Appeal No. EAT/874/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10th November 1995

	Before

	HIS HONOUR JUDGE HULL Q.C.

	MRS P TURNER

	MISS S M WILSON

MR B KALADAGI	APPELLANT

CESTQUILL LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR HASHIM REZA
(of Counsel)
Hartley Linfoot & Whitlam
3 St Peter's Close
Sheffield
S1 2EJ

For the Respondents	MR P CAPE
(of Counsel)
Wansbrough Willey Hargrave
285-289 Glossop Road
Sheffield
S10 2HB

	JUDGE HULL Q.C.:   This is an appeal to us by Mr Basavaraj Kaladagi against a decision of the Industrial Tribunal sitting at Sheffield on 22nd July 1994 under the Chairmanship of Mr David. That Tribunal sat to try the complaint of Mr Kaladagi that he had been unfairly dismissed and he also made a complaint under the Wages Act. The complaint was made on 1st October 1993, and the applicant referred in his complaint, his IT1 as it is called, to events which had occurred during the previous two years when he said he had been employed and then dismissed by the respondents who were his employers.

	I must indicate what the nature of the disputes are in a moment, but in that application to the Industrial Tribunal, Mr Kaladagi said that he had been employed by the respondents, and that his employment had begun on 2nd July 1991 and ended on 2nd August 1993. He filled in box 10 and went onto another page concerning the nature of his complaint and the full details that were asked for, he said:

		"On 2nd August 1993 my Solicitors received a letter from Solicitors acting for the Respondent Company which indicated that my employment had been terminated. I have not yet received my P45."

	We asked Mr Reza today for the appellant, whether he could show us the letter, we have been shown a good many letters, there is a very thick pair of bundles with our papers, but he was not able to show us the letter in question. 

	The respondents, the employers in their IT3 as it is called, their answer which was put in on 26th November 1993 said as follows: "Was the applicant dismissed?" answer, "No". "Are the dates of employment given by the applicant correct?" "If `NO', please give the correct dates, [they said "NO"], "Began on 2nd July 1991 [that was common ground] Ended on 23rd March 1993". They too put in a long statement by way of particulars of their case. They say amongst other things, having suggested that the applicant had resigned, had abandoned his employment with them, in paragraph 10:

		"... the Respondents were not happy with the Applicant's performance of his duties in early 1993, leading up to the Applicant's departure from West Garth [that was a house in Sheffield where he had a flat] and his employment on the 23rd March 1993. By letter dated 6th April 1993, the Respondents wrote to the Applicant setting out their concerns as to his failure to perform his duties satisfactorily. At no time after 23rd March 1993 did the Applicant report for work with the Respondents."

	In paragraph 13 they say:

		"It is denied that the Applicant's employment ended on 2nd August 1993 by virtue of a letter to the Respondent's Solicitors from the Applicant's Solicitors. The effective date of termination of the Applicant's employment was the 23rd March 1993, when the Applicant voluntarily failed to attend for work and abandoned occupation of the accommodation provided for him by the Respondents at West Garth. ..."

So that was clear enough, he had left his work and resigned and those were the circumstances.

	I should explain that the applicant is a close relation, at any rate by adoption, of a gentleman called Mr Taghavinia, who is evidentially a important figure in Iran. The company itself, Cestquill Ltd, is apparently owned and controlled by Mr Taghavinia. Its business is the purchase of steel and other products in this country and their export to Iran. Mr Kaladagi has apparently been treated as a son by Mr Taghavinia, and it is really a relationship by adoption. Mr Maleki, who is apparently the manager of the respondents, or was at the material time, although there is some doubt and difficulty about this, was Mr Taghavinia's step-son so it is said, and a lady who comes into the story to a small extent, who worked for them, was also apparently a relation by adoption. It is not quite the ordinary case. First of all, all these people I have mentioned were in some sense or another, expatriates, whether on a long-term or short-term basis, and all had fairly close ties to one another, which is an important fact to bear in mind no doubt, if, as we are not, any court or tribunal is trying the facts of any case which involves them, concerning their various dealings with each other.

	At any rate, that was the position when the matter came before the Industrial Tribunal. There had been correspondence, I will refer to that or parts of that, shortly. But the applicant was saying that he had been dismissed on 2nd August 1993 and the respondents were saying "you were never dismissed, you resigned."

	Each party was represented. Mr Cape who appears before us today for the respondents, appeared for them before the Industrial Tribunal. The Tribunal decided to try a preliminary issue of whether Mr Kaladagi had indeed done two years service, necessary of course under Section 64 of the Act for him to bring a complaint. They would enquire into that as a preliminary issue.

