Wallington v Fairview New Homes Plc [1994] UKEAT 633_92_1402

EAT

Wallington v Fairview New Homes Plc

[1994] UKEAT 633_92_1402 · 1994-02-14

MR JUSTICE WATERHOUSE : This is an appeal by an employee against a finding that he contributed to his unfair dismissal to the extent of 50%. The Appellant's originating application was heard by a Tribunal sitting at London (North) on 4 June 1992 and the points that arise in relation to the appeal are very short indeed.

The background to the case is that the Appellant was employed as a chauffeur by the Respondent from August 1988 until December 1991, when he was summarily dismissed. He drove as a chauffeur for the managing director, Mr Cope, and performed other driving duties. The circumstances of his dismissal were that on Tuesday, 3 December 1991, he was alleged to have sworn at a female employee, Miss Palazzetti, and made threatening gestures towards her, which upset her. At that time Mr Cope was in Canada and he was informed of the events by another employee, Mrs Papadopoulos, on his return. He was aggrieved about the alleged conduct of the Appellant towards Miss Palazzetti and, in an affidavit which was before the Tribunal, he said:

"I consider that the Applicants behaviour amounted to gross misconduct and I felt that I could make no other decision than to summarily dismiss him."

He said further:

"I believe that even if I had asked the Applicant to attend the offices of the Respondent for the purposes of a disciplinary hearing, he could not have provided me with a satisfactory explanation for his behaviour, particularly as I had already had occasion to warn him that foul language in the offices and on the Respondent's business would not be tolerated."

It is not surprising that, on the basis of that explanation given by the managing director, the decision of the Tribunal was that the Appellant had been dismissed for an admissible reason, namely, on the ground of conduct but that his dismissal had been unfair because of obvious procedural defects.

The issue in the appeal, however, is the Tribunal's finding that the Appellant had contributed to his dismissal and that an appropriate assessment of his fault was 50%. The bare details contained in the Tribunal's findings in relation to that issue were as follows:

"The Tribunal heard the Applicant's evidence that he told Miss Palazzetti on 3 December 1991 that he was sick and that he could not do any more jobs on that day. However, she continued to make appointments for him. He became exasperated. His evidence was that he did not swear at the young lady but swore to himself as he walked out of the room."

In paragraph 7 - and this is the important paragraph - the Tribunal said:

"The Applicant appeared to the members of the Tribunal to be of an excitable nature. On listening to the Applicant's evidence, and on consideration of the affidavits, the Tribunal could well believe that the Appllcant, on that day, did behave in an excitable manner and could well have sworn at Miss Palazzetti. Accordingly, the Tribunal finds that the Appellant contributed to his dismissal and finds that he contributed by 50% and reduces compensation accordingly. The Tribunal finds this as a fact in consideration of the manner in which the Applicant gave his evidence towards the Tribunal."

The history of the appeal is that it came by way of preliminary hearing before a differently constituted Appeal Tribunal on 1 December 1992. On that occasion, having considered the grounds of appeal drafted by the Appellant in person, the decision was that the appeal should go forward to a full hearing but Judge Hicks QC, in giving the short Judgment of the Appeal Tribunal, pointed out to the Appellant that there were only two points upon which he might be able to rely at the full hearing.

The first point related to the admission by the Industrial Tribunal in evidence of three affidavits. The position was that the Respondents did not call any live evidence at the hearing. They relied instead upon three affidavits, that is, affidavits from Mr Cope, and from the two ladies who have already been named. Those affidavits were not presented within the strict terms of Regulation 7(3) of the Industrial Tribunal's Rules of Procedure Regulations 1985 because that requires that any representations in writing for consideration by a Tribunal shall be presented to the Secretary of the Tribunals not less than seven days before the hearing. In this particular case, it appears that the affidavits were lodged only on the eve of the hearing and the Appellant did not receive a copy of them before then. It was necessary, therefore, for the Respondents, through Counsel who appeared on their behalf, to apply for an extension of time under Regulation 12(2)(a) in order that the application to submit representations in writing should be considered.

In the event, the Tribunal did decide to give leave for the three affidavits to be lodged and for them to be relied upon as evidence on behalf of the Respondents. The point that Judge Hicks QC made at the preliminary hearing of this appeal was that it did not appear that the Tribunal below had considered fully whether it was right in their discretion to extend the time for making the application. They appear to have decided the matter simply by referring to the provisions of Rule 7(3) and exercising a general discretion in the matter on the basis that it was appropriate for the Tribunal to consider the evidence, bearing in mind that the Appellant had received full notice of the ambit of the case against him in extensive particulars served by the Respondents as part of their appearance in the case. Those particulars, extending to 11 paragraphs, were contained in a document called the "Grounds for resisting the Application", which had been served on 7 February 1992.

