Somasundaram v Contract Cleaning & Maintenance Services Ltd [1992] UKEAT 41_91_1311

EAT
Somasundaram v Contract Cleaning & Maintenance Services Ltd
[1992] UKEAT 41_91_1311 · 1992-11-13

JUDGE J HULL QC:

This is an appeal to us from a decision of the Industrial Tribunal chaired by Mrs Hollis - an experienced Chairman - which sat on 7 November 1990 at London South and heard an application by Mr Somasundaram against his former employers, Contract Cleaning and Maintenance Services Ltd. The complaint was of unfair dismissal on 20 July 1990.It is necessary to go into the facts to some extent and for that purpose we refer to the decision. The appeal to this Appeal Tribunal from the Industrial Tribunal is on questions of law only. There can be no review of the facts and accordingly, subject to what is said in this appeal by the appellant, we have to rely on the findings of fact of the Industrial Tribunal itself.Mr Somasundaram was employed in various capacities and rose in the company. He was with a company which became an associated company in 1985 then in 1987 he and his boss, Mr Blasco, moved to the new company (Contract Cleaning and Maintenance Services Ltd). Mr Blasco had been an officer of the previous company and he acquired this new company and Mr Somasundaram was transferred. He started as a security man, became a manager and, apparently, the relations between the two gentlemen were excellent for a long time.There came a time in 1990, according to Mr Blasco, when the company got into financial difficulties; it was discovered that it had been losing money and was not only continuing to lose money but had a cash flow problem, there was an overdraft at the bank and the overdraft was secured on Mr Blasco's home. The situation did not look well and, according to the findings of the Tribunal based on the evidence which they heard, there was a situation in which it was necessary to reduce expenses. They deal with it like this:
"6 The Tribunal is satisfied from the evidence of Mr Blasco the Managing Director that the business suffered financial difficulties from about the beginning of 1990. That has been confirmed by the evidence of Mr Shan the Financial Controller. He was called under a witness order to give evidence for the applicant.
7 By May 1990 the applicant who had heard from Mr Shan that there were financial difficulties and a possibility of redundancies, was looking for other employment. He referred at some stage to being able to obtain employment elsewhere at a very inflated salary. Mr Blasco told him that if he could get such a salary he should go ahead and do so. Towards the end of May Mr Blasco was asked for a reference for the applicant. Mr Blasco had been very friendly with the applicant. He was annoyed. Simultaneously he was contemplating cutting back his costs. He decided to dismiss the applicant as redundant. He wrote to him a letter which is document 5 in the bundle saying that he was making him redundant and wishing him all the best.8 The applicant received that letter and phoned Mr Blasco the following day. He urged upon him that it was all a mistake and said that he was not looking for another job. On the strength of that conversation Mr Blasco agreed to withdraw the dismissal. He was glad that the applicant intended to stay with him. It was confirmed by Mr Blasco in writing on 11 June 1990 that the dismissal was rescinded."There was another incident of the same sort in June, when it was suggested that Mr Somasundaram had written to Enfield Borough Council. Mr Blasco heard of that too; but he was away for a few days and when he got back Mr Somasundaram said that he had not really intended to take the job, that it had only been a joke and the request for a reference should be destroyed. Again the matter was left. The Tribunal then say:
"11 By the middle of July 1990 Mr Blasco on the advice of his accountants and together with Mr Shan decided that cuts would have to be made. The business had turned from profit to loss.