	The applicant was called. I should say that the correspondence which I am going to refer to did show some remarkable changes of front. We are not entitled to reach findings of fact, but it does appear that there was a good deal of back-tracking and tactical play going on in the writing of these various letters. On the one hand the employers were exceedingly reluctant to admit that they had dismissed the applicant. The applicant, apparently, was not going to say at this stage that he had been dismissed; his case eventually was that he had not been dismissed till later in the year. But it was in those circumstances that the applicant was called. There is a note of the evidence which he gave, taken by the Chairman of course. He told the Tribunal, according to the Chairman's note, that he had started his employment on 2nd July 1991; there was some dispute, but the Chairman ruled that 2nd July 1991 must be taken as the commencement date, it was the date in both the two documents I have referred to. The Tribunal was prevailed on to look at, "without prejudice", correspondence; of course they were quite entitled to look at "without prejudice", correspondence if each of the parties waived the privilege, and it appears that something like that took place. They looked at it, of course quite rightly, on the basis that they were well aware that it was without prejudice correspondence, all sorts of things get said in without prejudice correspondence, and they were looking at it for the purpose of their then enquiry.

	Mr Kaladagi having been sworn, gave evidence; I am not going to go right through it, he told the Tribunal about various unhappy incidents. He described how he had been married in 1992 and his wife had come to this country. He said that they lived in this house in Sheffield, they had a small flat or room there, it does not sound at all comfortable. Then his wife was asked out for a meal.

		"I asked Mr Maleki if I would take my wife out to see her relations. He said I could not go. He took my wife instead. He left me at West Garth. I went to pick her up at 9.30 pm. Her friend said what are you - a husband? [Which one understands to be an enquiry whether he was a man or a mouse]. I wrote a letter the next day. I wrote the letter R16. Mr Taghavinia was the boss. He was in Iran. He had said I could leave the house. Mr Maleki said that I could not. I said that I was going to leave and go to Chesterfield."
		"On 23 March my wife and I went to Chesterfield for a telephone call from India. I was not allowed to take calls at the office. Mr Maleki agreed that we could go to Chesterfield at 8.00 o'clock and be back by 10.00 o'clock. I phoned Mr Maleki from Chesterfield to say that we were going to London to see the High Commissioner. He slammed down the phone. I went to London. I returned on 23 March at 9.00 pm. I wanted to enter West Garth. It was locked on the inside. I phoned Miss Taghavinia. [She is of course a kinswoman of Mr Taghavinia whom I have referred to, his step-daughter] I said I wanted to get in. She refused to give me a key. She said it was with her brother Mr Maleki. They refused again. I dropped my keys through the letter box and phoned a friend who took me to a Hunters Bar bed and breakfast."

		"I went back to Chesterfield [he told a story about what had happened] I phoned the office. Miss Taghavinia was there. She said that Mr Maleki had said I was not allowed to return. I went to the office in the car. My wife was not allowed in. I told Mr Maleki why we had gone to London. I said I will return to work tomorrow on 25 March. [and then he said later on] Later on 25 March I went back with a community member [a Mr Chandran apparently] to West Garth. Miss Taghavinia was there but Mr Maleki was not there. We had to wait for him. We waited for 11/2 hours. Mr Maleki said my work had finished. The community worker Mr Chandran said where is my P45. Mr Maleki said "Our accountants are doing it and will send it to you later". I left West Garth and returned to Chesterfield."

		"I waited for Mr Taghavinia's further instructions. ..."

	Then in paragraph 6 having set out all these ways in which Mr Maleki was dominating his existence and saying what he should and should not do, he said:

		"I contend that Mr Maleki has no power over my employment. Mr Taghavinia was my employer. On 25 March I had no money I was completely broke and depressed and knackered. That was after 17 years with Mr Taghavinia."

On that view which he was now putting forward he has based a submission to us that there was no evidence before the Tribunal that Mr Maleki truly had any authority, whether in the company or in particular to dismiss Mr Kaladagi.

	He gave some more history of the matter and he referred to the correspondence. He said that there was a document which shows that he thought he was still employed.:

		"I never resigned."

He said. So that was his evidence.

	Mr Cape then made a submission which we had at first thought, and certainly I had at first thought, came as a surprise to the applicant and his advisor; namely, that the evidence plainly showed that there had been a dismissal on 25th March 1993. That was the subject of submissions to the Tribunal.

	The Tribunal then decided the matter, their decision starts at page 9 of our bundle. The Industrial Tribunal set out the history of the matter substantially in accordance with what Mr Kaladagi had told them. They set out in paragraph 4:

		"Although there has been some argument in this case as to whether or not Mr Maleki had authority over the applicant it is clear from the evidence and from the correspondence that he did and we are satisfied that the applicant regarded him as his superior."