Although the point indicated by Judge Hicks QC was, of course, arguable on the hearing of the full appeal, it is clear that the Industrial Tribunal were mainly concerned, quite properly, with the question of prejudice to the Appellant when deciding whether or not to admit the evidence. There was no additional prejudice to the Appellant because of the delay in making the application for the affidavit evidence to be admitted. On the general question whether or not it was appropriate for the Respondents to rely on affidavit evidence alone, however, the view of this Appeal Tribunal is that it was obviously unsatisfactory for a case involving disputed allegations of fact to be decided on the basis of oral evidence from one party and documentary evidence only from the other. Nevertheless, the Respondents were entitled to make the application that they did and it is impossible for this Appeal Tribunal to say that there was an improper exercise of the discretion of the Tribunal below in deciding to admit the evidence.

The second and more important ground of appeal suggested in the Judgment of Judge Hicks QC was that the wording of the findings by the Industrial Tribunal in relation to the issue of contributory fault was such that it appeared that they had failed to apply the correct standard of proof on the issue. The particular words to which objection was taken were the references to the fact that the Tribunal "could well believe" that the Appellant did behave in an excitable manner and "could well" have sworn at Miss Palazzetti. As a matter of literal interpretation, it is clear that that is the language of possibility, apart from the words "did behave", and not the language of probability, which is the correct standard of proof to apply when deciding matters of primary fact in civil litigation. It is true that the Tribunal, after making their assessment of the degree of fault, went on to say:

The Tribunal finds this as a fact in consideration of the manner in which the Applicant gave his evidence towards the Tribunal."

But it is by no means clear that that finding of fact relates to anything beyond the assessment of 50% contributory fault.

It has been unnecessary on the full hearing of the appeal for the Appellant himself to say anything of substance by way of elaboration of this particular ground of appeal. He points out that he gave the only swon oral testimony before the Tribunal in denying that he swore at Miss Palazzetti and that the Tribunal made no finding one way or the other about the allegations by Mr Cope in his affidavit of previous incidents of swearing giving rise to warnings in the past.

We have had the advantage of seeing the Chairman's notes of the appellant's evidence about the matter. He admitted that he had shouted at the material time and there was a reference to hollering and hooting on another occasion but he specifically denied swearing at either of the two women employees. The only admission that he made in the course of cross examination that is directly relevant was as follows:

"I was shouting at Rochelle 'Don't take any orders for me I am going home sick, can't you understand?' I don't walk around with my hand in my pocket. I was shouting at her. I have a very loud voice and can bellow.

The whole company is terrified of doing anything wrong for Mr Cope. The two girls are lying in their affidavits. I used the word 'fucking' as I went out of the door. I said 'I don't fucking believe this' and walked out of the door. I used to swear in the chauffeur's room. The only time I have ever sworn in front of Mrs Papadopoulos or Rochelle was joking in the chauffeur's room. If I was looking at you and swore you would know I was swearing at you."

Without going into unnecessary detail, the case for the Appellant was that he had simply sworn to himself, virtually under his breath, on leaving the room and that there had been no swearing at Rochelle.

Having regard to the history of the matter and, in particular, the absence of live evidence from the Respondents, we have some sympathy with the Tribunal in expressing their findings, particularly in paragraph 7 of the statement of reasons, in the way that they did, using the language of possibility. Mr Dennis, on behalf of the Respondents, has argued to us strenuously and attractively, that we should not be pedantic in construing the statement of reasons. He suggests that we should look at the evidence as disclosed by the notes of evidence and the extent of the admissions made by the Appellant. We should then look at paragraph 7 as a whole, giving due weight to the last sentence, which refers to a finding of fact. He submits that, adopting that approach, it would not do any violence to the language of the reasons to accept that the Tribunal understood that they must make primary findings of fact on the balance of probability before assessing the degree of contributory fault and that that is the process that they followed.

Attractive though that argument has been, we have still been left with a feeling of real uncertainty as to the exact basis of the finding of 50% contributory fault by the Tribunal. We are unable to say with confidence that the correct burden of proof was applied, particularly having regard to the fact that the Respondents' case was on affidavit only. It may well be that, in those circumstances, the Tribunal felt that they could not go further, in making positive findings, than to say that they "could well believe" that the Appellant did behave in an excitable manner and "could well" have sworn at Miss Palazzetti.

Faced with that ambiguity in the findings, it would be wrong for us to substitute some alternative finding, such as a finding in favour of the Appellant on the issue of contributory fault, on the material before us. It seems to us that it would be wrong also to accept Mr Dennis's argument as to the interpretation of the statement of reasons and we must reluctantly send the decision back on the issue of contributory fault for consideration by a newly-constituted Tribunal. In reaching our conclusion we have taken into account the very sparse nature of what purport to be findings by the original Industrial Tribunal and the absence of any reference to allegations about other occasions when the Appellant is alleged to have sworn.

Before parting with the case, we must stress the difficulty of deciding issues of fact of this kind if one party relies wholly upon affidavit evidence. We have been told the reason why Mr Cope decided not to present oral evidence before the Tribunal below but we are not impressed by that reason. It may well be that both parties at the rehearing will be able to call oral evidence so that the newly constituted Tribunal will be in a better position to reach firm conclusions in the disputed issues of fact.

The appeal is accordingly allowed. The finding of unfair dismissal stands but the finding of contributory fault is quashed and that issue is remitted for rehearing by a freshly constituted Tribunal.