Greenberg v Carmel College Ltd [1996] UKEAT 351_95_1406

EAT
Greenberg v Carmel College Ltd
[1996] UKEAT 351_95_1406 · 1996-06-14

JUDGE HULL Q.C. :

We have considered what happened in this case. We think that we ought to accept the sworn testimony of Mr Kastner to the effect that when he came to address the tribunal on the matter of compensation, the tribunal indicated that that would be dealt with at a later stage and he therefore said nothing about compensation. As is now quite rightly pointed out, in the note relating to Mr Pawley's submissions on behalf of the college, he said at the end of his address:
"If you are against me there to find the failure to give Rabbi Greenberg an appropriate opportunity to explain his failures I would like you to consider two further matters. [ He referred to Polkey v Dayton ] This is just such a case and therefore the compensation should be reduced by 100%
Alternatively, there is the issue that he contributed to the dismissal and if so to what extent. The failure to respond at all to the letters ... [ He then referred to two letters ]Accordingly I submit that the conduct contributed to the dismissal by 100% so as to reduce the compensatory award by that."Mr Kastner now suggests in his very recent affidavit that the respondents were addressing the tribunal upon a matter which he had been stopped from addressing the tribunal about. The suggestion made by Mr Greenberg is that that is unfair, and we allowed the Notice of Appeal to be amended to raise this point. There are several things to be said about that.First of all the tribunal is not expected to have a perfect procedure, it is expected to have a reasonable and fair procedure. As the Chairman says, he probably would have stopped any advocate who said he wanted to address him on the matter of compensation, but if the advocate had said, I wish to address you not on compensation as such, but on the degree of responsibility, and to say that this is a case where the applicant should not have his compensation reduced at all, or if it is to be reduced then only by a small proportion on the facts as you find them, having addressed the tribunal very fully on the facts; then the tribunal would of course have heard him. The Chairman makes it plain that it is his practice to distinguish between contribution and compensation. More than that, we think that if Mr Kastner felt that there was any injustice at that stage, in that his opponent Mr Pawley had addressed the tribunal on this topic and he had not, there was nothing whatever to stop him standing up at that stage and saying, "I am afraid there must be some misunderstanding, Mr Pawley has addressed you on this and I wanted to address you on this topic." He did not do that, and according to Mr Greenberg (and again, we are not doubting of course what Mr Greenberg says) the tribunal just stood up and retired to consider their decision. They then returned and evidently gave their decision orally, which they later, of course, produced in writing. Again, Mr Kastner, who is a solicitor of the Supreme Court, said nothing at that stage; did not say, as one would expect an advocate to say, "I am sorry Sir, but you seem to have decided something on which I wish to address you, I was stopped from addressing you on that point, and I do want to address you on that." He might then have suggested various courses which might have been taken. One obvious course which might be taken, whether then or within the stipulated time thereafter, I think three weeks, would be to apply for a review of the decision on the basis that it was made without hearing all the arguments on the topic. That was not done.Then an appeal was launched by Mr Greenberg, who of course as a Rabbi is a man of learning and education; there is no reference to it there. Mr Greenberg tells us that that was because his solicitor advised him that he thought there was nothing in that point. It is not for us to say whether the solicitor is right of wrong about that, but that is the position, that it was not raised until the very recent events when Mr Kastner's affidavit was obtained and the application was made to a amend the Notice of Appeal. That application was made on 29th May 1996. We allowed it so that we could hear argument on the matter.It is also true, as Mr Oldham very fairly points out, that all matters of fact which the tribunal had to consider on this issue had been very fully canvassed by the parties in the course of a hearing which went on for three days, and Mr Kastner has been good enough to exhibit to his affidavit his own notes of what he had said. He says he wrote them down immediately after the hearing and they are therefore contemporary notes. It is clear that he not merely addressed all these questions of fact, but submitted arguments about them. To use a lawyers' term, he confesses and avoids certain of them, and explains that they were not matters on which the respondents should be entitled to rely or they were too stale to raise fairly on and so forth. So that again is a perfectly fair point made by Mr Oldham.We have to consider whether through the misunderstanding, and we accept of course that there was some misunderstanding here, there was a genuine injustice which would lead a fair-minded person at the end of the hearing, who knew the facts, to say "No this was not fair, owing to the misunderstanding between Mr Kastner and the tribunal. The applicant was deprived of a real chance to do himself justice by addressing argument to the tribunal."Bearing in mind the factors which we have considered as carefully as we can, we have come to the conclusion that this was not unfairness, properly so called. Not something that vitiated the fairness of the hearing. It was in the nature of a mishap, but we think it was a mishap which led to no injustice, because the tribunal had very fairly in mind, it seems to us, all the issues in the case and whatever had been said to them on this occasion would only have been in the nature of things rhetorical. The tribunal had heard a great deal said in mitigation of any complaints that could be made against Mr Greenberg and why they should not take them into consideration, or should regard them as not of any significance. Notwithstanding all that they said that it would be not just and equitable to give him any compensation whatever. It seems to us that we have no grounds for saying that that was unfair. Therefore that ground of appeal is rejected by us, and that is the decision of us all.