They go on later in the same paragraph, having set out the history which I have referred to:

		"Mr Maleki said that applicant's "work was finished" and asked the applicant to hand over his office keys which he did. Mr Chandran then asked for the applicant's P45 and for notice pay. Mr Maleki said that the company accountants were dealing with it and that it would be sent later."

They referred shortly to one or two of the letters, and they said:

		"7.		In our view the applicant, on his own evidence supported by the correspondence up to and including 28 April was clearly dismissed on 25 March 1993. It seems to us that the words used by Mr Maleki can have no other reasonable interpretation."

They accepted Mr Cape's submission that if indeed the contract of employment was at an end, nothing said in without prejudice correspondence, so to speak, could breathe life into it. So that was their decision.

	When we look at the correspondence, a number of letters were referred to. The first letter is a letter from the company's then solicitors, Bindman & Partners to the Department of Employment; a highly circumstantial letter dealing with various matters. That of course was because of a matter which I should have mentioned, Mr Kaladagi had been in difficulties in staying in the country. It was suggested by the Authorities that he was not entitled to remain and that made a very powerful reason for him to wish to obtain employment with the respondents, and it was necessary for Bindman & Partners to write on his behalf to the Department of Employment, and on behalf of the company to point out that this was highly responsible work and he was required for it. But then there was a letter at page 7 dated 6th April 1993 from the employers, written by Mr Maleki.

		"Dear Mr Kaladagi,

		We are most concerned that you have been absent without notice from work since Tuesday March 23 1993."

	If the evidence, which the Tribunal accepted, and which was given by Mr Kaladagi, was correct that was a most insincere observation to start with.

		"It was made evident by your various statements that you may no longer wish to be employed by our company. Furthermore that the free accommodation provided in return for caretaking of the property known as "Westgarth" would no longer be required by yourself. This obviously causes a significant problem for us, as based on your agreement that you would take on this responsibility, we had made no other arrangements in this regard.

		We regret to inform you that due to your deteriorating level of attention to the position and responsibility that you had undertaken with our company, this letter serves as notice that should you not make yourself available for work by Tuesday 13 April 1993, provide good reason for your absenteeism, and assure us that there will be an immediate and considerable improvement in your attention to the work you have undertaken, we will have no alternative but to seriously reconsider your position within the company. If you are unable to attend work, please contact us either in person, in writing, or by telephone, advising us of your reasons."

Well if the evidence given by Mr Kaladagi was right that whole letter reeked of insincerity, it was obviously a tactical letter.

	Mr Kaladagi replied on 12th April 1993:

		"I deny the first statement of the letter because neither I left my job nor have I been absent from work without notice. You ordered me on 23rd March 1993 that not to enter the office and further on 25th March you ordered me in front of Mr Chandran not to report to work and your accountant was preparing the P45 form, and as soon as he completes it I will receive the same and you further asked me to hand over the office keys which I was holding. The keys were returned to you in front of Mr Chandran which implies that I will be on Leave with Pay until I receive the legal notice or P45 form."

It is fairly clear to a careful reader that insincerity might not be a monopoly of one side. However, he goes on:

		"After having discussed with Dr Kuruwatti you said to him that you have no power or authority to take any decision about my work terms and conditions, but however after having discussed the matter with your stepfather who is my employer, you were to inform him about my work terms and conditions. I awaiting for my employers decisions and neither have I received notice nor a P45 form."

That was saying, I suppose, "you have no authority to take any of these steps". A point which might, one would have thought, have been taken at the time and not at this rather late stage.

	Another letter which was underlined for our benefit was a letter by John Howell & Co, solicitors instructed by Mr Kaladagi on 28th April 1993 at page 12. They set out:

		"We are aware of the correspondence which has passed between yourselves and our client since he was told by you on 23rd March 1993 not to enter the office and on 25th March not to report to work.

		Our client is willing to return to work on the following terms:

		[They set out terms]

		Alternatively, our client will look to you for compensation for the premature termination of his contract with you."