12 A decision was taken to move the business to less expensive premises. All the employees with supervisory responsibilities were considered for possible dismissal. There was a Mr King who was responsible for maintenance plumbing and electricity. He was a high salary earner, some £26,000 a year. He was due to retire in the August 1990. It was decided that when he retired he would not be replaced. It was decided that a Wages Clerk would be dismissed and also a Secretary/Receptionist. It was decided that the applicant would be dismissed rather than the other Contracts Manager a Mr Jeff Holman. Mr Holman dealt not only with the staff like the applicant but he negotiated contracts with clients and was therefore more valuable to the business. There was no alternative employment available to the applicant save a job as Security Guard earning under £8,000 a year. He could have performed the job that he was doing but on a part-time basis.13 Mr Blasco spoke to the applicant by telephone on 17 July. The conversation probably was not very conclusive. Mr Blasco is French and the applicant is Sri Lankan. They did not often meet face-to-face. What was put to the applicant was that he would be made redundant at the end of the month, that he would perhaps be able to return to the respondents in October 1990 if they won a big contract that they were hoping for, that he would be paid all that was due to him and that in addition because of the problems he had with a newly born baby and a young wife who could not speak English that Mr Blasco would make a personal payment to him of £1,000 at the end of August and another £1,000 at the end of September. Mr Blasco would need the applicant's Company car. The applicant had discussions with his wife. He also consulted a solicitor Mr Ratmam who has appeared for him at the Tribunal.14 By 20 July when the applicant again saw Mr Blasco he was in a somewhat different mood. He made it clear that he wanted to hold on to the car, he rejected any question of taking a part-time job which had been suggested on 17 July or was mooted on 20 July. It is difficult to be sure from Mr Blasco's evidence which day it was. The Tribunal is however satisfied that such an offer was made to him and also that of Security Guard which was also of no interest to him. The applicant stressed his wish to retain the car. Mr Blasco wanted it for an employee who was going to take over the applicant's duties on a part-time basis at the end of July 1990. There appears to have been a very nasty row. One of the disadvantages that resulted to the applicant was that after he threatened to sue Mr Blasco for unfair dismissal Mr Blasco withdrew his offer of £2,000. The employment ended if not in tears certainly in acrimony. The applicant was obliged to hand over the car keys and left the building. A letter was sent on 25 July confirming the dismissal for redundancy. Then there was an exchange of letters between the applicant's solicitors and Mr Blasco. These proceedings commenced on 7 August 1990. Wherever there has been any dispute on any substantive matter the Tribunal prefer the evidence of Mr Blasco and Mr Shan to that of the applicant.15 The first matter the Tribunal had to consider was the reason for the dismissal. The Tribunal is satisfied that the reason was redundancy.16 The next matter the Tribunal had to consider is whether having regard to their size and administrative resources the respondents acted reasonably or unreasonably in treating that as a sufficient reason for the dismissal and the Tribunal have to consider that in the light of equity and the substantial merits.17 This is a small business with a very small management structure. The respondents did not give to the applicant much in the way of warning nor was there any consultation. But the Tribunal is satisfied that such warning as could be given was given. The respondents were in a position where they did have to dismiss a senior person and the applicant was really the only one they could dismiss with commercial justification. The respondents had very much in mind that he could take alternative employment with them of a lesser sort which he refused. It seemed in all the circumstances that the respondents acted reasonably and therefore the application alleging unfair dismissal must be dismissed."At the hearing the following matters occurred. Mr Blasco was appearing in person on behalf of the company and the Chairman therefore, as was her duty, took him through his evidence and helped him so far as it was proper to do so. If Mr Somasundaram had not been represented by a solicitor it would have been the Chairman's duty to do likewise for him. Litigants who are in person cannot be left by a Tribunal or Court to try and wend their way through a hearing; quite apart from the waste of time and effort involved with matters which are irrelevant it is essential to justice that the Chairman should make quite sure that the points that ought to be brought out are brought out and that the matter is enquired into as far as possible. Mr Blasco was therefore taken through his evidence by the Chairman and after he had been cross-examined by the solicitor who appeared for the applicant, the Tribunal then went on to consider the evidence on the other side.The applicant was called and gave evidence which differed in many important respects from that of Mr Blasco. Mr Shan was then called on a witness summons and he was there to give evidence for the applicant although he was a member of Mr Blasco's management team. In his evidence Mr Shan said that he was the Financial Controller and that on 20 July he was present at the important meeting between Mr Blasco and Mr Somasundaram. He said:
"...... for some months the Company was in financial problems - occasionally the staff salaries were paid late - so were the suppliers - went through the Accountants - looking to see where the Company was going.
Mr Blasco's house was charged [to secure the debts of the company] - decided to go one by one step by step to look at all the costs - so we thought the rent was the most important - so we found a cheaper office £30,000 cheaper - then we looked at the staff costs - part-time instead of full-time - we don't need Christian [Mr Somasundaram] - the programme - even less postage.On 20 July 1990 - Mr Blasco told me he was going to make Christian redundant - they had a meeting - then he asked me to be presentHe said to Christian he was going to make him redundant - that was when all the trouble started - Christian said he had solicitors - gave the piece of paper - he was threatening - Mr Blasco asked for the keys - then there was all that trouble about the car keys"He then moved on to other matters saying how much Mr Blasco's earnings were and what Mr King earned when he retired.

