Appeal No. EAT/402/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9th December 1993

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J H GALBRAITH CB

	MR D O GLADWIN CBE JP

HALDANE FOODS GROUP - SOYA MILK DIVISION	APPELLANTS

MR R WILDE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR N RABHERU
(Representative)

		MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal by Haldane Foods Group - Soya Milk Division against a decision of the Industrial Tribunal held at Manchester on the 24th March 1993.  The application to the Tribunal was made by a former employee of Haldane Foods Group, Mr Wilde.  

	Mr Wilde was employed as a process worker.  His complaint to the Tribunal was that unlawful deductions had been made from his wages in contravention of the Wages Act 1986.  The Tribunal unanimously decided that the complaint was well founded and declared that the gross sum of £535.04 had been unlawfully deducted Haldane Foods Group were ordered to pay that sum to the Applicant.  Haldane Foods Group appeal against that decision.

	This Tribunal has only got jurisdiction to entertain that appeal if a point of law arises from the decision of the Tribunal.

	Before we go to the details of the calculations we should mention the way in which this matter came before the Tribunal.  

	On the 13th July 1992 Mr Wilde presented his application to the Tribunal.  He gave details of the circumstances in which he complained that he had not been paid the full amount.  He said in his Originating Application that he was told by his employers:
		"that he had not been paid the full amount because he had left them in the lurch."

He attached to his application a list of what he was paid and what, he says, he should have been paid.  According to that list there are clearly set out details of basic pay;  holiday pay;  bonuses and deductions.  The figures given by Mr Wilde were that he was paid £437.55, but  that he should have been paid a much higher figure.  That higher figure included four weeks holiday pay at £944.00;  basic pay for the week worked, £105, and bonus pay for the week worked, £81.  

	In the form itself he gave details of how he worked a basic 55 hours per week. He gave details that his basic wage was £131.25 a week and other bonuses and benefits amounted to £105 a week.  That makes a total of £236.25 a week.

	On the 5th August 1992 the Industrial Tribunal received from Haldane Foods Group a Notice of Appearance dated 30th July 1992 signed by Mr Rabheru, a Manager with Haldane Foods Group, who has appeared on behalf of that organisation on this appeal.  In Box 6 of the Notice of Appearance the question was asked:
		"Are the details given by the applicant about wages/salary or other payments or benefits correct?
            ┌────┐
            │ X  │ Yes"
            └────┘
The answer to the complaint made by Mr Wilde was not otherwise disputed as to the details of basic pay, holiday pay and bonuses in Section 8, which asks the person giving a Notice of Appearance to give details of the grounds on which the application is resisted.

	Notice of the time and place of the hearing before the Industrial Tribunal was given to Haldane Foods Group.  It appears from the decision of the 24th March 1993 that Mr Wilde appeared at the hearing in Manchester "in person".  Haldane Foods Group did not appear, despite being notified of the date and place.

	A letter written subsequently, to the Registrar of this Tribunal, contains an apology for failing to attend the hearing.  It stated in the letter from Mr Rabheru, of that date, that the failure was caused by his secretary "entering the appointment into my diary for the wrong day".  By the time the mistake was discovered the hearing was over.

	The Tribunal gave first, Summary Reasons and then Full Reasons for its decision.  In the Full Reasons the Tribunal explained, that according to its calculations Mr Wilde should have received a gross sum of £1,130, made up as to:
Holiday pay (4 weeks) = £944 (that is 4 x £236 being the basic pay and bonuses of Mr Wilde)
Basic Pay (4 days) = £105 (that figure is not disputed by Mr Rabheru)
Then there is the figure, in the final decision, £181, which is clearly
a mistyping for £81 when one comes to look at the total figure.  The figure of £81 correctly appears in the Summary Decision at paragraph 4.

	Mr Rabheru, on this preliminary hearing, disputes the element of bonus pay.  He disputes the £81 awarded under the heading "Bonus Pay". He disputes the bonus element in the calculation of holiday pay.  The basis on which he disputes it is that, according to the contract of employment, a copy of which was before the Industrial Tribunal, bonus pay is discretionary. According to Clause 8 of the contract he submits that bonus pay should not be payable to an employee who has not fulfilled the requirements and goals for bonus set out in Clause 8.  Clause 8 provides:
		"Your basic salary will be £125 per week.  You will also be entitled to a bonus of up to £75 per week.  The bonus payable is to consolidate the following goals and requirements:-

		i)		Renumeration for overtime work.

		ii)		Achievement of a feasible production target, in accordance with the plant capacities.

		iii)		Punctual attendance.

		iv)		Avoidance of breakdowns, due to carelessness.

		v)		Adherence to the repairs and maintenance procedures.

		The bonus also covers adherence to the processing procedures (ie no corners cut).  This will ensure that the quality of the product is maintained.  If a responsible attitude is taken during absenteeism or lateness by keeping your Supervisor informed (even if this means making a reverse charge telephone call), then the penalty on the bonus will be minimal.

		For the above reasons the bonus is referred to as `Productivity Attendance and Quality Bonus'.

We should also refer to Clause 4) of the contract of 1st April 1991 which refers to holiday entitlement and that provides:
		"Holiday entitlement will be four week's holiday with pay"

Mr Rabheru's point is that, having regard to the circumstances in which Mr Wilde left the employment of Haldane Foods Group, and to the fact that a large element of the calculation by the Tribunal was for holiday pay, the bonus elements should be eliminated from the figure Therefore there has been a mistake.

	Our conclusions on the submissions is that there has not been any error of law on the part of the Tribunal shown.  Therefore this appeal should be dismissed at this preliminary hearing.  Our reasons for this conclusion are these Mr Wilde made it clear in his Notice of Application precisely what his calculations were.  The figures given by Mr Wilde in his form of Notice of Application for basic pay and bonuses or benefits per week were agreed in the Notice of Appearance put in by Haldane Foods Group.  It was therefore not surprising that when the Tribunal came to do the calculations, in the absence of any representation or attendance from Haldane Foods Group, they should put in to their calculations £81 for bonus and £944 for holiday pay, including bonuses.

	We see why Mr Rabheru makes his submission about bonuses.  It is not correct, however, for him to submit, that as a matter of law the bonuses are discretionary.  There is an element of entitlement.  The contract provides that the employee will be "entitled to a bonus".  The discretion relates to the amount of the bonus, having regard to the goals and requirements which are set out.

	In those circumstances and, particularly in view of the fact that Holdane Foods Group were not, through their own fault, present at the hearing before the Industrial Tribunal, we find that the Industrial Tribunal was entitled to come to the conclusion that the figures, which Mr Wilde was entitled to be paid, included 4 weeks holiday pay, inclusive of bonuses and included the bonus for the four days.  In those circumstances there is not a sufficiently arguable point of law involved to justify this matter going to a Full Hearing.  The appeal will be dismissed.