Appeal No. EAT/228/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1 November 1994

	Before

	HIS HONOUR JUDGE HULL QC

	MR D J JENKINS MBE

	MISS ANN MACKIE OBE

MR B M THRAXTON	APPELLANT

WALON LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R WESTON
(lay representative)

For the Respondents	MR J SWIFT
(of Counsel)
Messrs. Clarke Willmott & Clarke
6 Hammet Street
Taunton
Somerset TA1 1RG

	JUDGE HULL:  Mr Thraxton was employed as a heavy goods vehicle driver by the Respondents, Walon Ltd.  His employment began on 1 April 1990 and it ended in April 1992.  The reason for which he was dismissed was this:  that he had completed inaccurately one of his time-sheets.  The time-sheet is with our papers in a bundle, which we call the Respondents' documents and at page 1 one can see what happened.   Mr Thraxton completed his time-sheet by saying that on Good Friday 1992 he had spent a night at Stafford, away from his home (he is a Taunton man) and had proceeded to deliver cars at Castle Bromwich and at Sellyoak and at Bromsgrove.

	That was all quite wrong.  Each of those deliveries had been made the day before, on the Thursday, and he had not spent the night away from home at Stafford; he had been at home apparently.

	The Employers had to decide what view they took of this.  They conducted an enquiry.  The allegation was that this had been done dishonestly, because the effect of putting down what Mr Thraxton had put down was apparently to earn him something like an extra £100, in respect of working on a Bank Holiday and in respect of the alleged night away from home. Eventually what it boiled down to was this.  Mr Thraxton said he had made a dreadful mistake in putting these down, it was a genuine mistake.  His memory had been affected and when he had been making the entries, he had been at home during the holiday.  He had had a lot to drink.  His young family were playing around him and so forth.  The conditions were very unfavourable and he made a mistake.  

	So that was what had to be decided by the employers.  Needless to say, there were  things to be said in one way or another.  They decided that he had been dishonest and that he was trying to get more money by deceiving them.  There was an enquiry by Mr Bowles on the 27 April 1992.  Mr Bowles is the depot traffic manager at Portbury near Mr Thraxton's home.  There was a disciplinary hearing by Mr Galloway, who is the national operations manager.  At the Industrial Tribunal it was said there were no criticisms whatever of the way that enquiry was conducted and he decided that it was a true bill, that Mr Thraxton had indeed, in spite of what he said, been dishonest, and that he ought to be dismissed; and he did indeed dismiss Mr Thraxton for the misconduct of which he had convicted him.  

	It was said quite frankly at the Tribunal, where Mr Thraxton was represented by his union representative, that the procedures were impeccable.  

	Mr Thraxton decided to appeal to Mr Meadows, who was the personnel manager.  Mr Meadows conducted an enquiry.  There is a record it, which we have been shown.  Apparently, during that enquiry, the union representative who was appearing for Mr Thraxton said, among other things, that he wanted Mr Meadows to take into consideration the previously blameless character and the high principles which Mr Thraxton had always borne. That apparently led Mr Meadows to have a little think and he recalled, he thought, that Mr Thraxton had been employed previously by the same company.  He went off and saw no fewer than three managers, who would be expected to have some knowledge of the matter and they said, "Yes, he was employed by us 10 years ago and he was sacked because he put unnecessary miles on his time-sheet and an unnecessary journey or diversion and that earned him extra money and he was sacked for that."

	When Mr Meadows came back that was a matter he had enquired into and, to say the least of it, it meant that Mr Thraxton's assertion (through his representative) that he was a man of previously blameless character would have to be received with a certain amount of reserve.  But what Mr Meadows said in substance and it was in his statement which was laid before the Industrial Tribunal, was "I had already, before I made these enquiries, made up my mind that this appeal ought to be dismissed and that the only proper penalty was dismissal and, although I verified my vague recollection that Mr Thraxton had been employed before by consulting these officials, it did not make any difference to my decision. That was what he said and Mr Thraxton was told about this by Mr Meadows in the document I have referred to.  One sees it at page 31 of the Respondents' bundle.

	The dismissal, therefore, stood and Mr Thraxton complained to the Industrial Tribunal  of unfair dismissal.  He asked for reinstatement and the appearance by the employers said that he had been dismissed, justly dismissed, for falsification of his time-sheet.  

