Melhuish v John Owen-Ward Partnership [1992] UKEAT 598_91_0911

EAT

Melhuish v John Owen-Ward Partnership

[1992] UKEAT 598_91_0911 · 1992-11-09

MR JUSTICE WOOD (PRESIDENT) : By an Originating Application dated the 13th June 1990, Mr Melhuish alleged that he had been unfairly dismissed by the John Owen-Ward Partnership Ltd. He is an architect and the Company is basically an architectural company involved in various projects for, amongst others, banks.

In his Originating Application he indicated that his gross salary was £25,000 per annum but that he also received other benefits by way of bonus, £2,950 and a profit share.

The respondent Company filed its Notice of Appearance - dated 19th July and signed by Messrs Jaques & Lewis, Solicitors - and in it so far as the remuneration is concerned they indicate that they disagree with the figures given and allege that the average take-home pay was £1,315 per month. That raised an issue in the mind of Mr Melhuish, who sought some further and better particulars of the Notice of Appearance. One of the particulars dealt with the question of his salary. He asked them to verify their method of calculating the figure.

The reply is that they agree that the average monthly take-home pay was £1,441.98. That takes the place therefore of the £1,315 in the Notice of Appearance.

The case was heard by an Industrial Tribunal sitting at London (North) under the Chairmanship of Mr Walker on the 4th, 5th and 6th March 1991. The Applicant appeared in person. The respondent Company was represented by Mr McMullen of Counsel. The unanimous decision of the Tribunal was that Mr Melhuish had been unfairly dismissed by reason of the Respondents' failure to follow a proper redundancy procedure. They held further that he had contributed, by his conduct, to his selection for redundancy by 50%. Then on the basis of Polkey they proceeded to assess the chances of Mr Melhuish not being dismissed for redundancy if the correct procedure had been carried out. The view taken was that there was an 80% chance of him being so selected for dismissal therefore the loss of opportunity was 20%.

After the hearing on the 6th March we are told by Mr Melhuish that there was no indication of the decision to be given by the Industrial Tribunal. He first knew about the decision on 19th April through a decision promulgated on the 18th April. In that decision the Tribunal gave their reasons for the conclusion to which we have already referred. Then in paragraph 15 they deal with the question of compensation. It seems that the calculation of compensation is upon the basis of £1,315 net per month. The Tribunal did not indicate to the parties that they were prepared to hear any argument on the figures if the calculations were not accepted, but by a letter of the 27th April Mr Melhuish wrote to the Tribunal asking them to reconsider paragraph 15 of the Full Reasons. That is the paragraph dealing with the calculation of compensation. He says:

"an incorrect sum for income I have earnt from lecturing has been used.

I should like to apply for a review of that calculation. I enclose copies of my salary slips which which were not previously produced as evidence at the hearing."

then he goes on to deal with his calculation on that basis. Apparently that letter was not received by the Industrial Tribunal.

The next thing that happened was that Mr Melhuish applied for a review of the decision by a letter of the 1st May 1991. In that he raises four grounds for seeking a review. Those grounds were considered by the learned Chairman and he refused to order a review. A review is possible under the Industrial Tribunal Rules paragraph 10 in certain circumstances. It can review on the grounds:

"(a)the decision was wrongly made as a result of an error on the part of the tribunal staff; or (b)a party did not receive notice of the proceedings leading to the decision; or (c)the decision was made in the absence of a party or person entitled to be heard; or (d)new evidence has become available since the conclusion of the hearing to which the decision relates provided that its existence could not have been reasonably known or foreseen; or (e)the interests of justice require such a review."

Each of the grounds put forward were considered by the learned Chairman and rejected. First of all he rejects it because of the alleged conflict of evidence at the hearing and he takes the view that that is essentially a matter for the tribunal at the hearing. Secondly, he indicates that where there are allegations of conflict of evidence and as to status then that decision had already been dealt with in the Reasons. He rejects the application on the basis of new evidence, which he says was available, and in rounding off his reasons he indicates that he can see no error of law in the decision and no grounds for the grant of the Review.

Before us, Mr Melhuish, who has again appeared in person, raises four points.

