Petruzziello v Richmond, Twickenham & Roehampton Healthcare [1996] UKEAT 526_95_0202

EAT
Petruzziello v Richmond, Twickenham & Roehampton Healthcare
[1996] UKEAT 526_95_0202 · 1996-02-02
MR JUSTICE TUCKER: This is a Preliminary Hearing ex-parte of an employee's appeal from a decision of the Industrial Tribunal held at London (South) on 29 March 1995. It was the unanimous decision of the Tribunal on that occasion that the Appellant was fairly dismissed and his application before them therefore failed and was itself dismissed.The Appellant was employed as a Care Assistant by the Respondents the Richmond, Twickenham & Roehampton Healthcare NHS Trust. He had been employed for a number of years. The incident which gave rise to the present appeal was alleged to have occurred during the night of 16/17 December 1993. It concerned an elderly female patient, who alleged that the Appellant had indecently assaulted her while giving her a bedpan. It is unnecessary to go further into the details. The complaint was investigated by the hospital authorities. They took statements from a number of witnesses and a disciplinary hearing was promptly held on 23 December. The Applicant was represented by a member of his union. Let it be said, not the member who represented him before the Tribunal.The disciplinary hearing heard the evidence from a number of witnesses. They came to the conclusion having heard all the evidence both on that day and a subsequent day, that the complaint had been made out. They concluded that it was a deliberate act which amounted to gross misconduct justifying dismissal. The Appellant appealed as of course he was entitled to do. An appeal hearing was held on 21 March 1994 before a panel of three. The Appellant was represented again by the same member of his union. It is noteworthy that the appeal took the form of a re-hearing, so that the same witnesses as before, save for one of them, gave evidence. This therefore was the second live hearing of the complaint which was heard.The appeal panel decided that the appeal should be dismissed. The members of that panel, or one of them certainly, gave evidence when the matter came before the Industrial Tribunal. In due course the Appellant made his complaint in his Originating Application IT1. It surprises us that it took so long for that complaint to come before the Tribunal; a period of something like fourteen months after the initial dismissal.When the matter did come before the Tribunal, the Appellant was represented by another trade union representative and the hearing got off to a bad start. The first thing that happened was that the union representative objected to the Chairman acting in the matter. Apparently no such complaint had been raised beforehand, but it was raised on the date of the hearing, which had been listed for two days. The representative accused the Chairman of bias in two respects, which it is unnecessary to go into. The Chairman having heard that allegation ruled that there was absolutely no problem so far as he was concerned in his ability to deal with the case in an unbiased and judicial way. He had never acted for the Respondent, though it is true that in his former capacity as a solicitor, he had acted for other health authorities. But he knew none of the witnesses and did not know the Appellant. There was no reason at all why the Chairman should have stood down. That might have been thought to have been the end of it.An adjournment was granted at the representative's request, and the parties subsequently came back before the Tribunal. The representative was still not satisfied. He made another application for the Chairman to stand down. He repeated what he had said before. He said that the Applicant was not happy with him, though we have not heard from the Appellant himself that that was the case. The representative made a further application, saying that the Chairman would be biased towards the Appellant because he, the representative, had already requested him to stand down and might have taken objection to this.The Chairman told him that the matter had already been decided. The representative then criticised the Chairman for not consulting his Members in the decision which he took. Surprising criticism considering that the objection had been taken to the Chairman himself, not to his lay Members. The Tribunal then attempted to commence the hearing. The representative then requested an adjournment to a future date, so that the Applicant could have a different representation if the case came before the same Tribunal. It seems to us that no effort was spared to obstruct the hearing of this application.We do not suggest that the Appellant was behind any of this. He has told us that he was not. It was the efforts of his representative that resulted in what took place. We have to say that he seems to have done his best to attempt to antagonise the Chairman, whereas the Chairman responded to these allegations with commendable restraint. That all having taken place, the Appellant then personally indicated to the Tribunal that he felt unwell and the Chairman records him as saying that it was because of the argument between his representative and the Chairman. Mr Ascough who was the representative concerned, then said he considered that the Chairman's body language in dealing with this application had been hostile. Which was, as the Chairman said, quite ridiculous. So a very unhappy situation had developed.A further adjournment was granted and at 11.15 a.m. the parties were called in again in the hope that the hearing would commence. This time Mr Ascough attended without the Appellant. He told the Chairman that the Appellant had decline to attend and had instructed Mr Ascough not to proceed. He then said that he had advised the Appellant to stay, but the Appellant had not taken his advice. The Tribunal say this:
"14. ...The Tribunal can understand the Applicant feeling upset at the confrontational attitude of the Applicant's representative in dealing with the Applications made to the Tribunal but do not consider that he was so unwell as not to be able to continue with the proceedings."
That was the view the Tribunal formed. They were there. They saw the parties. They had seen the Appellant, and they had the feel of the situation. It subsequently transpired that the Appellant did visit his general practitioner later that day, who certified that he was suffering from "stress-related abdominal pain" and was unable to attend Court. The next day the doctor gave him a Sick-pay note saying that he should refrain from work for one week and the diagnosis was "gastritis, secondary to stress".In those circumstances the Appellant appears before us on this Preliminary Hearing to pursue his appeal. The grounds of his appeal are that:
"I was unable to be present owing to my sudden illness (doctor's certificate attached). This was caused by the pressure of the case. Request for adjournment was refused and so my version of the case was not properly put forward."
The Appellant has addressed us today with moderation and clarity. We are grateful to him for his attendance. He says he felt sick, he went home and his complaint is that he was not able to give evidence. When we asked him what was it that upset him, he said quite frankly "it was the dispute with the judge that upset me. I think my representative should not be involved with things like that. I am not very happy with the union and I am advised that the union did not represent me properly". We think he has received good advice in that respect. We would advise him if he has not already done so, that he should seek advice from a solicitor as to whether he was properly or adequately represented by his union at the hearing before the Tribunal. It may be that either the Citizens Advice Bureau or the Legal Aid Board will assist him in making such an application to a solicitor and in obtaining proper advice.Our problem is, can we help him in his appeal to us from the Tribunal? As we have explained to him, we can only allow the matter to go forward if a real point of law is raised, and that of course would include an argument that the Tribunal had behaved perversely. We cannot see that the Tribunal did, in the circumstances which confronted them, behave perversely. Even in the absence of the Appellant, they considered the matter fully. They set out their findings as to what had occurred at the disciplinary and appeal hearings. They directed themselves impeccably upon the law and they came to the conclusion that the procedures at the hospital could not be faulted. Indeed we can see no way in which criticism could be levelled against them.We are therefore unable to detect any defect in the procedure before the Tribunal, and we are unable to say that it is even arguable that they acted perversely in the way they did. Therefore, although we regret very much what occurred before the Tribunal, and we understand that it was not the fault of the Appellant that it should have gone the way it did, we do not think we can assist him. We are bound to say that even if this matter were to go forward to a full hearing, we do not see any possibility of this Appeal Tribunal being able to help the Appellant in these circumstances. The appeal must be dismissed at this stage.