Appeal No.	 EAT/764/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 January 1999

Before
HIS HONOUR JUDGE C SMITH QC
MR E HAMMOND OBE
MR D J HODGKINS CB

MS G PEREIRA	APPELLANT

WALTHAM FOREST TENANTS & COMMUNITY 	RESPONDENTS
& RESIDENCE ASSOCIATION

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

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

	JUDGE C SMITH:	This is an ex parte application by Ms Gloria Pereira, who was the Applicant before the Industrial Tribunal, for leave to proceed to a full hearing of her appeal against a decision of an Industrial Tribunal held at Stratford on 18 March 1998 of which extended reasons were sent to the parties on 24 March 1998 whereby the Industrial Tribunal held that they had no jurisdiction to hear the Applicant’s complaint that she had been unfairly dismissed by the Respondents, The Waltham Forest Tenants & Community & Residence Association, on the grounds that at the time of her dismissal she - and another person whose case the Industrial Tribunal considered - were taking part in unofficial industrial action so that she had no right to complain of unfair dismissal by virtue of the loss of her protection prescribed by section 237(1) of TULRA 1992.

	Unfortunately the Applicant today has not appeared before us:  despite every effort being made by the EAT staff to ascertain her whereabouts no contact has been made with her.   However we think it right that we should consider her application and we have, of course, taken into account all the documents contained in the bundle, including her affidavit and her Notice of Appeal, we have taken into account all the documents that she has laid before us.   We have reminded ourselves that she only has to show an arguable ground of appeal to be allowed to proceed to a full hearing on such a ground.

	It is clear from the decision that the Industrial Tribunal dealt with the issue under section 237(1) of TULRA as a preliminary point.   The Industrial Tribunal express their findings relative to the Applicant’s dismissal on 13 June 1996 and the preliminary issue in paragraphs 4 to 6 of their decision.   It appears therefrom that, having considered, amongst other evidence, the Applicant’s witness statement and her oral evidence, the Industrial Tribunal found the following facts:   (1) that the Applicant was the accredited shop steward representing those who worked for the Respondent association;  (2) That on 12 June 1996 there had been an incident at work involving the Respondents’ administrator and a worker, Mr Marlow, who was a member of the Appellant’s union and the Appellant believed that Mr Marlow had been assaulted by the administrator and was determined to do something about it - that was the finding of the Industrial Tribunal;  (3) That on the morning of 13 June 1996 the Applicant went to her place of work but did not enter the building or offer herself for work; the Industrial Tribunal expressed themselves as follows, at paragraph 6:

“On the morning of 13 June 1996, Ms Pereira and Mr Gansell went to their place of work but they did not enter the building or other wise offer themselves for work.   They were assisted by a representative of the relevant branch of the Transport and General Workers Union.   Instead of attending work, the two applicants sought to raise their concerns from the car park outside the respondents’ premises.   What they wanted was the suspension of the administrator.   When that was not conceded, they left the premises to attend a meeting with the branch secretary at other premises.   The result was that neither attended for work at all on that day but they withdrew their labour whilst they took advice to see how the dispute might best be addressed.   Whilst neither considered themselves to be on strike, it cannot be disputed that were both were engaged in unofficial industrial action.   It was unofficial in the sense that the action was neither authorised nor endorsed by the union.   It was industrial action in the sense that the applicants were denying the right of the respondents to their services under the employment contract as a means of bringing pressure to bear to resolve an issue in dispute.”

	It is in our judgment clear from paragraph 6 that the Industrial Tribunal found as a fact that, instead of attending for work at all on 13 June 1996, which the Industrial Tribunal found as a fact she did not, the Applicant withdrew her labour while she took advice from the branch secretary in order to decide how the dispute over the incident between the administrator and Mr Marlow might best be addressed.    Accordingly the Industrial Tribunal held that at the time of the dismissal the Applicant was taking part in unofficial industrial action in that the action was unofficial within section 237(2)(a) of TULRA since it had not been authorised or endorsed by the union and it amounted to industrial action inasmuch as the Applicant was denying the right of the Respondents to her services as an employee under her employment contract as a means of being pressure to bear upon the Respondents to resolve an issue in dispute.  It was on that basis and for those reasons that, after expressing a degree of sympathy for the Applicant, the Industrial Tribunal nevertheless held that she had forfeited her right to complain of unfair dismissal.   

	By an affidavit sworn on 10 August 1998 the Applicant has deposed that she was not, in fact, involved in the industrial action, which she accepts was being undertaken, because she claims she was taking the victim to the police station to report an allegation of assault under instructions from the union branch secretary.   She goes on to contend, in effect, that in so doing she was not absenting herself from work since, she maintains in the affidavit, by 11’o’clock on 13 June 1996 she had in fact completed her working week and would not have been paid for any more time she put in.  

	By letter dated 19 August 1998, on behalf of the Industrial Tribunal, the Chairman, in effect, responded to the Applicant’s affidavit by making reference to paragraphs 11 to 15 of the Applicant’s witness statement, from which we observe that in paragraph 11 the Applicant stated that she informed Mr Guichard, of the Respondents, on 12 June 1996 that she would not be available in the morning.   The Chairman also referred to his notes of answers given by the Applicant in cross examination in which, in addition to saying she did not regard herself as under an obligation to work any hours on 13 June, the Applicant also said that had it not been for the incident involving Mr Marlow she would have worked for half of that day.

	In our judgment it is plain from both the affidavit and, indeed, from the Appellant’s Notice of Appeal that the main argument upon which the Applicant wishes to rely suggests that the Industrial Tribunal either failed to address the issue or acted perversely in finding that she had withdrawn her labour on the basis that she had no obligation to work on the day in question.   In our judgment however, it is beyond argument,  a) that the Industrial Tribunal did find as a fact that she had withdrawn her labour and did therefore address the issue and, b) that there was evidence - not least from the Applicant’s witness statement and from some of the answers she gave in cross-examination to which we have referred above - which entitled the Industrial Tribunal to come to the finding of fact which they did.   We must regard the point now being taken as an impermissible attempt to re-open matters of fact which have already been found against the Applicant by the Industrial Tribunal.

	In addition to the argument we have sought to address above it appears from the Applicant’s Notice of Appeal that she seeks to appeal on the ground that the Industrial Tribunal should have held that the industrial action in which she was involved did not become official until the end of the next working day, within section 237(4).   However it is plain that this qualification only applies to acts which have been repudiated by a union as mentioned in section 21 of TULRA.   It has no application to the present case where the action had never been authorised or endorsed by the union in the first place.   Nor can we see any proper foundation for the argument that it was in some way unfair for the Chairman to require the Applicant to present her evidence first.   In our judgment this was a fair way of proceeding to deal a preliminary issue in all the circumstances.

	Accordingly, for those reasons, we find that the Industrial Tribunal were entitled to reach the conclusion they did on the facts found by them and on their correct interpretation of section 237 of TULRA.   Therefore this application must be dismissed.