Appeal No. EAT/898/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19th May 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR T S BATHO

	MISS A MADDOCKS OBE

B & B GALE LTD t/a CHIC CANE & PINE	APPELLANTS

MRS E MORRISON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR B GALE
(Managing Director)

	MR JUSTICE WOOD (PRESIDENT):  This is an appeal from two decisions of an Industrial Tribunal sitting at Newcastle-upon-Tyne under the Chairmanship of Mr Tavroges.  The Applicant was a Mrs Morrison.  The respondent Company was B & B Gale Ltd t/a Chic Cane & Pine.

	The pleadings indicate a very simple case indeed.  Mrs Morrison alleged that she had been dismissed.  That she had attended a meeting, been asked to resign as it would make it easier for her to claim unemployment benefit instead of being dismissed.  She said she had no intentions of leaving the job she felt that she had been pressurised, never been given a verbal or written warning and treated very badly, she complained and wanted justice.

	The Company put in a Notice of Appearance, a defence.  Their defence was a very simple one, they said that in September 1991 the Respondents spoke to the Applicant about her changing back to her sewing machinist position in the near future and that the Applicant had asked to be made redundant.  She was still working and resigned later that month on the 23rd September.

	That was a simple matter and a simple issue before the Tribunal.  Before the Tribunal Mrs Morrison was represented by Counsel, the Company were represented by a Mr Lamb, who is a consultant.  Mrs Morrison called her husband, the Company called Mr Brian Gale, the Managing Director;  the Production Manager, Mr Craig Watson;  the General Manager Mr Christopher Zebik;  the Manager of their retail outlet at "Pity Me" Mrs Henderson.  The hearing took two days.

	The Applicant had started to work for the Company on the 3rd January 1989 as a sewing machinist.  The full-time cutter and supervisor in the Sewing Department, which is one of three departments - the factory,  the sewing department and the retail shop - was a Mrs Pearson.  She was pregnant and due for her maternity leave in the November of 1990.  However, in September 1990 she was suspended because of an allegation about a cutting error which caused complaints.  She became ill.  She did not return to work in September and Mrs Morrison was asked to take her place.  Her wage was increased to reflect her additional responsibility.  Despite the problems which had taken place the Applicant was aware that when the maternity leave was over Mrs Pearson might be returning to employment and she understood that at that stage the two women would revert to their original positions.

	The Applicant continued to work as a cutter, but in August 1991 a young woman was employed as a full-time sewing machinist and she worked in the Sewing Department.  The Applicant went ill on the 18th, 19th and 20th September.  She produced a self-certified note; she was unfit due to chest pains;  she had indeed been suffering from those chest pains for a few weeks prior to the 18th September 1991.

	The final incident took place a few days later.  At 7.25 am on Monday, 23rd September 1991, that was after her absence through illness, she walked to work from her home.  She was about to clock-in when Mr Watson approached her.  He told the Applicant not to clock-in because Mr Gale wanted to see her at 10.30 am later that morning.  The Applicant therefore went back home, and was driven back to her place of work by her husband in time for the 10.30 meeting.  He parked his car and waited to see what the Applicant was able to tell him after the meeting.  At about 10.40 am Mr Morrison saw Mr Zebik and recognised him.  The Applicant reported to Mr Gale's office at approximately 10.30, Mr Zebik was there, as the Tribunal found and the meeting lasted 10 minutes.  Mrs Morrison was nervous, worried about her health and that she had not been allowed to clock-on.  Mr Gale made some reference to  a cushion that had been destroyed.  The implication, as the Tribunal found, was that Mrs Morrison had been involved in some way in the destruction of the cushion.  Then at paragraph 2(j) they continue thus :
"Mr Gale told the applicant that he could either dismiss her for misconduct or alternatively he could make her redundant.  He said that he was reluctant to dismiss her because it would reflect badly upon her work record.  He suggested that the better course would be for her to resign from her employment and that he would `make it easy for her to receive her unemployment benefit'.  He asked her to write the letter of resignation forthwith.  Under threat of immediate dismissal for misconduct and as the result of her anxiety and the pressure that was placed upon her the applicant wrote a short letter of resignation.  She handed it to Mr Gale.  He looked at it and asked her to date it.  She did so.  That letter of resignation reads as follows:-

`23.9.91

I E Morrison.

Would like to put my notice in as from 23rd September 1991.

E Morrison (Mrs)'"

Then the Applicant rejoined her husband and they drove home.

	About two weeks later there was a problem with the Department of Employment and that was investigated.

	The Tribunal had to decide whether there had been dismissal because it was, of course, alleged to be a resignation.  Thereafter if there was a dismissal they also had to decide  what the reason was and then apply the provisions of Section 57(3) of the Employment Protection (Consolidation) Act 1978.  The Tribunal, in paragraph 4, said:
"The Tribunal has had no difficulty in reaching a unanimous decision that the applicant was dismissed . . . No reason for dismissal has been offered to the Tribunal by the respondents. . . It follows that the dismissal was unfair."

