Nott v Odedra & Anor [1993] UKEAT 114_92_1207

EAT

Nott v Odedra & Anor

[1993] UKEAT 114_92_1207 · 1993-07-12

MR JUSTICE KNOX: This is an appeal by Mrs Nott from a decision of the Industrial Tribunal sitting at Birmingham on the 10th December 1991 in which they unanimously decided that her application failed and was dismissed.

The application was for unfair dismissal and the background to it was that Mrs Nott was employed by the Respondents to the application, two gentlemen called Odedra, at a nursing home called the George Leonard Rest Home. She was paid £139 a week net, £150 a week gross.

There was a series of events on the 22nd February 1991. It was Mrs Nott's case that she was dismissed in the course of a telephone conversation when she complained that she had not been paid, as she should have been, on that Friday. Her case was that this failure to pay her on time had been happening for several weeks and that she had had to wait until Sunday or Monday before receiving her wages. She also claimed that there was something that amounted to constructive dismissal of her by the way in which she was dealt with when she went round the same day to the store, which was run by the Messrs Odedra, and had a conversation that degenerated into an argument. This was at a supermarket on the Bristol Road in Selly Oak. On that occasion she signed a document which, on its face, amounted to a resignation of her position. She claimed that this was not a voluntary resignation but something that she was compelled to do by duress.

The Industrial Tribunal had Counsel on both sides before it, an advantage that we have not had because there has been no appearance before us by Mrs Nott or on her behalf, and the Industrial Tribunal posed for itself four questions:

1.Was Mrs Nott constructively dismissed, either by the failure to pay her her wages on the due date, or by the actions of the Respondents which culminated in her resignation?

2.Was she dismissed over the telephone on that 22nd February 1991?

3.Was she dismissed at the supermarket owned by the Respondents on that same evening?

4.Was she under duress when she signed her resignation letter?

Those are all issues of fact and there is no doubt at all that there was a great deal of conflict on the evidence. The Industrial Tribunal, at paragraph 4, in particular said this:

"We have considered each in turn" [that is to say all the evidence verbal and documentary, challenged and unchallenged] "and the weight to be attached to each statement given on oath, the bearing of the witness and the circumstances admitted or proved AND ALL IN ALL and where there is conflict, which is almost everywhere, we accept the respondents' evidence and reject the applicant's evidence."

and then they go on to make the findings of fact which were that there was a failure to pay her on the due date but that when one looked at the circumstances of the case that did not amount to a fundamental breach going to the root of the contract, or showing that the employer had no longer any intention thereafter to honour the contract. They rejected, as a matter of fact, the evidence about the telephone call and came to the conclusion that there was no dismissal on that occasion. Equally, they came to the conclusion that the resignation was a genuine resignation, they say:

"We have considered `heat of the moment', but she had her friend, Mr Sheldon, telling her not to sign it, not to write it out, but even with that advice strongly put to her she still went on and resigned."

and finally they also rejected, on the facts, the constructive dismissal claim on the basis of loss of trust and confidence.

This Tribunal has a very limited jurisdiction so far as these matters are concerned. We are only empowered to deal with questions or issues of law that arise and this decision of the Industrial Tribunal seems to us to be essentially a question of fact and as that passage which I read from the Industrial Tribunal's decision shows, on the facts, the Industrial Tribunal did not accept the Appellant, Mrs Nott's, version of the facts.

That this is a question of fact is effectively revealed by Mrs Nott's Notice of Appeal because it says this:

"The Appeal is made on the following question of law; (a)Whether there was any or any sufficient evidence upon which the Tribunal could reasonably make certain findings of fact upon which its finding that the dismissal was not unfair or that it was not constructive dismissal depended namely, on certain findings of fact contained in paragraph 5 of the decision. (b)Whether upon such findings of fact of the Tribunal reasonably made, a reasonable Tribunal could have found that the dismissal was not unfair or was not constructive dismissal."

It seems to us that that reveals, although it is described as a question of law, that the question is essentially one, whether there was enough evidence at the hearing for the Tribunal to make the conclusions that it did. That is a matter for the Tribunal to make up its mind as a matter of fact and on that basis it seems to us that this Tribunal has no jurisdiction to allow this appeal which will therefore be dismissed.