Post Office v Ramkissoon [1993] UKEAT 357_91_2804

EAT
Post Office v Ramkissoon
[1993] UKEAT 357_91_2804 · 1993-03-18
HIS HONOUR JUDGE PEPPITT QC This is an appeal from a decision of the London (South) Industrial Tribunal made on 13th May 1991 the reasons for which were communicated in writing to the parties on 22nd May 1991. The Tribunal found unanimously that the Respondent had been unfairly dismissed by the Appellants but that he had contributed to the dismissal to the extent of 90%. The Appellants appeal against the Tribunal's finding that their dismissal of the Respondent was unfair. There is no cross-appeal by the Respondent from the finding of 90% contribution made against him.The facts can be stated shortly. At the time of his dismissal the Respondent was employed by the Appellants as a Higher Grade Postman. He had been employed by the Respondents for some 23 years. He was aged 55 at the date of the hearing.In July 1990 the Respondent was absent from work suffering from back-ache. His absence was supported by a certificate from his general practitioner dated 12th July 1990 stating that he should refrain from work for two weeks from that date. On 17th July however, at the time when the certificate as completed by his doctor was still in effect the Respondent submitted it to the Appellants with the figure `2' in the phrase `2 weeks' clumsily altered into a `3'. He thereby obtained an extra week's sick leave for which he had obtained no medical certificate and consequently remuneration of £174 to which he was not entitled.When the forgery was discovered the Respondent was interviewed in the presence of his union representative by the Appellants' investigation department. He admitted the offence at once and the only explanation he could offer was that he was then still suffering from back-ache and wanted an extra week off work. There followed a series of stages in the Appellants' disciplinary procedure which culminated in the Respondent's dismissal on 21st September 1990. A subsequent appeal against that dismissal was rejected on 23rd November 1990. It is unnecessary for us to deal in any greater detail with the steps which preceded the Respondent's dismissal because no complaint about them is made by the Respondent and indeed the Tribunal found them to have been beyond criticism.The Tribunal found that the reason for the dismissal was one relating to the Respondent's conduct but that the Appellants had acted unreasonably in treating it as a sufficient reason for dismissing him. In arriving at this conclusion, apparently with `some hesitation', the Tribunal relied upon four principal grounds:(i) the length of the Respondent's service;(ii) his previous clean disciplinary record;(iii) what the Tribunal described as 'too rigid an attitude' displayed towards the Respondent's offence by those investigating it and(iv) the fact that at the time of committing the offence the Respondent was the `victim of some medical problem'. The Tribunal found that the reasonable employer faced with the Respondent's offence in those circumstances would have imposed the penalty of suspended dismissal or demotion. Dismissal was not within the range of responses available to a reasonable employer.Mr Carr on behalf of the Appellants attacked this finding as an example of a Tribunal substituting its own view for that of the employer. He argued that the Respondent was in a position of trust, that he had betrayed that position without offering any satisfactory explanation for doing so and that not to have dismissed him would have created an undesirable precedent which might encourage others to commit similar offences. In the circumstances it was wholly unreasonable for the Tribunal to have found that dismissal was not one of the options open to a reasonable employer.Mr Carr cited to us British Leyland UK Ltd v. Smith [1981] IRLR 91 and a recent decision of the Employment Appeal Tribunal in East Berkshire Health Authority v. Matadeen [1992] ICR 723 . In Smith the Court of Appeal upheld the dismissal by employers of a long-serving employee who had stolen and subsequently altered a road fund licence belonging to his employers and had persistently lied about the incident. In Matadeen it was held at p.738A that:
"Even on factual findings of an industrial tribunal the appeal tribunal can interfere if the members are completely satisfied in the light of their own experience and of the sound practices in the industrial field that the decision is not a 'permissible option' ... a conclusion which offends reason or is one to which no reasonable tribunal could come ... or so very wrong that it just cannot stand ... or so outrageous in its defiance of logic or of accepted standards of industrial relations that no sensible person who had applied his mind to the question and with the necessary experience could have arrived at it?"
Mr Carr argued that the Tribunal's decision satisfied the Matadeen test and that accordingly we could interfere. On the other hand Mr Hansen for the Respondent in the course of a lucid address to us submitted that the Tribunal had asked itself the right questions, had correctly analysed the facts and had reached a conclusion which could not now be challenged.We have considered this case with some anxiety. The Chairman was at the outset disposed to the view that the decision of the Tribunal might well be vulnerable to attack on the Matadeen principle but the other members of the Tribunal, both of whom have had vast experience in the industrial field were wholly convinced that the Tribunal's finding could and should be upheld. They took the view that to dismiss an employee aged 55 with 23 years service and thus to deprive him of his pension rights for an offence such as this which he readily admitted was not an option which a reasonable employer applying the proper principles of industrial relations would regard as available to him. The Respondent was in a position of trust in that he was required in the course of his duties to handle property belonging to members of the public but his breach of that trust involved no such property and was committed at a time when some mitigation was to be found in his continuing back pain. This was a first offence and the Respondent's work record, if not exemplary, was of a reasonable standard. After discussion the Chairman was persuaded that the Tribunal's decision was not one which, applying any of the tests set out above could be regarded as perverse. Accordingly we are unanimously of the view that this appeal should be dismissed.We grant liberty to the parties to apply in respect of any matter which may arise as a result of this judgment.