JUDGE HULL Q.C. :

This is an appeal to us by Rabbi Greenberg against a decision of the Industrial Tribunal which sat at Reading under the Chairmanship of Mr Cleugh with two industrial members on 30th September, 25th October and 7th November 1994, which reached conclusions upon his complaint to them that he had been unfairly dismissed by his employers Carmel College Ltd who are the proprietors of the well-known Jewish school of that name, which takes pupils from age 11 to 18 and is located at Wallingford in Oxfordshire.Rabbi Greenberg was employed from 1st September 1982 at the College. I do not need to go into the extent of his duties, but in 1984 he was appointed an Assistant Housemaster, in 1990 he was appointed a Housemaster and in 1992 he was transferred to another house.There had been for a considerable time certain matters of difficulty with the authorities at the school so far as Rabbi Greenberg was concerned. Mr Skelker, the Headmaster who was appointed very shortly after Rabbi Greenberg came to the school, had a number of complaint which he made. (I will refer to those in a little more detail when I refer to the decision). On 7th January 1994 Rabbi Greenberg resigned his position as Housemaster, he received a written ultimatum on 27th January and then on 8th February he was dismissed by the Headmaster with the authority of the Governors.There is a letter of 8th February 1994, which has been put before us by Rabbi Greenberg, who today appears in person to argue his appeal. In that letter the headmaster says, amongst other things:
"I am dismayed to learn that in recent days you criticised the action and decisions of the new Housemaster of Ridgeway House [ that was the house where Rabbi Greenberg had been the Housemaster ] to members of the House. Your criticism of Mr King's decision to move his House office is completely unprofessional and unwarranted and a flagrant breach of your position of trust and responsibility, both as a teacher and as a member of the Carmel community. [ Then the letter goes on ]
This is the fourth occasion in recent weeks when I have been obliged to write to you about your failure to perform your duties properly. Copies of my previous letters are attached. In addition to these breaches of discipline, you have consistently failed properly to perform your duties in connection with the running of the Shabbat meals and Shabbat Services. I have spoken to you on many occasions about the need for you to be punctual for Services and meals on Shabbat and to ensure proper supervision of pupils, both in the Synagogue and in the Dining Room. Despite repeated requests, you have never associated yourself wholeheartedly with either meals or Services. I wrote to you about these matters on the 16th May 1989. Unfortunately you failed to respond appropriately and because the position had deteriorated to such an extent I was obliged to speak to you again about these issues twice in the course of last term.For all these reasons, the Governors have decided your immediate dismissal from the school's employment is justified.I am therefore giving you notice of the termination of your employment immediately. You are requested to vacate the house you occupy at the College by 2nd March 1994. ..."He then makes a proposal for an ex-gratia payment and some matters I do not need to refer to. So that was the dismissal of the Rabbi, a man of religion of course, after something like 12 years service at the school. To look and see what the facts were, we have to look at the decision of the Industrial Tribunal.It is trite to say, but I should say it, as Mr Greenberg has appeared here in person, that we are not judges of fact in any sense. We are only allowed to consider matters of law. A complainant to an Industrial Tribunal gets one bite at the cherry only on matters of fact. Parliament has provided for appeals on questions of law only to this Employment Appeal Tribunal and that is the extent of the right of appeal.First of all it is instructive to look at the application made to Rabbi Greenberg, that is at page 12 and 13. He says at page 13 giving his reasons for his complaint, which is of unfair dismissal:
"These proceedings are brought against Carmel College for a unfair dismissal of Mr R Greenberg on 8th February 1994 after 11 1 / 2 years of service to Carmel College as a full-time teacher and housemaster. The claim is based on the fact that the dismissal was in respect of trivial and unconnected matters not amounting to sufficient grounds for dismissal, thereby making it unfair. Furthermore, the disciplinary procedure set out in Mr Greenberg's contract of employment was not in any way adhered to.