	The Industrial Tribunal sat under the chairmanship of Mr Thompson.  There were two industrial members, of course.  They sat on 10 November 1992 and 8 January 1993.  It does appear that they were invited to consider every aspect of the case.   Mr McQuade, for Mr Thraxton, was inviting them, in effect, to put themselves in the shoes of the employers, which strictly they ought not to do, and consider the merits of the matter, which led the Industrial Tribunal to make certain observations about the view which they took of the facts. What they had to do, of course, was to consider whether the dismissal was fair or unfair, as the case might be.  They had to discover the reason for the dismissal (that had to be shown by the employer) and they then had to consider under section 57 of the Act of 1978 whether the employer had acted reasonably or unreasonably in treating that as a reason for dismissal.  That was their primary task and the question whether, in fact, Mr Thraxton was guilty as charged was not a matter for them.  The matter for them was whether the employers had reached a just conclusion about that after conducting a fair enquiry and so on.

	They reached various conclusions to which our attention has been invited.  They went into the facts.  Again, we have not gone into them with the care which they did.  They recorded what had happened in front of Mr Meadows, the personnel manager, on 12 May 1992.  They dealt with what had happened on that occasion in paragraph 13.  A very full plea was made by Mr McQuade that Mr Thraxton should not be dismissed, because of his impeccable record and undoubted integrity; and then they went on to find that Mr Meadows made the enquiries which I have mentioned.

	They then go into the submissions which were made on behalf of Mr Thraxton.  Paragraph 17:

		"The applicant's representative, Mr McQuade, argued that the applicant's dismissal was unfair for several reasons.  He stated that there was an inconsistency of treatment, in that there was evidence that there were many errors by drivers on a daily or weekly basis, without any investigation or disciplinary action taken ..."

They had to consider that.

	In paragraph 18 there is a rather similar argument, another driver had been charged with a similar offence and not been dismissed.

	In paragraph 19 they record as follows:

		"In general terms, Mr McQuade, on behalf of the applicant, accepted that the disciplinary procedure adopted by the respondents was a fair one.  He disputed one aspect of the appeal, and that was whether or not a particular document was before the appeal panel - that was the disciplinary notes made by Mr Galloway at the disciplinary hearing on 30 April.  We find as a fact that that document was in fact before everyone at the appeal hearing."

Of course, findings of fact by the Industrial Tribunal cannot be challenged before us.

		"He also complained that Mr Bowles' interview was somewhat unfair, in that he did not adjourn to consider the matter more carefully.  He also complained that the telephone conversation between Messrs Hawker [an accountancy or pay clerk] and Thraxton, when Mr Thraxton was driving his vehicle in very difficult traffic conditions, was unfair.  He stated that Mr Thraxton was somewhat caught on the hop and he should have been warned to pull over and told that he was going to be asked a significant question."

Mr Hawker first brought the matter to light because he noticed an anomaly when he was looking through the time-sheet.  

		"20.	He also states that the applicant was a man of honesty and integrity, [Mr McQuade] and that had not been taken into account, and that he was very forthcoming in admitting the error when it was brought to his attention.  He states, quite categorically, that this was an error which should have been sorted out at a much lower level and it was simply that and there was no justification for the eventual action that the respondents took.

		21.  Finally, Mr McQuade says that Mr Thraxton would have been an absolute fool to do something as obvious as this and so it would have been apparent to Mr Thraxton that he would have been caught, and that supports his contention that it was not done deliberately, it was only a complete idiot who would have done it, and that supports his contention that it was a mere error and that he should be penalised as such, and not for deliberate falsification of the time-sheet."

	Stimulated, so to speak, by Mr McQuade's submissions, (it was an ancillary matter which they normally would not have to consider) this Tribunal did reach a finding about that and said it was clear to them that Mr Thraxton was not a man of honesty and integrity, as he tried to allege.  Neither do we think there is any mileage whatsoever that only an absolute fool would have filled in his time-sheet in this way deliberately.  We think it was perfectly feasible for Mr Thraxton to believe that his time-sheet would not have been so carefully checked in the office.  We cannot see this as any logical argument in support of the Applicant's case.  

	They make this very important finding:

		"33.	We think that a thorough and objective investigation was made by the respondents, their procedures were impeccable, and the disciplinary hearing and the internal appeal were conducted in a proper manner, and the applicant had a fair hearing on both occasions."

