Appeal No. EAT/567/89

	ZZZZZZZZZZ APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 24 June 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR D G DAVIES

	MR R H PHIPPS

MR J HUDSPITH	APPELLANT

POST OFFICE COUNTERS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCE

For the Appellant	MR B MORDSLEY
	(Solicitor)
Messrs Harris Rosenblatt & Kramer
Solicitors
26-26 Bedford Row
LONDON
WC1R 4HE

	

	MR JUSTICE WOOD (PRESIDENT):  This is an Appeal by way of a Preliminary Hearing by Mr Hudspith, from a Decision from an Industrial Tribunal sitting at London (South) on the 3rd and 4th July 1989.

	He had issued and filed an Originating Application dated 28th February 1989 in which he alleged unfair constructive dismissal by the Post Office Counters Limited who were his employers.  

	In the Notice of Appearance the case put forward by the Respondents was somewhat different.  They alleged that they had dismissed Mr Hudspith and they had dismissed him for misconduct, namely, that he had failed to turn up for duty on the 3rd January 1989.  

	The grounds upon which this Appeal is put forward by Mr Mordsley for the Appellant can be divided basically into two parts.  First, he criticises the way in which the Decision was reached and submits there was an error in law and secondly, he put his Appeal on the basis of bias in the learned Chairman.

	Looking at the matter in that sequence, the points taken by Mr Mordsley on the actual Decision fall again into basically two parts.  The problem facing this Industrial Tribunal was a somewhat unusual one and depended upon the fact that the case was being put in diametrically opposite ways by the parties.  Mr Mordsley has explained to us that the Applicant did not want to put his case in the way the Respondents were putting it, because he felt he had no possibility of success.  He therefore persisted in alleging that this was a case of constructive dismissal.

	Looking at the Originating Application it seems to us clear that the basis being put forward for the basic breach of contract, which was therefore the basis of the submission of constructive dismissal, was that Mr Hudspith had been given certain assurances before moving from London down to Farnborough for a short period of time and that there had been a breach of those assurances which warranted him resigning.

	Looking at it first in that way, the Tribunal examined the documentation;  they examined the evidence given by the witnesses and they found that there were no such assurances.  That was a finding of fact and Mr Mordsley does not seek to go behind that.  The assurances were said to be evidenced by two documents with some handwriting on them; the evidence from the Respondents was accepted by the Tribunal.  It follows therefore that they found against that finding of fact.

	There then came the question of the actual resignation.  This was dealt with in paragraphs 13 and 14 of the Tribunal's findings.  On the 8th December 1988 Mr Shaw, in the management, wrote to the Applicant and asked him to report for duty back in London on the 3rd January 1989, having reverted to his former level.  Mr Hudspith wrote a long letter, in his own hand, which is before us, dated 9th December 1988 saying he intended to resign;  alleging constructive dismissal, but putting certain conditions in that letter.

	The Post Office did not act on that letter but wrote again, indicating that he should attend and if he did not, it would be a breach of disciplinary regulations.  Mr Hudspith did not arrive; he was not prepared to arrive;  and he alleged that they were in breach.

	The Tribunal, of course, had to decide why, whether there were grounds upon which the Applicant could treat the behaviour of the Post Office as a fundamental breach;  secondly, whether he had resigned;  and thirdly whether that was so clear that the Post Office had accepted that resignation.  They were unable to find that there was a clear resignation and secondly, they found that even if there had been, they were against Mr Hudspith that there had been a fundamental breach by the Post Office.  The Tribunal then go on to find that in fact, because there had not been a resignation, there had been a dismissal; they found that there were good grounds for dismissal and section 57(3) being applied, the dismissal was not unfair.

	The criticism of that approach is that the Tribunal did not really consider the Applicant's case;  he was putting it on constructive dismissal;  they thought it was a dismissal and therefore they did not consider his case as he was putting it.  Looking at this Decision we are unable to accept that submission.  The Tribunal were in a difficult position but they had to consider first, whether there was a resignation and secondly, whether there had been fundamental breach so that the constructive dismissal was established.  They found against the Applicant on each of those matters.

	Mr Mordsley submits that the Tribunal failed to consider a second limb of the constructive dismissal case, namely that the Applicant had been wrongfully accused of claiming excess travel expenses.  It is common ground between us, the Court and Mr Mordsley, that was not contained in the Originating Application.  It is not clearly set out in the way that the case was put, and it certainly was not suggested by the applicant in opening his case or in giving evidence before the Industrial Tribunal.  The matter was raised in cross-examination and the evidence shows that Mr Hudspith was not prepared to answer those questions because he was bringing proceedings in the County Court; that fact is corroborated at the bottom of the second page of the typewritten document attached to the Originating Application.  