Here the solicitors appear to be saying that the contract is at an end, but he would return to work with you on new terms, although Mr Reza says in substance they were what had been the position before. "And in the alternative we look to you for compensation for premature termination of his contract with you." That seems to be saying quite plainly he was dismissed. I am not going to go right through this, there is another document, a witness statement to which our attention was invited by Mr Kaladagi made on 19th April 1993 and given to Margaret Finch who is apparently a lady employed by his solicitors. That statement shows that the evidence which he gave at the hearing can be, to say the least of it, no surprise to those advising him. Amongst other things, he sets out his case very much as he told the Industrial Tribunal. He told them in this statement, which was apparently disclosed and was an open document therefore:

		"My immediate boss at that time was not in country. [That is apparently the senior gentleman I have referred to] He had gone to Iran where he still is. In his absence his step-son [Mr Maleki] was running the show. This is Hooman Maleki. He said that I couldn't go to London and that I should bring the car back. ... He said moreover that I was not allowed to come back again into the office and that I was not allowed to enter the house. He banged the phone down on me." [He said a little later]

		"[Mr Chandran] came with us to a meeting with Hooman Maleki on 25th March in an attempt to negotiate a solution. On that occasion Mr Maleki said "Raj's employment with the company is finished". I was asked to hand over my keys which I did. Mr Chandran asked for my P45 and for notice pay. Mr Maleki said the accountant was dealing with it but I have heard nothing since."

[On the next page]

		"I am aware that Mr Maleki contacted a friend called Dr Kuruwatti and discussed various options. Dr Kuruwatti told me afterwards that Mr Maleki had come to the conclusion that he has no authority to decide on what steps to take but will have to discuss the matter with his step-father."

[Dealing with this later development in the correspondence]

		"When Mr Maleki received my letter of the 12th April he telephoned me. I said I was ready to work on new terms and conditions, namely that I should be paid £15000 a year, [that of course foreshadows what was said in the solicitor's letter]."

	These matters were all referred to by the Industrial Tribunal. The Industrial Tribunal looked at such of the correspondence as their attention was invited to, and they held that it was quite plain that he had been dismissed on 25th March 1993. We ask why should they not do so? They had heard the evidence of the applicant the burden was on him to prove the matter. He had said in terms, it would seem, that his employment was ended on this occasion. If any confirmation was needed by either party they had only got to look at the witness statement to which I have referred. 

	When one looks at the letters of course it is true that anybody might be misled, to say the least of it. It might well be that the Tribunal, looking at these letters, would feel able to say that the letters written at any rate by one party or the other were sincere documents which set out a case which showed that there was some misunderstanding of this evidence, so that they should enquire further. They should not accede to a submission at this stage, they should be in doubt. They might or might not do that. But on the face of it the matter was plain, and the most likely view was that the letters would not assist further, because they were clearly tactical letters. That seems the most likely view, of course it is not up to us to decide on matters like that at all.

	We say what on earth is wrong with this decision? The answer is supplied of course by Mr Reza with characteristic skill, if I may say so. He makes a number of points. He sets out the key findings of fact. He says that it is quite obvious that the Industrial Tribunal were in error in their approach to the correspondence. He says that the correspondence does not, as the Tribunal indicated, support the case that he was dismissed. To which the short answer is that depends upon what you make of this correspondence. But when you look at page 5 of Mr Reza's argument, he says in terms at paragraph 11:

		"It is implicit that for the Industrial Tribunal to have been entitled to come to the conclusion that the Appellant was dismissed on 25th March 1993 that there had to be some evidence which showed:

		(i)		that Mr Maleki was an employee "superior" to the Appellant; [About that, he says in paragraph 12:]

		The Chairman's notes of evidence confirm:

		(a)		there was no evidence that Mr Maleki was an employee "superior" to the Appellant." 

		[That is an ambitious submission]

	It is perfectly clear from the evidence that not merely was the appellant recognising Mr Maleki as a superior, but he was allowing himself to be bullied all over the place by Mr Maleki. We have looked at the statement which was evidently common ground. It has been disclosed and that statement said in terms that Mr Maleki had been left in charge. The Tribunal does not have to note everything that was given to them; if it had been raised as a serious issue that Mr Maleki was not in anyway superior, that indeed the applicant as export manager was at any rate equal to him that would have been at the front of the case; " No authority to dismiss."

	Then (ii) there was no evidence:

		"(ii)		that Mr Maleki had authority to dismiss the Appellant;"

	Quite apart from the presumption that people are behaving lawfully and not unlawfully when they do things, it appears to us that if Mr Maleki is left in charge of the show, whilst Mr Taghavinia is out of the country, it is clear that he had ostensible authority and one would have thought implied authority, even if he did not have express authority, to dismiss. It would be quite quite fruitless for Mr Taghavinia to come back to the country a month or so later and say "Oh my manager had no authority whatever to dismiss an employee". He would be met immediately with the statement "if you leave somebody as manager, he has either implied or ostensible authority at the very least to do what he did."