"..... the girls the Wages Clerks and the Receptionist were made redundant"

Mr Shan went on to give evidence about other people and said:
"...... Mr Blasco has been discussing cash flow problems since January 1990 with me and Mr King.
Mr Blasco decides if the applicant was to be offered other jobs - it is not my job - I have other things to do - finances.All the staff are helping the Company - because of the financial problems - the applicant and I got on well - I brought him to the Company"There was no cross-examination by Mr Blasco. Mr Shan's evidence was called on behalf of Mr Somasundaram and there can be no question of Mr Somasundaram, under our system, inviting the Tribunal not to accept any of that evidence. Every witness who is called before an English Court or Tribunal is called as a witness of truth by the person who calls him and if, as happened on this occasion, in most important respects Mr Shan's evidence differed from Mr Somasundaram's evidence it is not open to Mr Somasundaram, through his solicitor or otherwise, to invite the Tribunal to prefer his own evidence. On the contrary, the effect inevitably must be to cast the greatest doubt on the truthfulness of the evidence of the party who calls such a witness who contradicts, him and to oblige the Tribunal to say whose evidence they prefer. That is the inevitable result and the Tribunal are in the difficult position, contradictory evidence having been called, of asking themselves whether they are to prefer the evidence of Mr Somasundaram or his witness, Mr Shan, whom he puts forward as a witness of truth. Indeed, the embarrassment to Mr Somasundaram and his solicitor is obvious because the Chairman had to warn the solicitor, quite rightly, that he was not to cross-examine his own witness.Something else very important happened at the hearing which is recorded in the Chairman's Notes of Evidence. When Mr Somasundaram was being cross-examined he said:

"I would accept a job with Mr Blasco as a Security Guard at £7,800 per annum."

That was a job which Mr Blasco had told the Tribunal had been offered to him on 20 July and so here was an opportunity for Mr Somasundaram to change his mind and one could hardly criticise him in the circumstances if he had done so. Therefore, the Tribunal adjourned at 3.25 for the parties to talk and Mr Blasco tells us that on that occasion he did offer the job but it was not accepted.The Tribunal waited 15 minutes for the parties to return and when they did return they asked for an adjournment. The Chairman said, on behalf of the Tribunal, that she was not prepared to allow an adjournment. The question of whether or not an adjournment is allowed is one of discretion for any Court or Tribunal. On the one hand every Court that ever sat is aware of the saying "Justice delayed is Justice denied" but on the other hand justice may equally require an opportunity for the parties to consider the matter further and it may be in their interests to do so. However, a long day had been spent on this case and the Tribunal were still hearing evidence at 3.40 pm and therefore a general adjournment was refused but a short adjournment was allowed. At 3.50 pm the Tribunal thought they had had long enough to settle the matter, recalled the parties (who had been unable to reach a settlement) and made their decision.Before we come to the appeal to this Court I mention some matters that are untoward in connection with this appeal. First, Counsel who was retained by Mr Somasundaram was unfortunately taken ill last night and in those circumstances Mr Deans of Counsel has accepted the brief for the appellant and has done everything in his power to put the matter fairly and squarely to us, leaving out nothing, sticking to the point and being as short as possible. We are extremely grateful to Mr Deans for his efforts in a case which on any view is an exceedingly difficult one and which he has had to master at very short notice. It is apparent to us that he has had many difficulties and we wish to express our gratitude to him. The assistance of Counsel is invaluable in a case like this and we feel that we have had every possible assistance from Mr Deans.Another untoward matter is that although it is the duty of the solicitor to make sure that this Appeal Tribunal has all the documents which it should have, that has not been done. Mr Deans, in the course of his argument, wished to refer to documents which were in another bundle of correspondence which we have not seen. In those circumstances, we had to explain to Mr Deans that although we heard what the point was in each case, and listened to him quoting from one document, if we were going to have the documents cited piecemeal it would be necessary for us to look at all of them and we would not be able to continue today if that was so. Mr Deans did not ask us to adjourn so that these documents could be looked at.I must refer to one other matter. We have got certain letters which evidently the solicitors thought we ought to look at and there is a letter of 1 August 1990 which was attached to the application to the Industrial Tribunal. It is a letter from the solicitors who had been acting for the applicant for some months. (Although he has said there was no redundancy situation it is quite apparent that he felt it necessary to consult his solicitors on a number of occasions). We have read the letter and it is a lamentable letter; it is, with all due respect to the writer, a letter such as I have not seen even after seeing thousands upon thousands of solicitors' letters. It shows no professional detachment from the client's case and it involves the writer personally in abuse of Mr Blasco. In addition to matters material to the complaint of unfair dismissal it goes into a number of other matters which are really simple grievances, and it is sarcastic and unpleasant in tone, plainly suggesting before issue is joined at all that Mr Blasco has acted in bad faith throughout. It contains a suggestion, that was repeated at the hearing, whose relevance we cannot see and which to me carries an unpleasant whiff of blackmail. It says:
"Our client has been systematically harassed by Mr Blasco from January this year when our client refused to allow Mr. Blasco to use our client's name to extricate himself from difficult domestic situations.
