Waller v Bass (North) Charrington [1993] UKEAT 573_92_1205

EAT
Waller v Bass (North) Charrington
[1993] UKEAT 573_92_1205 · 1993-05-12

JUDGE HAGUE QC :

This is the Preliminary Hearing of an appeal by Mrs Waller against the decision of an Industrial Tribunal sitting at Hull entered on the register on 29 June 1992.Mrs Waller was a barmaid at the County Hotel, Immingham, which has been described in the evidence and in the Tribunal's findings as a "boozer", a working pub near the docks, peopled by seamen of many races and nationalities. From that, it appears to be a fairly down-market establishment. Mrs Waller was dismissed in November 1991 and made a claim against her employers Bass (North) Charrington for unfair dismissal. The Industrial Tribunal dismissed her claim, and it is against that decision that the appeal is brought.It is important at the outset to refer to the powers of this Appeal Tribunal. Under section 136(1) of The Employment Protection (Consolidation) Act 1978 an appeal lies to the Tribunal:

"on a question of law arising from any decision"

of an Industrial Tribunal. There is thus an appeal only on a point of law, and this Appeal Tribunal's powers are limited to questions of law. Parliament has decided, and we are bound by the Act, that there is no appeal on a question of fact. Furthermore, in an unfair dismissal case under section 57(3) of the 1978 Act, the Tribunal is given a fairly wide discretionary power to determine whether, the dismissal was fair or unfair, having regard to equity and the substantial merits of the case. That is a matter which again Parliament has left to the Industrial Tribunal and we are not entitled to substitute our views as to what was fair or unfair for that of the Industrial Tribunal. We can only interfere if the Tribunal has gone wrong in law by considering the wrong question, failing to apply particularly the statutory provisions correctly, taking into account matters which they should not have taken into account and matters of that kind.We turn now from those preliminary remarks to the facts of this case. At the relevant time the County Hotel was being managed by a relief manager, Mrs Dobbs. She was there on Monday 11 November in the evening. Mrs Waller had previous to that injured her arm and had to be off work. She had to produce medical certificates and when she was fit to return to work she was obliged to let the management know. The Tribunal found that she did not send in a sick-note and she did not get in touch with the management of the County Hotel but she just presented herself at the Hotel on Monday 11 November. By that time, the Tribunal found, Mrs Dobbs had arranged for some other person to do duty that evening behind the bar and so Mrs Waller's presence was not required. There was then, according to the findings of the Industrial Tribunal, an altercation. What they find in paragraph 3(g) of their Reasons is that Mrs Waller shouted at Mrs Dobbs the words which may have been "Stick your fucking job up your arse" or may have been "Stick your Monday job up your arse". It really does not matter which form of words was used, as the Tribunal found.The Tribunal then found that after that Mrs Dobbs suspended Mrs Waller from duty and that she subsequently reported the matter to Mr Curtis who was the resident manager and was due back later that week. On the following night (Tuesday) Mrs Waller came to the Hotel, and there was a problem which arose as regards a customer who had been in the habit apparently of sweeping the car park and getting some free beer for his services. There was some argument about that but the Tribunal found it had nothing to do with why the applicant was dismissed. In due course Mr Curtis became involved and he took the decision to dismiss Mrs Waller. The Tribunal find as a fact that that happened on 30 November. There was then an internal appeal, but nothing turns on that.In making its findings of fact and coming to its decision, the Tribunal,heard evidence from a number of persons including of course Mrs Dobbs and another barmaid called Mrs Strachan. The Tribunal also had before it a written statement by a customer at the bar on the Monday night, one Mr Coyne. Mr Coyne's statement which was in the form of a letter, supported Mrs Waller's version of what had occurred. However, her version conflicted with the version given by Mrs Dobbs and Mrs Strachan and it is quite clear from the decision of the Tribunal that the Tribunal preferred the evidence of the latter persons and did not accept the evidence of Mrs Waller when it conflicted with that evidence.Having recited all those facts the Industrial Tribunal then found in paragraph 4 of their decision:
"We are satisfied that Mrs Waller did abuse in round and crude terms Mrs Dobbs and under the procedure of the respondents it is treated as misconduct, therefore, it is conduct falling within Section 57. It is for us to decide fairness of dismissal according to equity and the substantial merits of the case."
They accepted that there might be two views about that but they considered that the Applicant was fairly dismissed.It seems to us that all the matters set out in the Industrial Tribunal's decision are matters of fact, or matters falling within the discretionary powers conferred on Industrial Tribunals as regards which there is no appeal to this Tribunal for the reasons we have already stated at the beginning of this decision.Mrs Waller has not appeared or been represented before us. She has, however, written to the Tribunal a very careful and detailed letter in which she sets out with great clarity her observations and complaints about the Industrial Tribunal's decision. She was not represented, but appeared in person before the Tribunal and they expressed the view that she had done very well in representing herself.We will briefly go through the six points she makes in her letter. The first point is that she says she was first suspended from work not on the Monday but on the Tuesday, that is on 12 November 1991. That was a question of fact for the Tribunal. In her second point she says that Mrs Strachan, on whose evidence the Tribunal of course relied, was working in the public bar while she was talking to Mr Coyne and that she did not address any remarks to Mrs Strachan or Mrs Dobbs who was some little distance away. Again, that is a pure question of fact as to what happened on that evening and raises no question of law. Her third point concerns what happened on Tuesday 12 November. We do not consider that that is of any importance, because the Tribunal have found that what happened on that occasion was not a contributory cause of her dismissal. Her fourth point concerns the persons present on the Monday and Tuesday nights. We do not think this takes the matter any further, and once again marks only matters of fact. Mrs Waller's fifth point deals with the reasons why she did not ask one or two other people who were there on the Tuesday night to produce evidence before the Tribunal. Again we think that really has no bearing on the matter and is a matter purely of fact. Her sixth point is that she does not think the Tribunal took into account the sort of pub the County Hotel is. She makes the point that language which might not be acceptable in some places might well have been thought acceptable in the County Hotel at Immingham. That was clearly a matter of fact. The Tribunal knew full well what sort of pub it was and that was a matter for their judgment under section 57(3). The decision of the Tribunal on that is really final and there is no misdirection of law in it.Mrs Waller winds up her letter by saying:
"These points are the most glaring examples of many details, some less important, which I felt the Tribunal did not pay attention to. Although I tried very hard to emphasise their significance. Where, in the decision, other peoples word was believed rather than mine, evidence could easily have been checked by simple question and answer (eg the days of the week worked by Mrs Strachan)."
It is clear her complaints are only in regard to questions of fact and in particular the evidence which was accepted by the Tribunal and the evidence which was rejected by the Tribunal.There is one other point we should briefly refer to, although it is not referred to in Mrs Waller's letter. There is that there is a suggestion in her Grounds of Appeal that the actual dismissal did not take place on 30th but on a previous date and particular reliance was placed on an envelope which is dated 29 November which enclosed a copy of her P45. From that it was sought to be alleged that the decision to dismiss must have been taken on 29 November. We really cannot think this makes any difference, but in any event there is not any mention at all in the Tribunal's decision of that particular point. Once again we think that is clearly only a point of fact, and not a matter on which this Tribunal is entitled to interfere.For these reasons in our judgment there is no point of law on which this appeal can be based and we must therefore dismiss the appeal.