	It seems to us therefore that that was not the way the case was being put, and it has been put forward on a different basis here on the Appeal.  Thus the Tribunal cannot be criticised for the approach that it took and there is no error of law.

	Turning to the second criticism of the way that the "Reasons" are framed, Mr Mordsley refers us to three different passages in the Decision.  First of all he refers to paragraph 11 where he points to a sentence reading thus:
"The Tribunal are satisfied having had to deal with the applicant in this Tribunal and having seen the correspondence that he has indulged in with the respondents that he can be very difficult."

and secondly, to a sentence in paragraph 14 where the first two sentences read:
"According to the evidence of Mr Shaw knowing the applicant he was not sure whether he would turn up or he would not.  This was a very fair assessment of the applicant."

	Looking to those two sentences, which are criticised, it seems to us in each case the Tribunal are look at the evidence before them and simply making their own comment on the evidence.  In the first case it is on the correspondence and of course what they have seen of the Applicant, but is in relation to the correspondence and the content of the correspondence as well as their assessment of him.  In the second it is to the evidence of Mr Shaw; they accept that evidence and indicate that it seems to fall in with their own assessment of the Applicant.  We see no error of law which would indicate an injustice in this case in either of those two passages.  It follows therefore, on the first half of Mr Mordsley that we can find no error of law.

	We turn therefore, to the question of the allegations of bias.  They fall into five different headings and we seek to deal with each of them as best we may, this being of course an ex-parte hearing.  On our direction an affidavit has been sworn and there have been comments made by the learned Chairman and also by one of the lay members, who was present, on these two days sitting of the Industrial Tribunal.  The comment of the learned Chairman is that she is unable to remember the case in detail but she has had the kindness and courtesy to dictate from her Notes of Evidence that she took; they have been typed out and are to be found over some 25 pages in the bundle before us.  She did not take the evidence in chief of the Post Office witnesses but she took a note of the cross-examination.  We therefore assess this matter as best we may on the documents before us.  

	The first complaint made by Mr Hudspith was that when he sought to approach the Bench at the Industrial Tribunal, he was asked to sit down and the Clerk was asked to take the bundle of documents to the Bench.  It is said that that caused him unease and put him "off his stroke" to use a colloquialism, but it is something that happens from time to time in Courts, if there is an usher or a clerk, the parties are asked to stay where they are and hand up the documents.  This does not seem to have been something that occurred to the lay Member, Mrs Nobes, as being in any way unusual.

	The second criticism is that Mr Hudspith had prepared a bundle of documents which he had marked and numbered and he was not allowed to use that bundle, because it was marked and that a bundle containing, I think all but one, of the same documents, which was unmarked and put in by the Respondents, was utilised.  One knows that it is possible to make notes on a bundle, any advocate knows that, and it was said that by using the unmarked bundle that Mr Hudspith again was embarrassed and "put off his stride".  That is a matter of comment but it seems to us that what may have happened at the start of this hearing is that the Tribunal were "bending over backwards" to try and assist Mr Hudspith and pointing out the problems of proceeding on the basis of an allegation of constructive dismissal when the burden of proof would be upon him; they genuinely thought it might have been easier for him to present his case if it was for the Respondents to "open", as it would have been their case; that he did not wish to do so; he was urged to do so and as a result of that perhaps he became somewhat flustered.  Nevertheless, it seems to us abundantly clear that the Tribunal were trying to assist and, in the light of the comment from the lay Member, we cannot accept that there was anything here that amounted to bias against him.

	There were three other points that were made.  First of all it was suggested that the Tribunal treated the Respondents' witnesses differently, we can find no evidence of that in our notes, and that may be because Mr Hudspith was upset at the early suggestion that his case should be put another way.

	Lastly, it was said that there was an intemperate approach and that this learned Chairman had been criticised on another occasion.  That is really of no moment here, we are looking at this particular case.  One comment that she is alleged to have made was that in junction proceedings brought by Mr Hudspith in the High Court, which failed, were a "waste of money".  That may have been a comment which was better left unsaid, but nevertheless, to suggest that that is bias and that the whole case therefore should be reheard seems to us rather an extreme comment.

	We have perused these papers, some 60 or 70 pages and a long affidavit; we have been very careful to see whether on the documentation that we have been able to see, which is not the whole documentation, but the relevant documentation, and on the Notes of Evidence and the submissions made, there is an injustice in this case.  We are quite satisfied that there is no error of law.  We are satisfied that there was no injustice and that the Tribunal in the end did what they thought was right and proper between these parties.

	It follows therefore that this Appeal must be dismissed at this stage.