Appeal No. EAT/831/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 25 October 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR L D COWAN

	MR W MORRIS

MR N SCOTT	APPELLANT

ROYAL MAIL LETTERS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR 	ON BEHALF OF THE 	APPELLANT

	JUDGE HULL QC:	We have all considered the papers in this case and Mr Scott has written to us to say that unhappily he cannot attend and asked us to consider matters raised by him in his absence and to decide the case in his absence.  He appeals to us against a finding of the Industrial Tribunal sitting at Sheffield under the chairmanship of Mr Williams with two industrial members on 15 June 1994, Full Reasons being given on 23 July.  He was employed by Royal Mail Letters, as they are now known, at the main sorting office at Sheffield at Pond Street and he was employed in the Registered Letter enclosure, as it is known, where he had the responsible work of dealing with valuable parcels.

	An incident arose just before Christmas last year when he was involved in an altercation.  He had asked for help, his work being arduous.  The supervisor decided that he should not or could not have help with what he did.  That made him very upset and there was some unfortunate language used which led to an altercation with his immediate superior, his line manager, a Mrs Clark.  

	What happened, according to Mrs Clark (and her evidence was accepted) was that Mr Scott, having lost his temper, not merely used some very foul language but actually threw his postman's badge at her.  It is quite a heavy object.  It struck her in the face.  Mercifully, she was not seriously injured but she was, she said, injured.  There was as a result a disciplinary hearing.  He was charged with gross misconduct in his bad language and his assault on his manager.  Mr Bates, the Senior Shift Manager, held a disciplinary hearing and it was decided that Mr Scott should be dismissed for gross misconduct.  

	There was an appeal to a Mr Appleyard, the Divisional Appeals Manager, in accordance with the detailed rule book for discipline; and that appeal was dismissed.  On these occasions Mr Scott was represented by his trade union representative, a different representative on the two occasions.  

	Then he applied to the Industrial Tribunal complaining of unfair dismissal and seeking reinstatement.  The Industrial Tribunal asked themselves the correct questions, they asked themselves whether the Respondent went about the dismissal in a fair and reasonable way, with fair and proper procedures.

	They considered whether the dismissal was within the range of reasonable responses of a reasonable employer in the circumstances and they held that it was.  They said foul and abusive language directed at people in authority is not generally acceptable and when that is accompanied by threats of any description, or as in this case by violent behaviour, whether it be malicious or done in temper, it is reasonable for any employer to say it will not be tolerated.  They said that dismissal might be regarded as a harsh decision but that was not the point.  They could not find that there was any unfairness in this dismissal and they therefore dismissed the application by Mr Scott.

	Mr Scott now appeals to us.  He states a number of matters in his Notice of Appeal and in further letters he has written.  He complains about medical evidence not being called which could have been called.  He complains about the absence of certain witnesses.  He complains, and this really is the basis of it:

		"..... it is my belief that the Post Office deliberately deceived the tribunal board in to believing that their decision was reached in a fair and proper way when their only intention was to use this as a convenient way to reduce the size of its staffing level by the cheapest possible way. ....... and never had any intention [he says of the Post Office] of conducting a proper enquiry".

	And therefore, all the other complaints are really ancillary to that.  He complains, among other things, that Mr Bates untruthfully stated that he could not interview more witnesses because of the shift system and he can rebut that and he makes other complaints, but the basis of it is that the Post Office did not conduct the enquiry, which they were under duty to hold of course, or the appeal which they were under a duty to hold in good faith and in a fair and proper manner because they had the motive, and the dishonest motive, of intending to get rid of him at all costs, and therefore of course the whole thing was simply a facade, a pantomime if you like.

	That was precisely, of course, what the Industrial Tribunal was there to decide.  It is for the Industrial Tribunal which hears the witnesses, which sees all the papers, to decide whom to believe; and their first duty, almost, is to decide whether the employer, on whom the burden is to show the reason for the dismissal, has given evidence sincerely and in good faith and is to be believed.  Of course, if the Tribunal does not feel able to believe the employer's witnesses, that is the end of the matter and the unfairness is established by definition.

	Here, the Industrial Tribunal conducted what appears to have been a very thorough enquiry.  They heard all the evidence which was laid before them.  If evidence was not laid before them that is not a matter for which they can be criticised.  Having heard all that they accepted the employers' account of the matter.  It should be said of Mr Scott that, most unhappily, he is suffering from some sort of mental or nervous affliction caused by stress.  He blames his former employers, or at any rate the Manager, for that.  But those are all matters which the Industrial Tribunal is there to decide.

	We are not allowed to go into questions of fact.  Appeal lies to us only on a matter of law and as the Court of Appeal and, indeed, the House of Lords has repeatedly said, we are not here to try facts.  The Industrial Tribunal is an industrial jury and has the sole jurisdiction over facts.  We therefore look to discover whether there is any point of law here with the assistance, of course, of the letters written by Mr Scott.  Having looked at it as carefully as we can and taken into consideration everything that has been said, we cannot find any point of law here.  It appears to us that what Mr Scott is asking us to do is to re-try the matter and take into consideration further matters.  That we cannot do.  In the circumstances therefore, under our Practice Direction, we must dismiss the appeal at this stage and we so order.