Full particulars will be provided in due course."

As far as we know they were not, but there was no complaint about that. It did mean thought that the respondents in their answer, at page 17, responded in a somewhat abbreviated way. They agreed that he was employed at a teacher. They said:
"b) It is denied that the Applicant's dismissal was in respect of trivial and unconnected matters not amounting to sufficient grounds for dismissal.
c) On the contrary, the Applicant repeatedly failed to perform the duties required of him despite written warning that further failures would justify the termination of his employment. Moreover, the Applicant clearly demonstrated by his conduct that he no longer intended to be bound by the duty of mutual trust and confidence.d) It is denied that the disciplinary procedure set out in the Applicant's contract of employment was not in any way adhered to.e) [ They then say, perhaps optimistically ] The Respondents await receipt of the full particulars referred to at Item 12 of the originating Application."So that is the response - the grounds on which the employers said that they justified the dismissal. The burden on them was to show those grounds. That was a burden which lay on them and which the tribunal had to see whether, at the end of the hearing, they had discharged.The tribunal conducted a long hearing and it is quite apparent to us not merely from what they say in their own reasons, but from the affidavit of Mr Kastner, solicitor, who appeared for the Rabbi throughout the hearing, that it was a hearing which was conducted with a great thoroughness. Mr Kastner wrote out and has deposed to what he said to the tribunal and he went through the facts in great detail and advanced arguments of difficulty and complexity, clearly in a most pertinacious way and was heard out by the tribunal until he came to the point at which he said he would now address them on compensation, and the learned Chairman then said that compensation would be a matter which would arise later if the tribunal were in his favour, or words to that effect. Therefore Mr Kastner at that point sat down and Mr Pawley for the respondents addressed the tribunal. He said at the end, and very shortly said, that it was a case in which the applicant's conduct had been so bad that even if there had been a breach of the disciplinary procedure and rules, the Rabbi Greenberg should receive no compensation.We look at the extended reasons. They say in paragraph 9:
"9 Shortly after his appointment a directive was issued to all Jewish members of staff that they must attend and participate in all Shabbat and Festival meals and no invitations should be issued to pupils to join staff in their houses. The applicant showed a reluctance to attend these meals and frequently sought exemption which was refused in the absence of a compelling reason but he did normally attend under protest but, by his body language and his propensity to read books of religious teaching during the meal in which he did not partake, he set a bad example to pupils present. During this period the applicant was consistently late for Friday evening services and failed to exercise a proper disciplinary role and the Headmaster spoke to him on several occasions and his response was that he had many additional duties. On 16 May 1989 the Headmaster wrote to the applicant pointing out the need to work together on Shabbat and the importance of punctuality and participation in the services."
