Pyramid Holdings Ltd (t/a Supervision) v Wilkins [1995] UKEAT 757_95_0311

EAT
Pyramid Holdings Ltd (t/a Supervision) v Wilkins
[1995] UKEAT 757_95_0311 · 1995-11-03

JUDGE CLARK :

By an Originating Application dated 3rd January 1995, the respondent to this appeal brought claims against the appellant under the Wages Act , and for damages for breach of contract, arising out of the termination of an Agreement in writing made between the parties and dated 26th August 1994 ["the Agreement"].By their Notice of Appearance the appellants denied both the respondents' claims, and themselves counter-claimed for damages for breach of the Agreement.The matter came before a Chairman sitting alone, Mrs T J Mason, at the London (South) Industrial Tribunal on 12th May 1995. The Chairman's reserved decision contained in her extended reasons and dated 19th May 1995 was:(1) to dismiss the respondent's Wages Act claim;

(2) to uphold his claim for breach of contract; and

(3) to dismiss the appellant's counter-claim.Against that decision the appellant now appeals, and we have to decide on a preliminary hearing whether there is an arguable appeal to go to a full hearing of this Appeal Tribunal.The facts as found are that the respondent was a disc jockey and the appellant's were in the business of supplying disc jockeys to discotheques and night clubs. The appellant's managing director and majority shareholder was Mr Chris Bradbury.The parties entered into the Agreement on 26th August 1994 whereby the appellant was to employ the respondent as a disc jockey to work at Discotheque Saba at the Oman Sheraton Hotel, Muscat, and he took up his duties there on 26th September 1994.There were express terms of the Agreement so far as is material, as follows:
"Clause 4 of the Agreement provided;
The Disc Jockey shall execute the reasonable request of Supervision during the course this agreement in connection with the operation of discotheques and shall at all time conduct himself with propriety and honesty and shall use his best endeavours to promote the good name and interests of Supervision.Clause 8 provides:On the last day of the month, SuperVision will pay the Disc Jockey at the rate of £650.00 per month a fee for the number of months worked, such fee being payable gross on the last day of each month.Clause 9:The Disc Jockey be required by SuperVision to work outside the Untied Kingdom and SuperVision will pay reasonable travelling expenses or alternatively will provide return tickets to the venue of the foreign engagements. In the event that the Disc Jockey does not fulfil the whole term of his foreign engagement for any reason, the Disc Jockey's travel expenses shall be his own responsibility"Subject to a proviso which is not relevant.Clause 10:SuperVision shall be entitled to immediately terminate this agreement by notice in writing to the Disc Jockey in the event of any serious or persistent breach of this agreement by the Disc Jockey or if SuperVision is dissatisfied with the Disc Jockey's performance or in the event that a discotheque at which the Disc Jockey is engaged requires SuperVision to replace the Disc Jockey under the terms of any agreement with the owners or operators or the Discotheque. SUCH termination shall be without prejudice to the rights of the parties already arisen."And the agreement was expected to last until 1st January 1995.It seems that the management of the Sheraton Hotel where unhappy with the respondent's performance.They wrote on 1st October 1994 to Mr Bradbury in these terms:
"Dear Chris,
Unfortunately, we are running into little bit of trouble with our new DJ Lewis. [ The Respondent ]- He is not following orders given to him by his supervisors in the Saba Disco.- He is not playing the music mix appropriate for this place.- We have many guest complaints about his music.- He is letting strangers into the DJ cabin and is against our advice in contact with a guest who does not have the best reputation.Please advise your DJ accordingly. It seems he is not listening to us. If the current situation continues, I cannot guarantee you that Lewis will stay until the end of the contract which would force me to seek a DJ somewhere else within Oman until we get a suitable replacement from you."The letter continues, but that does not appear to us to be relevant.That letter was followed by a further letter dated 22nd October 1994 again to Mr Bradbury which reads:
"Please send me urgently the relevant documents for DJ Andy Merritt to enable us to process his visa. A change is absolutely necessary as we are losing out on guests and out clientele is coming to see me to complain about him."
Following that letter, which was sent by telefax, Mr Bradbury decided to terminate the respondents' employment by a letter or fax dated 23rd October 1994. It is headed "Notice of termination of contract" and reads:
"I regret to have to inform you that in spite of my advice and suggestions as to how to turn the situation around in your operational difficulties, further complaints are still coming in, and therefore I am forced to terminate your contract.
As you know, it takes a little time for visas to be processed (for your replacement) but I am expecting your duties to finish around the middle of November - you will be advised of exact dates by Mr Lennkh in due course."After that notice of termination had been given, there was a third letter from the Sheraton Hotel which complained that the behaviour of the respondent was getting worse day by day and it says:
"Yesterday, he was singing and dancing in front of his cabin, with a beer can in his hand, and I don't want to mention how much misbehaviour points he gets for this. Also clients are asking when are you going to change this man."
Having heard the evidence and considered the documents put before her, the Chairman concluded that the respondent terminated the Agreement under the third limb of Clause 10 of the Agreement, namely:
"... in the event that a discotheque at which the Disc Jockey is engaged requires SuperVision to replace the Disc Jockey under the terms of any agreement with the owners or operations or the Discotheque. ..."
Clause 10 further provides that:
"SUCH termination shall be without prejudice to the rights of the parties already arisen."
By the time the respondent finally left Oman on 13th November 1994, he had completed two months work, and was, the Chairman found under clause 8 entitled to two months pay, that is £1,300, it having also been found that no monies had been paid for that period. The Chairman further held that the appellants had failed to prove any breach of contract by the respondent and accordingly the counter-claim for breach of contract was dismissed.Against those findings the appellant appeals, and Mr Uduje, who appears on behalf of the appellant before us, principally argues that the Chairman's finding that the respondent was not in breach of Clause 4, is a perverse finding.We remind ourselves that although we are dealing with a comparatively recent jurisdiction of Industrial Tribunals to deal with contract claims under Section 131 of the 1978 Act, our powers to interfere are limited in the ordinary way under Section 136 to correcting errors of law.It seems to us that the finding complained of is essentially one of fact for the Tribunal. Can it nevertheless arguably be said to be perverse. Mr Uduje points to the letter from the hotel dated 24th October 1994 complaining of the respondent singing and dancing in front of his cabin with a beer can in his hand. However, there is no evidence, so far as we can see, that such an incident occurred before the appellant's decision to terminate the Agreement. Even if the telefax dated 5th April 1995 from Mr Benke to Mr Bradbury was before the Industrial Tribunal, that is unspecific as to dates.Since the thrust of the counter-claim is that the appellant was put the expense of replacing the respondent, we cannot say that the Chairman's finding that the reason for termination was a request from the hotel to replace him, and not a breach of Clause 4 by the respondent, is perverse. And we reach that conclusion having considered Mr Uduje's submission in relation to paragraph 9 of the Chairman's decision, namely that she was wrong to regard 1st October 1994 letter of complaint as irrelevant.In all the circumstances, we think that there is no arguable case to go before a full hearing and the appeal will be dismissed now.