Our client is indeed surprised that in this day and age of civilisation we could have men of the calibre of your Mr. Blasco who behave autocratically and exploit and abuse others in such scandalous and callous manner."This is not a letter such as a professional man should write and we have no doubt that when it was read by the Tribunal it must have caused some resentment and irritation. That matter, to which I have referred, re-emerged in the course of the hearing when Mr Somasundaram quite gratuitously in the course of his evidence started to make remarks about the private life of Mr Blasco. This, as the Chairman pointed out, was a matter which had never been put to Mr Blasco as it should have been when Mr Blasco was being cross-examined. Mr Somasundaram went on to say that there was a liaison of some sort - a lamentable allegation to make - and that there were arrangements made in which Mr Somasundaram was to help with the deceit which was taking place. This is something which coupled with the letter, must have caused considerable irritation to the members of the Tribunal.These Tribunals are not places where scandalous allegations that are not material can be sprung for the purpose of discrediting people and it is not in the tradition of justice in this country, or I hope in any other country, that this sort of thing should be done. I mention that as a background amongst other matters which may have caused irritation to the members of the Tribunal. For example, their bundle was not numbered properly, the hearing was delayed by the short adjournments mentioned previously and there were some other matters which may have made the Tribunal feel that their task was not being made any easier.We now come to the grounds of appeal; on which we are very grateful to Mr Deans for his exposition. There was an original notice of appeal which was abandoned and replaced by the amended notice of appeal which is a lawyer-like document and goes to the point of the case. The amended notice of appeal contains the grounds which were put to us today by Mr Deans; they cause us the greatest concern and we have taken this case extremely seriously. The amended notice of appeal says that the first question is:
"(a)Whether there was any or any sufficient evidence upon which the Tribunal could reasonably conclude that the Appellant was dismissed as a result of redundancy, and further, whether or not in concluding that the Appellant was dismissed as a result of redundancy, any or any sufficient [account] was taken of S81(2) of the Act."
I have already referred to the evidence which was adduced by the applicant, Mr Somasundaram, of Mr Shan and the Tribunal also heard the evidence of Mr Blasco himself which was tested by cross-examination. Mr Shan undoubtedly corroborated Mr Blasco in the most important points and the Tribunal had to decide what evidence to accept and what to reject; that is their task, not ours. There was ample evidence to justify the Tribunal's conclusion that there was a redundancy situation; money was being lost and had been lost for some time and there was a cash problem.Mr Deans invites our attention to particular parts of the decision and he asks us to look at para 10 and we do. He also asks us to look at the Notes of evidence and he says that in Mr Blasco's evidence it says:
"The business was not doing well - the turnover from 1989 to 30 June 1990 - £440,000 turnover to June 1989 - it had been £417,000. There had been a 10% increase in the turnover.