Then they say in paragraph 10 that:
"... the applicant refused to lehn [ reading from the Scroll ] at these services and this provoked a formal complaint from Mr J Cannon, the Head of Jewish Studies [ He was a witness before the tribunal ]
11. The Headmaster also expressed concern about Rabbi Greenberg's teaching services. He taught fewer lessons than any other member of staff and only taught in the sixth form having refused to teach at GCSE as it was not in accordance with his teaching methods. His teaching methods were clearly unsatisfactory, written work was set inadequately and intermittently and lessons were spent on matters unconnected with syllabus and Jewish issues. This provoked complaint from parents and pupils and whilst A level results were satisfactory these were only achieved in many cases because Rabbi Greenberg gave private lessons to pupils in his A level class. On 16 December 1993 the Headmaster wrote to Rabbi Greenberg expressing his concern and asked him to supply a programme of essays for the remainder of the economic year and this was in fact supplied by Rabbi Greenberg on 11 January 1994."They then say in paragraph 12:
"12 ... his quality of work deteriorated after taking up appointment at Ridgeway. In 1992 the Principal Inspector of Schools, Oxfordshire County Council visited the School and found matters needing attention in Ridgeway but these were not completed in June 1993 partly due to Rabbi Greenberg's refusal to deal directly with the Bursar and Estate Manager. On 11 June 1993 Rabbi Greenberg was directed by the Headmaster to communicate directly with the Bursar so that matters could be satisfactorily concluded.
13 In summer of 1993 the School was visited by Her Majesty's Inspectors who found cause for concern in Ridgeway. The condition of the house was deplorable, the pupils had too much freedom, there was evidence of smoking and bullying of junior boys. ... The Headmaster asked him to take up residence in the Housemaster's house adjoining Ridgeway, but Rabbi Greenberg refused.14 Rabbi Greenberg's conduct at services on Shabbat did not improve and school prefects voiced concern about Rabbi Greenberg carrying on conversations with colleagues during the service and his punctuality remained a problem. ...15 The problems of supervision in Ridgeway were discussed on two occasions at some length and the Headmaster in his letter to Rabbi Greenberg on 16 December 1993 gave an ultimatum ... Rabbi Greenberg replied saying that he would resign ...16 On 27 January the Headmaster wrote to Rabbi Greenberg expressing concern that he failed to take Ridgeway House services on 21 January, on Monday 24 January he failed to carry out house duties and on Tuesday 25 January he was absent from the school dining hall when he should have been supervising the breakfast. He went on to say that further incidents of failure to perform these and other duties without due reason would justify the termination of employment. [ So that was another ultimatum ] The Headmaster received no reply to this letter, nor was any explanation offered but of Tuesday 1 February Rabbi Greenberg failed to attend staff meetings nor did he present apologies for his absence; on 2 February the Headmaster again wrote to Rabbi Greenberg expressing astonishment that he failed to attend the staff meeting and offer no apology. No response was received to the letter and Rabbi Greenberg again failed to attend the staff meeting the following week on 8 February nor was any apology or explanation received.17 By now the Headmaster was totally dissatisfied with Rabbi Greenberg's performance and felt he was no longer committed to work at a college as expected from a full-time teacher and that he could not properly function as Headmaster if staff disregarded him. He therefore decided to seek approval of the Governors to dismiss Rabbi Greenberg and on 8 February he received approval from two Governors to dismiss Rabbi Greenberg."The letter was written on the same day, handed to the Rabbi and Rabbi Greenberg read the letter and said:

"This is unjust, I will see you in the House of Lords."

They say they were referred to some leading cases on the subject of unfair dismissal and they make their findings in considerable detail:
"20 Having considered the evidence in this matter and the contentions of the parties we first of all asked ourselves the three questions which are set out in the well-known case of British Home Stores -v- Burchell . ... the Headmaster who made the initial decision to dismiss Rabbi Greenberg had a genuine belief in the misconduct of the Rabbi which is a potentially fair reason for dismissal under Section 57 of the Employment Protection (Consolidation) Act 1978. Whilst the applicant had many qualities, and the Headmaster was the first to recognise and acknowledge them, he was nevertheless at odds with Rabbi Greenberg from the beginning of his headship over his attendance and involvement in Shabbat meals and services."