Those are the findings of fact.

	From those findings of fact, Mr Thraxton has appealed to us.  At first there were a number of grounds of appeal but eventually it simply amounts to this:  there is no complaint in the appeal concerning the disciplinary hearing or the preliminary enquiry by Mr Bowles but it is complained that Mr Meadows went off and obtained these details from the other managers and never put them to Mr Thraxton because, it is said, he should have done that and if he had done Mr Thraxton would have wished to explain to Mr Meadows that, although he had been employed by the company, and had been dismissed, there was no question of any dishonesty.  Whatever the responsibility was, there was no question of dishonesty or anything of that sort on that occasion and he was, therefore, deprived of his right, in effect, to mitigate what had come to light as a result of his own conduct in inviting Mr Meadows to pay attention to his long and blameless record, which led Mr Meadows to make these enquiries.

	There are several comments to be made on that.  The first is that, of course, although it was perfectly well known to Mr Thraxton that Mr Meadows had made these enquiries, this was not put forward as part of his case to the Tribunal, so far as one can see.  It is not to be found in his IT1 or anywhere in the decision of the Tribunal or in their summary of the submissions which were made by Mr McQuade.  Nor, indeed, does there appear to have been any response when Mr Meadows, the personnel manager, wrote saying how he dealt with that particular matter.  In those circumstances, it is very hard to see how the matter can now become a ground of appeal to us.  It would have been perfectly open to Mr Thraxton, through his advocate, to complain of that if that had been a matter which affected his mind and gave him a sense of unfairness and he could have invited the Industrial Tribunal to consider that as an important matter, arising out of the appeal. 

	Another consideration which is very important is that the right issue for the Tribunal was to consider the fairness of the dismissal; and the dismissal had taken place about a fortnight before Mr Meadows had heard the appeal.  Concerning that, they were satisfied that the procedure was impeccable.  But a third answer is that they considered not only that but also, of course, the evidence of Mr Meadows, which was given to them, and the events surrounding the appeal.  They found that, too, impeccable.  That is a finding of fact by the Tribunal.  They accepted Mr Meadows' evidence and Mr Meadows' evidence was that he had already made up his mind after all he heard that Mr Thraxton should be dismissed and that what he learned from his colleagues did not affect his position about that at all.  All those are answers to this contention.  

	It does appear, with very great respect, that all other contentions having been abandoned, this one contention is quite simply not maintainable.  It is an averment of fact that the appeal hearing was not conducted fairly, for the reasons given, but it appears not to have been a contention which was ever made before and the question whether the appeal hearing was conducted fairly was a question of fact for the Industrial Tribunal.

	We cannot find any point of law here and the only point which is raised appears to us to be one which is not open to Mr Thraxton for the short and simple reason that it was not taken before the Industrial Tribunal or, indeed, anywhere else.  The way in which it is put now, indeed, is not envisaged in any way even in the appeal or the amended appeal which we have.  Mr Thraxton having put in an appeal which does not raise this point on 11 March 1993, sent the notice of 10 June 1994, much more recently, asking whether this could be treated, please, as an amendment to the notice of appeal and it was put there:

		"... please regard this letter as amended Notice of Appeal so that the same should read now that the ground of Appeal is that the Tribunal should not have had before it the references made at the Respondents' Disciplinary Hearing of the Appellant's previous dismissal from the employment of the Respondents nor the reasons for the same as such would have been unfairly prejudicial against the Appellant."

- the short answer to which is that Mr Thraxton himself had compelled Mr Meadows to consider this submission, which was made on his behalf by his union representative.  Mr Meadows had, indeed, considered it.  Mr Thraxton had invited the Tribunal to consider Mr Meadows' conduct at the appeal hearing.  That could not fairly be considered without this very matter which is now being pressed on us; that is to say, the conduct of Mr Meadows in seeking to enlighten himself on the previous history.  That had to be in front of the Tribunal.  

	Put like that it had to fail and it is only apparently in the last few days that the employers, the Respondents, were eventually given notice that the true point is that Mr Meadows, having made these enquiries, should have returned and put them to Mr Thraxton, so that he could deal with them.

	It does appear to us that for perhaps six or seven reasons it is perfectly impossible for this appeal to succeed and therefore we have no alternative to dismissing it.