In 1988/89 we lost £12,477 - in '89/90 we lost £46,245.I was aware of that at the end of June 1990.The overdraft had increased from £15,000 to £30,000 and I asked the Auditors to give me the position at the end of July - the overdraft is secured on my house - the business is mine -

I decided that I had to make some people redundant to reduce costs -

. ...................At the beginning of July 1990 I decided to make the applicant redundant - he would not accept demotion to a Security Guard - I offered him that when I made him redundant in July 1990 - I considered the Security Guard and I also considered the possibility of his being Contracts Manager part-time"Mr Deans says that it is clear that the decision was taken by 13 July and that because the auditors were reporting it did not become apparent until the end of the month that there was a necessity to make anyone redundant. We think that that construction of the situation is only possible by taking that particular extract alone. If one looks at the evidence as a whole it is quite clear that there have been worries since the beginning of the year and the Finance Director, Mr Shan, had, since the beginning of the year, been holding conversations with Mr Blasco about the cash shortage and what should be done about it. Therefore, to say that because the auditors had not yet reported Mr Blasco was not in a position to reach his decision on 13 July and therefore could not have done so fairly and sensibly on the basis of redundancy is, in our view, putting it much too high.It is true that Mr Blasco might have waited until he got the auditors' report but he was in touch in with them and had taken steps such as moving the office, he had already planned to dispense with a post when one of his senior managers retired and was planning other redundancies. We think that on the evidence that was before the Tribunal, there is no substance in that textual criticism.With regard to the averment that there was insufficient evidence to conclude that the appellant was dismissed as a result of redundancy, that is a matter on which the Tribunal heard the evidence of Mr Shan as well as Mr Blasco. The Tribunal had to decide whose evidence it preferred and having decided as it did that wherever the evidence differed between Mr Somasundaram and Mr Blasco and Mr Shan, it preferred the evidence of Mr Blasco and Mr Shan, that involved rejecting the controversial parts of the evidence of Mr Somasundaram. Under S81(2) of the Act it is provided:
"(2) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to- (a).......... (b)the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed, have ceased or diminished or are expected to cease or diminish."
It was a matter for the Tribunal to say whether that question of causation was satisfied. It has been pointed out by one of my colleagues that it is not necessary to establish that the situation has actually arisen, if the situation is expected, that will suffice. It appears to us that there was abundant evidence on which the Tribunal could, depending on the view that they took of that evidence, reach the conclusion which they did.The Notice of appeal goes on:
"(b)Whether any Tribunal properly directing itself could have reached the conclusion that the evidence of one Mr Blasco (for the Respondent) was to be preferred to that of the Appellant, and whether or not any or any sufficient weight was given to the correspondence between the parties in coming to the said conclusion."
The weight to be given to evidence is a matter for the Tribunal and not for us and, in our view, having read all the Chairman's notes of evidence and the Tribunal's decision there is much evidence on which the Tribunal was entitled to prefer Mr Blasco's evidence including that of the only witness to be called by Mr Somasundaram, who corroborated Mr Blasco's evidence in all the important respects.The grounds continue:
"(c)if, which is not admitted, there was a redundancy situation, whether or not the Appellant's dismissal was fair and reasonable in all the circumstances of the case, and whether or not any or any sufficient account was taken of the lack of consultation and S.99 of the Act by the Tribunal.
Mr Deans points out very fairly that here there was no warning, or very little warning, no consultation and no notice (there was pay in lieu of notice). I am quite sure that no Industrial Tribunal would overlook the need for consultation, and warning where it is possible, or would regard the absence of consultation and warning as a matter which it could lightly ignore. Nonetheless, if there is a situation of redundancy and the decision has been taken properly to make a particular person redundant, the absence of consultation and warning will not of itself make the dismissal unfair. Those are important factors to consider when the Tribunal comes to consider the question under S57 of the Act whether the employer has behaved reasonably.This Industrial Tribunal was very conscious of these matters. It had to have regard to them in the light of what had passed before; that Mr Somasundaram was seeking alternative employment by going to two potential employers and Mr Blasco had found requests for references and had been told there was nothing in it. He had also had to say that there would no pay rises this year and he might well have thought in those circumstances he might not be able to keep the services of some of his employees. It appears to us that the Tribunal took all these matters into consideration.These were questions fundamentally of fact for the Tribunal and provided that they directed themselves correctly it is not for us to say that we would have formed a different view of the facts or that we agree with their view of the facts. The Tribunal had the advantage of hearing the witnesses and we have not and Parliament has prohibited us from looking into the facts and entertaining an appeal on facts. We can only say that there was material on which the Tribunal were entitled to reach the conclusion which they did.We now reach the ground which caused us the most concern:
"(d)Whether or not the Tribunal was biased against the Appellant, and the Appellant shall rely on the following in support thereof:- (i)The evidence of the Appellant was rejected without the giving of reasons by the Tribunal."