They referred to the contract of employment and the duty of fidelity and good faith which the Rabbi owed to the Headmaster.Then they went on:
"22 ... to ask whether the investigation carried out by the headmaster was a reasonable one ... most of the matters complained of were witnessed personally by the headmaster ... consequently the decision to dismiss falls within the band of reasonable responses of a fair employer which would render the dismissal fair.
23 We then had to decide whether in all the circumstances the headmaster acted reasonably. It was conceded from the outset by the respondents that the disciplinary procedure was not followed but it did not render the dismissal unfair. Such a failure can only be justified in exceptional circumstances. The College Disciplinary Rules and Procedure state that in the event of gross misconduct or neglect of duty justifying summary dismissal the headmaster will ensure that the complaint is put to the teacher and will interview the teacher to hear the teacher's case before any decision is reached. It goes on to say that the teacher may be accompanied by a friend and has the right to appeal against any disciplinary decision of the headmaster to the Chairman of the Board of Governors.24 In this case no attempt was made to follow these procedures, the headmaster being satisfied from past experience that such a course would be futile. Clearly grounds for such a belief were properly held by the headmaster whose earlier complaints received no response or explanation from Rabbi Greenberg who consistently ignored them and indeed in his statement he states "As to this day I have not had an opportunity to explain these matters, I would like to do so now." He then goes on at considerable length to put forward explanations for the matters complained of. Rabbi Greenberg in fact had every opportunity to put forward explanations as and when complaints were made of his conduct and no blame can be attached to the headmaster for Rabbi Greenberg's failure which was a clear example of his complete inability to accept the headmaster's authority but nevertheless the headmaster should have given him a final opportunity to offer explanation at the final meeting which should have constituted a disciplinary hearing. However as a consequence the decision to dismiss made in consultation with the Governors was made before Rabbi Greenberg was given a prepared letter of dismissal. He was not given the opportunity to offer an explanation or be accompanied by a friend or told of his right of appeal and this approach to his dismissal must be regarded as a breach of natural justice which made the dismissal procedurally unfair."Now, that conclusion is challenged in the cross-notice by the respondents, but not having heard argument about that we treat it for present purposes as a correct and proper decision. That was a finding favourable to Rabbi Greenberg, but then they go on:
"25 We then considered the question of compensation and we were unanimously of the view that his course of conduct over a long period, although tolerated by a headmaster who showed much compassion until the situation became impossible to continue, that it would be just and equitable not to make an award."
That was their decision after, as I say, an exceedingly thorough and patient hearing as it clearly was; that although there had been unfairness in failing to give Rabbi Greenberg an opportunity to explain matters and in following the disciplinary code, nonetheless his conduct was such that it would be just and equitable not to make an award. There are several sections or subsections of the Employment Protection (Consolidation) Act 1978 which justify such a conclusion in a proper case. With regard to the compensatory award, under Section 74(1) (subject to matters which do not arise):
"... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
It is well settled that under that subsection a tribunal can conclude, for example if after an unfair dismissal it is discovered that the employee has been dishonest or matters of that sort, that it would not be just and equitable to award any compensation. I need hardly say that there is no allegation of dishonesty here against the Rabbi. Then in Section 74(6):
" (6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
There is a corresponding provision in Section 73(7B):
" (7B) Where the tribunal considers that any conduct of the complainant before the dismissal ... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce the amount accordingly."
