Papadakis v Mermaid Inn Ltd [1994] UKEAT 759_94_3011

EAT
Papadakis v Mermaid Inn Ltd
[1994] UKEAT 759_94_3011 · 1994-11-30
MR JUSTICE HOLLAND: We have before us an appeal from a decision of a district tribunal sitting at Ashford on 10 June 1994.On that day the Tribunal had an application before it made by Mr Papadakis on his own behalf, which application raised, as the Tribunal found, two issues. Those issues were, first, whether there had been some improper deduction from the wages due to him so that there was a sum properly due and owing. The second issue before them related to the dismissal by the Respondents of the Applicant, which dismissal was said to be a dismissal on the grounds of the assertion of a statutory right.The findings of the Tribunal were as follows.

(a) of the reasons it reads:

"The applicant began his employment as a silver service waiter with the Mermaid Inn at Rye on 11 February 1994. He was interviewed by Mr Shrubsole the Restaurant Manager and his contract of employment, which was sent to him with his first week's wages, was silent as to the terms of actual amounts to be paid. However it was verbally agreed that the applicant would earn a basic salary of £120.00 per week and live in the hotel with all his food included. In addition to this every bill submitted in the restaurant for food and drink had included on it a 10% mark up as a commission or tip which was shared between the restaurant manager, the two waiters, the casual staff and the kitchen.
b) At the end of each week the 10% commission was added up by Mr Shrubsole and then distributed it to the staff according to how hard they worked and how much they deserved it. The Tribunal had before it evidence of Mr Shrubsole's working out which was counter-signed by Mr Pinwill which showed for the week ending 20 February 1994 the applicant received £35.00, the week ending 27 February 1994 the applicant received £40.00 and the week ending 6 March 1994 the applicant received £35.00 of the total commission which was approximately £200.00 each week at that time....e) Mr Pinwill refused to let the applicant look through all the bills and as he had explained to the applicant at the job interview that the applicant would share in such of the commission as was decided by Mr Shrubsole and it was of not concern of the applicant to look through the confidential records of the restaurant."The final fact dealing with this particular issue was that there had been a dismissal on 13 March and following the dismissal:
"Mr. Pinwill gave the applicant £50.00 which was to represent the last week's tips for the week ending 13 March 1944."
The final observation on this one issue was :
"Mr Pinwill had worked at the Mermaid Inn for 20 years and a system of distributing commission had always been the same."
Turning to paragraph 6 of the reasons, the Tribunal found that the applicant was paid his proper share of the commission and that there was no deduction made from his wages and that his claim pursuant to the Wages Act 1986 failed and was dismissed.That was how the Tribunal dealt with the first of the issues that it perceived to be raised by the application.Turning to the second of the issues, that issue had been first raised by the Applicant himself in his application in these terms:
"I was employed as a silver service waiter at the Mermaid Inn from 11th February 1994. It was agreed that I would receive a basic wage of £120 plus commission of 10% of all purchases made by non resident customers. On 9 March 1994 I wrote to the restaurant manager and complained that I was not receiving the commission as agreed - I asked if he would allow me to check the bills from the date I started to work out how much I was owed. On 13th March 1994 I was dismissed - I believe that the reason for dismissal was my allegation that the employer had made an illegal deduction from wages. The only commission I received from the employer was a one off payment of £50. This must have been significantly less than the 10% commission that was agreed.
I believe that I was unfairly dismissed for asserting a statutory right (ie, the right not to have illegal deductions made). I am also owed a considerable sum in unpaid commission."The relevant statutory provision is s.60A Employment Protection (Consolidation) Act 1978, which provides, so far as relevant:
"(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee -
...(b) alleged that the employer had infringed a right of his which is a relevant statutory right."The Tribunal, having reviewed all the evidence in the matter and made these further relevant findings. It said that:
"3 f) Mr Pinwill had been hearing stories of threatening behaviour by the applicant and he heard of an incident involving one of the casual waiters on 11 March. It was about 10.30 p.m. on a Friday evening 11 March when the applicant poured a glass of cold water down the back of Mr Distin who is 17 years old. The applicant said `That will cool you down or I will take you outside and punch your head off'. This attack was unprovoked.
g) On Monday 12 March Mr Pinwill called the applicant to see him with Mr Shrubsole and he tried to understand what the applicant's grievance was. He listened to the applicant for about an hour and at the end of the interview he dismissed him for threatening behaviour to the staff."On the basis of those findings of fact, the Tribunal recognized that if the Applicant had been able to establish that the dismissal had been for alleging that there had been an infringement of a relevant statutory right, then there would have been a viable claim for compensation for unfair dismissal notwithstanding that Mr Papadakis had not worked for two years for the Respondents but, having made that recognition, the Tribunal dealt with it in paragraph 5 in these terms:
"The Tribunal find that the applicant was dismissed for gross misconduct in that his behaviour was threatening and menacing and intolerable to the respondents and the other members of staff. We do not find that he was dismissed as he claims because of the allegations that he was making against his employer."
Turning to the role of this Employment Appeal Tribunal, it is governed by s.136(1) of the same 1978 Act which reads:
"An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, ... (e) this Act."
Mr Papadakis, who said everything possible in pursuance of his appeal, contends that there is here a matter of law for the consideration of this Tribunal and that is that, as he alleges, the Industrial Tribunal reached a decision which was perverse, that is, it was a decision which no reasonable Tribunal, properly directed, could arrive at in the light of the evidence presented before it.For our purposes, in order to rule upon that submission, we have considered very carefully the reasons set out by the Industrial Tribunal as justifying the decision that was reached. What emerges from those reasons, was that there was before that Tribunal a very strong issue of fact. On the one hand, Mr Papadakis was contending the facts that was summarized in his application. On the other side, those facts were being strongly disputed by Mr Pinwill, the company director of the Respondents, who was indeed the representative for them at the hearing. They were further disputed by two other witnesses before the Tribunal, that is, Mr Shrubsole, the restaurant manager and the young man, Adrian Distin, who was the waiter involved in the incident of 11 March.How should a reasonable Tribunal approach that sort of conflict? What this Tribunal did, was that, as they record in paragraph 3, they heard the evidence of the parties, they observed their demeanour in the witness box and, in the result, they reached a decision that wherever there was a conflict between the evidence of Mr Papadakis and the evidence in opposition, they preferred the evidence in opposition.We would emphasize that we have no role other than to review the way in which that Industrial Tribunal proceeded. We find ourselves quite unable to say that that Tribunal proceeded in a way in which no reasonable tribunal would proceed. Any reasonable tribunal would have dealt with the problem in exactly the same way that this Tribunal dealt with it, that is, by listening to the evidence, observing the demeanour of the witnesses and making the best decision they could as to which witness they preferred. That is what they did and it is on that basis that they reached their decision.Thus it is that we are quite unable to say the decision they arrived at was so perverse that this Tribunal should allow an appeal upon that ground.The issues in this case were classically issues for the Tribunal who had the opportunity to hear the witnesses, to listen to what they said and to make a decision on the basis of that evidence as to what had happened during the short period of employment that the Applicant had with the Respondents.In those circumstances, notwithstanding the care with which this matter has been presented to us, we find ourselves driven to dismiss this appeal.