	The important paragraph perhaps in the light of the history thereafter is that contained in paragraph 3.  At the beginning of that paragraph the Tribunal indicated that they have observed all the witnesses, of course they are the judges of fact, and then it continues in line 5 as follows:
"In each and every case in which the evidence of Mr Gale, Mr Watson and Mr Zebik has conflicted with the evidence given by the applicant and Mr Morrison, the evidence of the applicant and Mr Morrison has been preferred to that given by Mr Gale, Mr Watson and Mr Zebik.  In the case of each of these conflicts the evidence given by those gentlemen has been totally rejected.  In particular the Tribunal has rejected evidence given on behalf of the respondents that the 2 letters dated 13 August 1990 and 12 September 1991 were written and handed to the applicant, the evidence given by Mr Watson that upon reporting for work at 7.25 am on 23 September 1991 the applicant had requested a meeting with Mr Gale, the evidence given by Mr Zebik that the applicant had expressed to him on a number of occasions her unhappiness about the prospect of not remaining as supervisor and the evidence given by Mr Gale and Mr Zebik that Mr Zebik was not present at the meeting at 10.30 am on Monday 23 September 1991.  Other areas of conflict were carefully considered by the Tribunal and decided in favour of the applicant."

Those two letters that are mentioned there, the Tribunal found that as to the first one it was a fabrication and as to the second that the copy is a fabrication.

	Mr Gale, who has addressed us today, feels that that was a very strong decision, as it clearly was, and he was perturbed by it.  He sought a review.  The award of compensation at that original hearing had been in the sum of £4,480.  

	In answer to the request for review the learned Chairman, through the Assistant Secretary of Tribunals, sent a letter of 28th May 1992 asking for statements by way of proof of evidence to be lodged, and also the proof of evidence from the Managing Director explaining why certain evidence had not been available and should be introduced now;  that was simply because it was suggested that fresh evidence was available.

	This application for review was followed by a number of letters passing between the Newcastle Community Law Centre, representing Mrs Morrison, and Mr Gale and the Tribunal and indeed from Mr Lamb.  What had happened, as was confirmed by the learned Chairman, was in connection with the issue of a reference being given to the Applicant by the Company.  There was a complaint from the Newcastle Community Law Centre that a reference which had been promised was not forthcoming.  The learned Chairman made it quite clear that no Order had been made that the Respondents should provide a reference for the Applicant within three days, however, an undertaking was given by the Respondents' representative that such reference would be provided within three days of the oral announcement of the decision on the 19th March 1992 and that the terms of the reference would be agreed.  If that agreement had not already been reached, it was indicated that the Tribunal would expect the respondent of a Company to honour the undertaking.  Mr Lamb, who was a member of Porter Lamb Associates, Management & Personnel Consultants of Hull, wrote to the Tribunal saying that the content of the reference was agreed with the representative of Mrs Morrison, after the Tribunal had announced its decision, and had been taken away by Mr Gale.  That he understood that Mr Gale had not sent the reference on and Mr Lamb said:
"At this point I advised Mr Gale that I could no longer act for him."

Mr Gale's attitude to the question of a reference is indicated in a number of letters, in particular in a letter of the 6th April and in a further letter of the 9th April in which, it is quite clear, that he is not prepared to abide by whatever undertaking had been given on behalf of him and his Company.

	Therefore, it came about, to follow the history on, that the learned Chairman had to consider whether a review would take place.  He decided that it would.  He therefore appointed a day and the matter came back for review in front of himself and the same two Members of the Industrial Tribunal.  

	In the light of what had occurred in connection with the undertaking to give a reference, the Tribunal allow the question of compensation to be re-opened and increased the total award to £5,845 but the Tribunal refused the Company's application for a review of the merits on liability.  A number of points were taken and are dealt with in a substantial set of reasons given by the learned Chairman and promulgated on 14th October 1992.  The Tribunal deal with a question of further evidence from Mrs Marion Ward, Mrs Maylia, Mitchells Chartered Accountants and I think in connection also with the Department of Employment.  Having looked at this evidence the Tribunal say:
"They [the Company] were in a position to call both ladies to give evidence at the hearing had they desired so to do.  Had there been any question of reluctance on the part of either lady to give evidence the respondents were aware (or should have been aware because of the fact that they were represented by an expert adviser) that they could have sought and obtained a witness summons to secure attendance."

Indeed they could have done it, if necessary, by the end of the first days hearing and this could have been foreseen as the Company were in the hands of experienced advisers.  They therefore reject the application based on the fact that further fresh evidence was available which could not have been available at the initial hearing.  That was a matter within the discretion of the Tribunal and it would be extremely difficult to upset the exercise of that discretion.  We have looked at the papers and we find no grounds - on the Wednesbury principles - to indicate that that discretion was wrongly applied.

	We turn therefore to the question of the appeal today.  The appeal today is again made, in substance, on the very same grounds as the ground upon which the review was sought.  They really amount to seeking to re-open issues of fact.  An appeal to this Tribunal can only be made on a point of law under Section 136 of the Employment Protection (Consolidation) Act 1978 it reads:
"An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, the following Acts -"

It is therefore for Mr Gale, today, to persuade us that there is an error of law, a point of law, which merits argument with both sides here and a full hearing.  It is right to say that he instructed solicitors but they are not here today. We received a notice taking their name off the record.  Mr Gale says that the cost of the solicitors was rather too much for his Company to bear.  

	The points therefore taken today by Mr Gale are the same as those taken by him, on behalf of the Company, on the application for review.  However, he takes one further point, namely, that it was the wrong Company, which was the respondent to the proceedings.  I am afraid it is far too late to take that point, that is a matter that should have been taken originally and it seems to us that that can not be reopened at this stage.

	He further argues that for the Tribunal to find that those two letters were fabrication and for the Tribunal to disbelieve and totally reject, as they did, the evidence that was presented on behalf of the Respondents, shows a misunderstanding, and an unfair misunderstanding of the facts.  I hope I put that in fairly low key terms, because Mr Gale clearly feels very strongly about it.  It seems to us that those are issues of fact and there is no point of law here upon which it can be said that the Tribunal erred.

	It follows therefore that these appeals must be dismissed at this stage.