Appeal No. EAT/524/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 30th September 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR J D DALY

	MISS C HOLROYD

GEORGE TURTON PLATTS & CO LIMITED	APPELLANTS

(1) C R DILAURENZIO	RESPONDENTS
(2) MR R CRUZ

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	JOHN BOWERS
(Of Counsel)
Oxley & Coward
287-289 Glossop Road
Sheffield
S10 2HB

For the Respondents	BRUCE CARR
(Of Counsel)
Messrs Rowley Ashworth
247 The Broadway
Wimbledon
London
SW19

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal by respondent employers from a Decision given by an Industrial Chairman in Sheffield in July this year, whereby he refused to exercise his powers under Rule 15 of the Industrial Tribunal Rules, to hear two applications together.  The applications were brought by a Mr Dilaurenzio and a Mr Cruz against George Turton Platts & Co Ltd.  In each case they were alleging unfair dismissal.  Mr Dilaurenzio said that the Company did not give sufficient consideration to all the circumstances.  Mr Cruz alleges that he was accused of fighting on Company premises and he then sets out in greater detail what he said occurred on that occasion. 

	That occasion was one in which a fight took place between the two men.  It seems that this was a heavy industrial setting, and fighting, I think, one would generally recognise, would normally constitute gross misconduct because of the obvious danger of fighting if you have got heavy moving machinery.

	The employers investigated the matter and have filed Notices of Appearance which set out in some detail the full nature of the inquiry which was conducted.  Statements were taken, they looked into the matter, they heard both parties, reached a conclusion and dismissed each of them.

	The basis upon which the opposition to the matters being heard together is based, is that the trade representative, the District Officer, wanted to represent the two men.  Of course there is a direct conflict of interest because it is abundantly clear that one was likely to blame the other.  From the experience of the Industrial Members of this Court that indicates at once that two different officers should be there to represent each of those Applicants because where you get a conflict of interest whether your a Barrister, Solicitor or an Advocate the principle is absolutely clear that you cannot do your best and represent someone if you have got a conflict of interest because you are representing someone else.  That is a very elementary principle and a most important one in the ordinary application of the principles of natural justice.

	 Thus that ground was, in our judgment, an erroneous ground upon which to decide that matters should not be heard together.

	Is there a positive side to balance against that?   It is quite clear that in their letter of the 17th July 1992 those representing the Company indicated that it was going to be important, as indeed it is all too obvious to state, that when looking at the situation as at the time the decision to dismiss was taken, it is going to be important to have before the Tribunal all the evidence, which was available to the employers at the time.  The employer is clearly not going to look at one case or the other case in isolation.  There has been a recent case in the Court of Appeal upon fighting where that sort of comment was made and indeed, in a case which was cited to us of Dietmann v. London Borough of Brent and Wahlstrom v. London Borough of Brent  [1987] IRLR 146, the learned Master of the Rolls, Sir John Donaldson, indicated in a case rather similar to the present, that it was clearly in the interests of everyone that the two cases should be heard together.  There will be a slight increase in costs because of the time, but here the increase in cost seems to be unlikely to be much because it looks as if the whole matter could be heard in one day.  Therefore, there would only be one day's costs involved.  If there was a second day there might be some comment on that.  However, balancing that against what is undoubtedly going to be necessary, which is, to hear the whole of the evidence of what was available to the employers when reaching their decision, it seems to us the most obvious case where the two matters should be heard together.

	Mr Carr has quite rightly pointed out that this was the exercise of a discretion by the learned Chairman and in being the exercise of a broad discretion it is not for this Court to interfere unless there is a breach of the Wednesbury rules.  The Wednesbury rules there set out that he took into account something he should not have taken into account, or he failed to take account of something he should have taken into account, or the Decision in the view of the Appellate Court is just plainly wrong.  In this case he took into account the fact that the trade union representative wanted to represent both parties.  That was something that clearly should not happen and it was not a factor, which in our judgment, should properly have been taken into account.  However, if we are wrong on that, we ultimately move to the third basis here, that I am afraid there is a radical disagreement here.  This seems to us, in the light of Dietmann to be the obvious case where for all the reasons which have been enunciated, it is clearly a case where the two cases should be heard together.

	We therefore, regretfully, find ourselves taking a wholly contrary view to that of the learned Chairman.  This appeal will be allowed there will be a Direction that these two matters are heard together on a day to be appointed.