Canavan v Hurst Publishing Ltd [1996] UKEAT 393_96_1812

EAT
Canavan v Hurst Publishing Ltd
[1996] UKEAT 393_96_1812 · 1996-12-18
MR JUSTICE LINDSAY : We have before us a preliminary hearing in relation to the appeal of Miss J. Canavan, a former employee, against the Respondent, Hurst Publishing Ltd. Her appeal is against the decision of the Industrial Tribunal under the chairmanship of Mr M.E. Coles, given at the end of a three-day hearing.The decision was promulgated on 2 February 1996 and the hearing had taken place between 15 September and 18 December 1995 and the unanimous decision of the Tribunal was that Miss Canavan was not unfairly dismissed and her complaint as to unfair dismissal was accordingly itself dismissed.The ground that was shown by the employer was gross misconduct. Miss Canavan has put in a Notice of Appeal of 14 March. She appears before us in person. The position is that Miss Canavan was a Field Sales Representative for the Respondent and the Respondent is a publisher of magazines and amongst the magazines published by the Respondent are magazines that contain advertisements in the motor trade. She was paid partly by fixed salary and partly by commission and the commission varied, as commissions do, with the volume of advertisements sold and no doubt the value of advertisements sold. At any rate, there was a commission referable to sales.A suspicion formed at Hurst Publishing Ltd, her employers, that she had been putting through orders which had not been authorised by the customers concerned. If that was true, then it not only put at risk relations between Hurst Publishing and the particular customers, but would have represented an improper inflation of the commission due to Miss Canavan. Investigations began to be made and, in particular, one customer called Mead of Chelmsford complained to Hurst Publishing. This was not the only complaint investigated, but the one investigated in the greatest detail and the one that ultimately proved the most important complaint.Miss Canavan was suspended on 29 June 1994 and the Industrial Tribunal found that thereafter there had been what the Industrial Tribunal called "an extensive investigation". That is what they describe in paragraph 7 of their Extended Reasons. I draw attention to that because the grounds of appeal which Miss Canavan urges before us today in person, depend very much upon an attack on the disciplinary processes of the respondent Company.So, first of all, the Industrial Tribunal found that there had been an extensive investigation. That investigation included an interview with Miss Canavan on 13 July 1994 and then there was a disciplinary meeting on 25 July 1994 and Miss Canavan's case at that stage was that the customer, Mead of Chelmsford was either mistaken or had been untruthful.Amongst the most particular concerns of the disciplinary process and, later, of the Industrial Tribunal, was a document which was described as "a purported credit note". That was enquired into in some detail. It was a piece of paper that was handed by the Applicant to a representative of the Mead company and the Mead company understood that it was described as a credit note and what the Industrial Tribunal said about that was this:
"9 ... It was not, of course, a credit note and the Applicant would not have had any authority to give a credit note. In fact the document was of no value other, presumably, than to attempt to pacify a customer who was complaining. ..."
There was a further disciplinary hearing on 12 August 1994 which was held before the Development Director of the Respondent company, Mr Graham Gibbons, and again, Miss Canavan complains today that that was an inadequate process but the Industrial Tribunal, which heard evidence, concluded that that was properly conducted. In their paragraph 10 they say:
"10 ... The Tribunal was satisfied from the evidence given to it , and this did not appear to be disputed by Mr Soor on behalf of the Applicant [ before the Industrial Tribunal ] that, from a procedural point of view not only that hearing, but also the earlier meetings and subsequent appeal hearing, were all properly conducted, with the Applicant being given in advance full details of the allegations against her, the opportunity to inspect all the relevant documentation, the opportunity to be represented and full freedom to present her own case and give full explanation or make such representations as she wished."
They went on to say:
"11 Mr Gibbons, [as I have mentioned, the Development Director who conducted that hearing] the Tribunal was satisfied, approached the disciplinary hearing with objectivity and precision. ..."
The outcome of the disciplinary process led, in the view of the Industrial Tribunal, to three headings which represented shortcomings in Miss Canavan's behaviour as far as the disciplinary process in issue in the Industrial Tribunal saw the matter. They are given at paragraphs (a), (b) and (c) of paragraph 13. I will not read them out but they were specified in some detail.Having found those shortcomings in Miss Canavan's behaviour, the Industrial Tribunal then applied the Burchell test, the well known case of British Homes Stores Ltd v Burchell [1978] IRLR 379 . They found that the Respondent had a genuine belief that the Applicant was guilty of the conduct complained of; that it had reasonable grounds to come to that belief, and that the Respondent believed that Miss Canavan's behaviour had been deliberate and that on that basis the dismissal which ensued could not be said to be outside the band of reasonable responses open to an employer.We have explained to Miss Canavan, who as I have mentioned has conducted her appeal in person, that we are not empowered to deal other than with errors of law. It is difficult, indeed, impossible for her to attack the quality of the disciplinary process which is the subject matter of her complaint, given that the Industrial Tribunal heard evidence on the point, that she was represented at the time and the Tribunal not only found that it was not found wanting but went out of its way almost to find that it was proper and had been conducted with objectivity and precision.Although Miss Canavan appears in person, her Notice of Appeal was professionally drawn, it would seem, and after setting out matters essentially of fact, the Notice of Appeal says at item 4(vii):
"In the foregoing premises the Respondent failed to carry out a reasonable investigation of the alleged misconduct and the decision of the industrial tribunal was perverse in failing to find accordingly."
That, unhappily, from Miss Canavan's point of view, is not a sustainable allegation. Whatever factual matter was thought by Miss Canavan's draftsman to lead to that conclusion, the Industrial Tribunal's express findings preclude us from finding any point of law that is open to her and accordingly, we dismiss the appeal.