		"(iii)		that Mr Maleki did dismiss the Appellant on 25th March 1993;"

	So far from that submission, it seems to us that it is the direct contrary, it seems that there is plain evidence which the Tribunal accepted that Mr Maleki did dismiss him.

	Then (iv), there had to be some evidence which showed says Mr Reza:

		"(iv)		that the Appellant and Respondent's conduct after 25th March 1993 was not inconsistent to a dismissal having occurred."

	In other words, it is the duty of any court or tribunal, apparently, if there is the plainest evidence of a dismissal having taken place, to look on and enquire whether there is evidence later of behaviour being consistent, or not inconsistent, with a dismissal having occurred. That we simply reject as a submission. Clearly, if there is evidence which may or may not, in the mind of the court or tribunal, show that a dismissal has taken place, the tribunal will have to look at what follows, and see whether that throws light on it. Whether the parties behaved consistently with it being a dismissal or not. If there is evidence that the parties were in a sudden crisis, the Tribunal may say "it is not safe to rely on the actual words which were used at the time, we must look at all the surrounding circumstances, this may have been a fit of temper." The parties, being in the same family, may frequently have rows perhaps, in which they do not really mean what they say or do not intend it to be taken seriously. Those are all matters which any Industrial Tribunal would most certainly be familiar with. And the cases which illustrate those propositions are very valuable, and most useful illustrations often, but they do not lay down any principle of law. If the parties behave inconsistently after an alleged dismissal or indeed after any other alleged transaction, it may be very useful to look at the evidence of what they did afterwards. The Tribunal looked at the letters, what view they took of them is not perfectly clear, although they do indicate that they were favourable to their decision. If they had gone on at great length they might have analysed the tactical basis which seemed to underlie those letters, but they did not.

	We find, with respect to Mr Reza that the submissions which he makes on behalf of the appellant are very artificial. It appears to us that this Tribunal had a firm grip on the reality of the case. They were entitled to say - we will try this as a preliminary issue - and to accede to a submission. Certainly speaking for myself I was disturbed at first by the suggestion that there was an element of surprise here, that perhaps Mr Chandran had not been called, was not available to give evidence as we were told by Mr Reza, because they were relying on what was said in the respondent's answer; but when you look at what is said in the statement, that argument simply disappears. It was perfectly plain that whatever was said in the IT1, whatever was said in correspondence, the applicant told his own solicitors in terms that he was ostensibly, at any rate, dismissed on this occasion. And whatever passed thereafter the Tribunal would be well entitled to say was so much "smoke screen". 

	However that may be, we can find no reason why this Industrial Tribunal should not have reached the conclusion of fact which they did. They were entitled to do so on the evidence. They were entitled to accede to a submission, although that may be less common in Industrial Tribunals than it might be in a court of law, because of course the Industrial Tribunal is charged with a duty of enquiry. If they were not certain, were not made happy by the evidence they had heard on this important point, they would be well entitled to say - no, we shall go on and make further enquiries and hear what further evidence is available. They did not do that, and they were entitled, if they were content with what they had heard, to take the course which they did.

	In those circumstances we cannot find anything in this appeal. Certainly we cannot find any point of law which could avail Mr Kaladagi. I have made observations concerning this correspondence which may or may not be correct, and which may or may not have been the ones which occurred to the Industrial Tribunal. The vital thing is this, that the Tribunal heard the evidence of Mr Kaladagi and we have not. We cannot say, not having heard Mr Kaladagi, whether his evidence that he was dismissed on 25th March 1993 was convincing, and plain, and to the point. Certainly on paper it looks as if it was, and certainly that was the view which the Industrial Tribunal took of it. They felt that their view was assisted by the correspondence as a whole. In those circumstances, in spite of the, as I say, exceedingly able submissions which were made to us, we say that this appeal has to be dismissed. There is no point of law disclosed to us, and the decision, in our view, from a legal point of view, is a good and valid decision, So the appeal will be dismissed. That is the decision of us all.

	JUDGE HULL Q.C.:   We do not think that this is a case for an order for costs. We sympathise of course with what has been said about the possibility that here a legally aided party is going to secure a benefit, so to speak, or not be ordered to pay costs and may get some substantial relief in one way or another against the employers. That is not really the point. Unless it can be shown that the appeal is frivolous, or vexatious within the meaning of our Rule 34, irrational, we do not have power to award costs and in the circumstances, having heard what has been said by Mr Reza, we are quite satisfied that it cannot be categorised in that way. It was considered by our own Tribunal and leave was given to proceed. In those circumstances it would be quite wrong for us to say that there was anything blameworthy in pursuing the appeal.