Appeal No.	 EAT/47/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 April 1999

Before
HIS HONOUR JUDGE H J BYRT QC
MISS A MACKIE OBE
MRS T A MARSLAND

LORELEI LEISURE LTD	APPELLANTS

MR G BURN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR M GRIFFIN
(Company Secretary
Lorelei Leisure Ltd
Ty Zaria
Park Road
Penarth
CF64 3BD	

	JUDGE BYRT QC:	This is a preliminary hearing in an appeal against a decision, promulgated on 3rd November 1998, of an Employment Tribunal sitting at Cardiff, when they held that the employee, Mr Burn had been unfairly dismissed. The employers, Lorelei Leisure Ltd, now appeal.

	The facts of the case are that Mr Michael Griffin and son, Simon, are directors of the appellant Company, a business, which primarily sells pizza products, at an address in Kingsway, Swansea. They had employed Mr Burns since 1992 until the date of his summary dismissal on 10th April 1998. During that time Mr Burns rose to the position of manager of the shop. In that capacity Mr Burns had day-to-day responsibility for running that shop. According to Mr Burns’ evidence, his duties included checking out the till printout against the money in the till each day, but did not include checking the receipts against order dockets recording the various sales transactions. From time to time dockets were missing. I think Mr Burns himself says that this was discovered at least once a week and he would from time to time be taken to task about that. The Company’s evidence was that checking the till receipts against dockets was Mr Burns’ responsibility. 

	The fact is, and the tribunal said so in their extended reasons, the dockets were collected by Mr Griffin (we are not sure whether that was Mr Michael Griffin or Mr Simon Griffin) each week. Though they were usually not checked, the impression the staff had was that they were. 

	Mr Michael Griffin said that the Company had traded at a lost since 1991, when first the Company had been set up. By February 1998 the financial situation was sufficiently serious for Mr Simon Griffin to carry out an internal audit of all the transactions between March and February 1998. He has told us it was a thorough going audit embracing something like 10,000 docket examinations. The result was that discrepancies were found. As a result, Mr Burns was told on 10th March that the directors of the Company were not satisfied with the way he was running the business, discrepancies had been found, and he was then to go on paid leave for two weeks whilst the directors considered the restructuring of the management of the Company.

	On 24th March was suspended. On 31st March Mr Burns wrote to the Company asking for a disciplinary hearing. On 3rd April the directors wrote to Mr Burns telling him that in February there was a consistent pattern of discrepancies and the loss amounted to £345.08 and invited him to a meeting in the shop to see the documents and to offer an explanation for these discrepancies.

	On 6th April Mr Burns met with Simon Griffin, the son, and he anticipated in advance that this was the disciplinary hearing he had been asking for. So he took along a witness to support him and perhaps to have a say. At that meeting the witness was refused participation. According to Mr Burns’ evidence, he was told that this was not a disciplinary meeting, but merely an informal chat. Mr Burns declined to check through the dockets to see whether there were discrepancies as Simon Griffin was contending. He said that he would wait until the disciplinary hearing before he gave his explanation.

	On 10th April Mr Burns’ employment was terminated without any further reference back to him or any further meeting taking place. The reason given was that the February discrepancies of £345.08 has been discovered, and as a result the directors had lost their confidence in his ability to run the Company.

	The appellants’ contention is that Mr Burns had neglected his duties, had failed to reconcile the dockets against the receipts and, in any event, he had been paid enough during his suspension to compensate him for any losses he might have suffered.

	Mr Burns says that it was not his duty to reconcile the dockets with the takings, that he had been unfairly dismissed and there had been no disciplinary hearing either.

	The finding of the tribunal was that the reason for the dismissal was conduct, that was the failure to reconcile the dockets with receipts. The tribunal found that the appellants had adequately investigated the paperwork. Mr Simon Griffin has emphasised the extent of the internal audit and says that the tribunal failed to appreciate the extent and thoroughness of that work. In any event, one of the findings of the tribunal was that, so far as the paperwork was concerned, there had been an adequate investigation. However, the tribunal latched on to the fact that there had been a dismissal without a disciplinary hearing, and therefore Mr Burns had been deprived of the opportunity of giving his explanation. As a result, they concluded that the investigation which should have taken place in this case was incomplete.

	The tribunal then went through the other tests which had to be applied for unfair dismissal. They said that the appellants undoubtedly had a belief that Mr Burns was guilty of the offence with which they charged him, but they came to the conclusion that that belief was not reasonable because it had been formed without giving Mr Burns the opportunity of giving his explanation for the discrepancies which had been made manifest. In the circumstances, they concluded that to dismiss an employee in those circumstances without giving him the opportunity of a disciplinary hearing, without giving him the opportunity of an explanation, was an unreasonable response.

	Mr Simon Griffin has appeared before us today. Essentially the gravemen of what he has said is that it was a tragedy he had not been available at the tribunal hearing to give evidence. It is apparent he has a job, and I have no doubt a responsible job, in London. His ability to get down to Cardiff to attend to matters relating to the business or indeed to attend a tribunal hearing, obviously is limited and restricted. In consequence, he instructed or advised his father about all the relevant matters, and when the matter came on for hearing before the tribunal, it was left to his father to state what happened at the meeting between Mr Burns and Mr Simon Griffin. Not surprisingly, Mr Michael Griffin found himself at a serious disadvantage in attempting to do so. He could only relay what was being said by Simon his son, and of course that was not amenable to being tested in cross-examination by Mr Burns or by the tribunal. Mr Simon Griffin has sought to say that it was wrong for the Tribunal to come to a decision without hearing his evidence. If they thought it might be relevant, they should have adjourned the case so as to enable him to attend. Their failure to do so, amounted to a breach of the rules of natural justice.

	I am afraid that this is a submission which is based upon a total misconception of the way in which proceedings in any court of law in this country proceed. It is assumed that, once an appointed day for a hearing has been given, the parties will turn up with the appropriate witnesses to support their case in order that it can be disposed of once and for all on the appointed day. To say that, at a particular stage, there is an obligation on the tribunal to call for witnesses and grant an adjournment so as to enable them to attend is a complete misunderstanding. It is one of the cardinal principles about procedures that the court does not have a right to say to the parties who they should call, and in what order; that is always a matter which is left to the parties, even where they are litigants in person. 

	We have considered the decision of the tribunal. We are not surprised having regard to the evidence that was available to them that they came to the decision that they did. We also take the view that it was not their fault no adjournment was asked for by Mr Michael Griffin or anybody else, so that Mr Simon Griffin could attend to give evidence himself. Accordingly, it is our view that the appellant Company must take the consequences.

	We are not here to disturb any findings of fact of the tribunal. Our function is to review the case to see whether the tribunal is guilty in some way of an error of law. The only error of law Mr Simon Griffin has put before us is that there has been a breach in the rules of natural justice. That is something that we have rejected. In the circumstances, we do not think there is an arguable point of law here to go forward to a full hearing. Accordingly this appeal must be dismissed at this stage.