That, in our view, is no evidence of bias whatever. Any Court or Tribunal having heard the witnesses is entitled to say that it prefers the evidence of one to another. It is not bound to give reasons for that decision, it is sufficient that the Court hears fairly and weighs fairly the evidence of those witnesses. If matters were otherwise, it might be necessary for a Court to say some very hurtful things about the view it takes of certain witnesses; to make remarks which would be taken personally by those who appear in front of it. It is enough, therefore, for them to say which evidence they prefer and this Tribunal clearly did that. The grounds for them to take that view appear to us to be very sound, from what I have said already and particularly the evidence of Mr Shan. There is no evidence whatever of bias, in our view, from that.The grounds in the notice of appeal continue:(ii)The chairperson of the Tribunal interrupted the Appellant's representative thereby preventing the Appellant's case being put fairly and justly."The gentleman who was representing Mr Somasundaram was a solicitor and if he felt that he was not able to put the case because of the frequency of the interruptions then he could and should have said so. He should have asked the Chairman and any other member of the Tribunal who was interrupting to be good enough to allow him to develop the point or cross-examine the witness or whatever it might be without further interruption. One has heard such requests made and I have never known them ignored.This was a Tribunal with three members and if any of the members had thought that the interruptions were untimely and unfair, I have no doubt whatever that one of the members would have so indicated to the Chairman. It is a matter of common observation that Tribunals consisting of three members do not consist of the Chairman and two sleeping partners, they consist of three very active and interested members and we have no doubt the Chairman would have been corrected very quickly, albeit tactfully, if she had behaved unfairly.Furthermore, the advocate has not made any affidavit for us concerning the matter, although there is an affidavit to which I will refer later. Interruptions are properly made by a Court with a view to assisting by cutting out issues that are unnecessary and indicating to an advocate that there are matters which, in the view of the Court, he should devote his attention to; or there may be things which the advocate is saying or doing which appear to the Court to be improper or in some way time-wasting or something of that sort. Courts frequently interrupt and this is frequently welcomed because it makes the advocate's task in many ways much easier. The advocate may feel that the case is being put against him but that is so that he can answer it, and experienced advocates welcome the moment when the Court gives an indication of the way in which its mind is moving. We find from the papers to which we have referred so far no indication that there was any impropriety.Certainly there were matters which may have caused all the members of the Tribunal some irritation, in the way in which the case was conducted and in the letter to which I have referred. Nonetheless, an irritated Court is not a biased Court and the difference is profound. Anyone who has been engaged in litigation knows that from time to time things are said or done which lead to a rebuke or an adverse reaction from the Court and to suggest that because that happens there is evidence of bias is completely unfounded.The Notice of Appeal continues:
"(iii)The Tribunal failed to allow the Appellant sufficient time to settle the matter."
We have already covered this matter. The Tribunal rose for 15 minutes and then for another 10 minutes. Mr Blasco assures us that he repeated the offer which he had already made and which Mr Somasundaram had said that he would accept. It must be a matter of discretion for the Tribunal to say that at this late stage they were not prepared to adjourn the matter. It is going much too far to say that by refusing a further adjournment the Tribunal was showing bias. The Notice of Appeal goes on:
"(iv)The Chairman failed to pay any or any sufficient attention to the summing up of the Appellant's case and was at the time (the Appellant surmises) writing her judgment."
In other words this Tribunal had two Industrial Members sitting there listening to what was being said by the applicant (no complaint whatever is made of them) and the Chairman was writing her notes. If the Chairman had taken no note of the closing she might well have been criticised; if she had paid no thought to the judgment which she would have to give on behalf of herself and her two colleagues then she certainly would be criticised.If the advocate objected to addressing the Tribunal while one of its members was taking a note then he should have said so. He could have said very tactfully "I am sorry madam, but as you are taking a note may I pause for a moment until you have concluded". He did nothing like that and we do not think that this complaint can amount to evidence of bias. We recognise that it can be irritating to address a Tribunal when the Chairman is writing as you speak and normally advocates will wait until the Chairman has finished writing in order to have his undivided attention. This matter was in the advocate's control and it appears that he did none of the things open to him in this situation.Finally, it is said:
"(v)The attitude of the Chairperson was overbearing, interfering, over-powering and generally averse to the Appellant."
