeal raise issues of fact, which the applicant now disputes.  That is not enough to justify this court entertaining the appeal.  It has no real prospects of success.”

I have to say that I agree with that and I should say to Mr Sarieddine that if I were to give permission and were this matter to come before the full court and were he to lose, there is no doubt at all that the respondents would be entitled to ask for their costs and be given their costs and he would, in my view, as a result be very substantially out of pocket.  
14.	I have to say to Mr Sarieddine, therefore,  that this application must be refused and will be dismissed. He does, however, have the findings of the Tribunal.  He was unfairly dismissed.  He was not reinstated as the Tribunal ordered he should have been and in my judgment, therefore, he has very substantially succeeded before the employment tribunal and he should take some comfort from that.  I wish him well, of course, in his search for further employment and I will direct that a copy of the transcript of what I have just said is made available at public expense to Mr Sarieddine who, although he speaks excellent English, may not have fully understood everything that I have said this morning.  If that judgment assists him in obtaining further employment I shall be very glad but the application itself I am afraid would not stand any success in front of the full court and must therefore be dismissed.
Order: Application refused