In the first one he says there were irregularities in the evidence that were not commented upon by the Industrial Tribunal. That phrase "not commented on" has been used by him quite frequently during his submissions. It is important for us to point out that it is not the obligation of an industrial tribunal to deal with each and every point of evidence, it is only necessary in its Reasons to indicate the facts it finds and basically it is helpful to know the witnesses it accepted and did not accept and the broad basis of its finding and its reasoning. It is not a detailed judgment which is to be taken to pieces and dissected. It is important in parenthesis to note also that there is no appeal against the substantive decision of the Industrial Tribunal the only appeal before us is on the refusal to review. So far as there was an issue on the evidence before it, it seems to us reading the Full Reasons, and also the reasoning of the learned Chairman, and indeed looking at the documents to which Mr Melhuish has referred, that there were issues which were decided by the Tribunal. Mr Melhuish points out that many more projects were under his control than those listed and also that the costing reflected adversely on his abilities and it was an improper way of costing. But those were all matters that were before the Tribunal and must have been taken into account when they gave their consideration to the hearing.

The second point which was made to the Tribunal is a suggestion that the accounts put in by the Company are dishonest. He made those points, they were looked at, they were rejected.

The third point he makes is that he was really a Director and not a Senior Assistant Architect and that he, therefore, was held to have had knowledge of problems arising in various projects and that was not a finding as to his knowledge which was fair to him. The question whether or not he was a Director or a Senior Assistant Architect - it was the latter which the Tribunal found - is only material to the knowledge which he had, and he agrees in his submission to us that really it did not affect his knowledge, it was a different question of status maybe, but it did not affect his knowledge and we can see no point in that, nor indeed did the learned Chairman.

Then the last point he takes is this, and this in our judgment is a point of weight. He submits that the calculations in paragraph 15 were not based on the facts which were almost common ground. On the 24th June having received the decision concerning the Review he writes back to the Tribunal saying:

"when can I expect a reply to my letter dated 27th April 1991."

to which we have already referred. He encloses the letter and the documentation and indicates that he encloses duplicates of correspondence together with duplicates of my principal salary slips to show that my true net annual income should have been calculated at £1,470 per month.

So that we have now a number of figures. In the Notice of Appearance £1,315 net per month; in the Further and Better Particulars £1,441.98 per month and in the letter of the 24th June £1,470 per month. It is therefore, quite clearly, common ground between the parties that the figure of £1,315 was erroneous and that any calculation should have been made on a figure other than the £1,315. It is also clear that the letter of 27th April had sought a review on paragraph 15 of the Tribunal's decision. No one would dream of criticising the learned Chairman because the letter of 27th April was not before him when he was considering the letter of the 1st May, otherwise he would have dealt with it and referred to it, but it is equally clear that that letter of the 27th April was sent, there is no suggestion that it was not sent, and that in the letter of the 24th June there is reference to a request for a review as of the 27th April. The reply from the Tribunal, whether or not the learned Chairman saw it or not we do not know, is we understand from Mr Melhuish that this application was out of time. Of course if it had been treated as made at the 27th April it would have been in time. In any event it is quite apparent that from the agreement between the parties, one thing is clear, that is that the calculation is based upon an erroneous figure.

We therefore take the view here that there is something further for the learned Chairman to investigate on this sole issue. It may very well be that the parties can agree on the correct figure in which case the learned Chairman can simply carry out the calculation again. But if it is going to be important to hear evidence then no doubt the learned Chairman will deal with it as he thinks best. In our judgment therefore, we reject the criticisms of the application of the reasons given for the refusal of the Review based on the letter of the 1st May 1991. But it has become apparent that the learned Chairman did not have before him the application which was originally dated the 27th April for a review limited to the question of the calculation in paragraph 15 which seems to be based upon the net monthly figure.

In the circumstances therefore, we would ask him to consider the application for review dated 27th April which related solely to that paragraph 15 of the decision. Technically therefore we reject the appeal against the decision refusing the Review of the 7th June 1991 but we direct that he consider the application for review of paragraph 15 dated 27th April 1991.