The attitude of Chairmen of Tribunals and Judges is not always entirely agreeable and sometimes it can be pejoratively described as overbearing, interfering or overpowering but to say that that is evidence of bias is wrong. If Mr Somasundaram had been in person then he would have been entitled to the same consideration as any other litigant in person but he represented attended by an advocate who apparently had taken some bad points and was guilty of conduct which caused irritation to the Tribunal.An advocate who puts forward a case which does not commend itself to the Tribunal or Court and makes bad points in favour of a client whose evidence is not accepted will always find himself in a difficult position. No advocate is immune from this and it is clear to us that the evidence was taken properly and the arguments were attended to. The written decision of this Tribunal is almost a model of conciseness and clarity and we do not think that the allegation made by Mr Somasundaram can support the suggestions of bias. Courts are very often "hard" on an advocate and that is not bias; it is what is called a "difficult judge" or a "difficult Tribunal" and if it goes on too much the advocate is entitled to ask the Tribunal if they would refrain from interrupting while he develops his point, which may be a difficult one.We now turn to the affidavit, which is an affidavit sworn by the applicant and not the solicitor who appeared for him. The affidavit says:
"I submit that the Industrial Tribunal under the Chairmanship of Mrs Hollis was favourably biased towards the Respondent and adversely biased against me ......."
He says that the Chairman pointed out that the bundle was not correctly numbered - which would have normally attracted, from any experienced advocate, an unqualified apology. In this case the solicitor sought to justify himself and apparently irritated the Chairman, who told him not to argue with her. She was making the point that bundles should be properly numbered, as she was entitled to do. Mr Somasundaram offered to come forward and help her with the documents and it can be understood that the Chairman would not find that a very satisfactory prospect in the circumstances, as she would need to keep and mark her own bundle. We understand her irritation and do not find that in any way indicative of bias.The affidavit then goes on to say that the Tribunal did not pay sufficient attention to the documentary evidence and preferred to accept certain evidence. Those are entirely matters for the Tribunal and not for us. The Tribunal must pay such attention as it thinks right and prefer such evidence as it thinks right. Mr Somasundaram then makes a most abusive reference to Mr Blasco and to his own witness Mr Shan by reference to their religious beliefs saying that they have no moral compunction in uttering falsehoods. If that allegation was made before the Tribunal one can understand it causing irritation to the Tribunal as it is a most unfair point to make.He continues that whilst the Chairman helped Mr Blasco through his evidence she put words into his mouth by describing the letter of 10 August as derogatory. One cannot imagine how that can be evidence of bias. To use the word "derogatory" of that letter is a very mild expression; it was a thoroughly offensive and unpleasant letter.It is then said that the Chairman's behaviour led her (not the Tribunal) to accept blindly whatever was said by Mr Blasco; and this is offensive. If the Tribunal has gone astray so be it, but to say that the Chairman, guided and aided by her two industrial members, blindly accepted what was said by somebody is offensive. He claims that the Chairman was "snappy" and that she threatened to penalise Mr Somasundaram with costs. That is a warning that every Court ought to give to someone who is wasting time and such a warning is fair and proper.The affidavit goes on to make various points and criticises the refusal of an adjournment and criticises the Tribunal for being apathetic and biased. It states:
"(viii) The Tribunal's Chairman was very overbearing and overpowering so much so the other panel members were mere spectators rather than participants. It is true that they did ask a few questions at the tail-end but were not critical in analysing the evidence at all. As a matter of fact none of the Tribunal members took time to read the documentation at all."
There is no evidence to support these allegations against the members of the Tribunal.We do not find anything here which on close examination and with Mr Deans' assistance enables us to find any evidence of bias against this Chairman or this Tribunal. It may very well be from what we have been told that the way in which this case was conducted caused some irritation which was shown from time to time. If this was so then we cannot say that we are surprised, indeed, some of the matters to which I have referred almost certainly would have caused irritation to any Court or Tribunal.We do not think that there is any ground for criticism here. We think that the criticisms are ill founded and that they do not show that this Chairman was biased, or that the whole Tribunal was biased. In those circumstances, although we have considered this matter with the greatest concern and have given it far more time and attention than one would give a case in which such allegations were not raised, nonetheless, in spite of all the matters which have been so capably and economically urged on us by Mr Deans, we are unable to allow this appeal. It appears to us that there is no point of law raised and that the allegation of bias is not made out. The decision was, on its facts, impeccable. We are, therefore, having investigated it as we have, obliged to dismiss the appeal.