Taken between them, if the tribunal concludes that the cause of the dismissal was indeed solely misbehaviour and that the failure of fairness by the employers had, in truth, nothing to do with it, then they are entitled to say that there is to be no compensation awarded, whether under the basic award or under the compensatory award. That, it seems to us, although they expressed it very shortly, was precisely what this tribunal was doing in the circumstances. Having found a technical breach of the disciplinary code, and having said quite rightly that they would always take that matter seriously and did take it seriously, and found against the employers, nonetheless they were clearly satisfied that bad behaviour by a Rabbi, in a position of great authority and importance in a Jewish school, was the cause of the dismissal. I do not think I need to paraphrase anything that has been said by the Industrial Tribunal, that was their finding.Well now we are considering the Rabbi's appeal. He, appearing in person now and without the assistance of solicitor or counsel, has read to us from his skeleton argument which was prepared with some legal assistance. He first with our leave amended his Notice of Appeal to say there was a basic unfairness in that the tribunal so decided when they had refused to hear his advocate Mr Kastner on the subject of compensation. It appeared to us after considering very carefully what is said by Mr Kastner in his affidavit that we should not give effect to that ground of appeal, that there had been in fact no such unfairness arising from what was clearly a misunderstanding between Mr Kastner and the Chairman, and we gave our reasons for that earlier. I do not propose to repeat that.He then goes on to his other grounds in his skeleton argument which he referred us to starting at paragraph 6. He said:6. The fault identified by the Tribunal was not causative alternatively not the sole cause of the dismissal/the Tribunal ignored the stated reason for dismissal in the Respondent's letter of dismissal ."Then in great detail and by reference to the authorities, Mr Greenberg said that the reason stated in the letter was that he had criticised Mr King, his successor apparently as housemaster of Ridgeway House, that was stated in the letter, that was the reason for the dismissal. He says quite rightly that it is the duty of the tribunal to identify the reasons for the dismissal, after the employer has made them out if the employer can, and to give their grounds for saying, if they do, that it is the behaviour of the employee which is solely the cause or partly the cause of any reduction in the award.Those submissions are clearly as well-founded in law as anything could be. They are well supported by authority, but when you look at the facts, they are completely unfounded in facts at all. So far from that being given as the reason for dismissal, in this very letter of dismissal the headmaster refers to this being the fourth occasion in recent weeks when he had been obliged to write to the Rabbi and he referred to many previous occasions going back at least to 1989. The tribunal, having heard all the evidence, set out what we are told amounts to something like 15 serious grounds of complaint - they are certainly very numerous - going back over a large number of years and they state in terms that the headmaster was well justified in concluding that nothing that he could say would result in any intelligent or useful response from the Rabbi or indeed any response at all. The fact was that the Rabbi incapable of recognising the headmaster's authority. The tribunal say that it is for all the reasons which they set out, and it would be really be tedious to go through them again, but for all the reasons they set out it would not be just and equitable for them to award him any compensation.The Rabbi says to us today, "well look, that very first paragraph refers to a criticism of Mr King's decision and they did not decide that." The answer is that the tribunal were content to proceed on matters which were within the knowledge of the headmaster. To investigate what is said at the outset of the letter, as being the straw that breaks the camel's back, would involve in the nature of things, unless the headmaster had been present which clearly he was not, not hearing merely what Mr King said, but possibly referring to pupils and others. It does seem with all respect that that is straining at a gnat. The fact was the tribunal found that the true cause of the dismissal was the matters which they set out, far more serious than some impolite or tactless remarks about another master's decision. They found that those were the true causes for dismissal, and they found that in all the circumstances those justified them in saying that although there had been a breach of the disciplinary code, there should be no compensation.We simply think that it is wrong to say that the respondents were relying principally on the allegation about the fellow schoolmaster, and we look to see what they said in the answer as well as everything else. It is clear that that is ill-founded in fact.Then Mr Greenberg tells us that one of his absences from a meeting was justified because he was taking a class, invigilating an examination. So be it, there was no apology and explanation apparently, and then he missed another meeting. These are, taken by themselves, relatively trivial incidents and if after any of these incidents which are spoken of as trivial, Rabbi Greenberg had said "I am very sorry, I will not do this again, and I am sorry headmaster I did not mean any disrespect", no doubt that would have been accepted because it is said that the headmaster was a compassionate man of great patience.The fact is that this decision, which is well reasoned, clearly tells the appellant why he has lost the case. We think that it was a fair decision and that it was justifiable in law. To say that it is an exceptional decision carries the matter no further at all. These were exceptional facts. We do not think that the tribunal, shortly as they finally expressed their conclusion, show any inability to express the reasons why they have arrived at that conclusion.So, in our view, this appeal must fail. That is the decision of us all.