Knowles v Perkin Decor Ltd [1996] UKEAT 698_96_2211

EAT
Knowles v Perkin Decor Ltd
[1996] UKEAT 698_96_2211 · 1996-11-22

JUDGE PETER CLARK :

Mr Knowles was a long-serving employee of the Respondent, Perkin Decor Ltd. His employment began in September 1965. He was a painter and decorator with an exemplary work record.In 1987 he sustained an injury at work to his back. Problems recurred in 1994, when he was forced to take 17 weeks sick leave. Thereafter he was appointed Contracts Supervisor in order that he could manage to continue in employment.In October 1995 he went off sick again. On 9 October the Office Manager wrote to him in these terms:
"I hope everything went well with your operation [his back was operated on that day]. I am just writing to let you know that for the next four weeks we will pay you your normal 45 hour wage, should you not have returned to work after this time we will pay you sick pay only."
Nothing was heard from Mr Knowles, and on 16 November 1995 Mr Perkin, a Director of the Company, wrote to him saying:
"Due to the fact that you have been unable to return to work after the 4 weeks indicated by yourself it is our intention to deduct from yourself £52.50 per week in lieu of sick pay paid to you in advance i.e. your wages were made up to full pay for the first four weeks, until this amount has been reimbursed to ourselves."
Subsequently, the employer accepted that such deductions were unlawful, and the pay was made up.On Sunday 19 November the Appellant and Mr Perkin spoke on the telephone. What was actually said was hotly in dispute at the hearing before the Leeds Industrial Tribunal held on 16 April 1996 to determine Mr Knowles' complaint of unfair dismissal.It was the Appellant's case that on that Sunday evening he telephoned and spoke to Mr Perkin at about 6.00 pm. Mr Perkin was in and to this extent there was no conflict of evidence. The Appellant said that Mr Perkin answered the phone and said to the Appellant "Don't get funny". The Appellant replied that he had had no sick pay. Mr Perkin said "We'll sort it out and don't get funny with me". He said "Come back after Christmas and bring your tools with you" and then he slammed down the telephone, according to the Appellant. A minute or two later the Appellant said he telephoned back and Mr Perkin said these words "Don't come back at all". As a result of that the Appellant contended that he had been dismissed.Mr Perkin's version was quite different. He says that at about 6.00 pm on that Sunday he was in his office at a meeting with two customers. He received a telephone call from the Appellant who wanted to speak to him but Mr Perkin replied that he was in a meeting and asked the Appellant to ring back the following Monday to sort any problem out. His evidence was the Appellant would not take no for an answer and wanted to talk about payments. Mr Perkin said he put the phone down. The Appellant rang back a minute or two later and Mr Perkin was impatient and told him to "Ring back on Monday and we'll sort it out". Mr Perkin denied saying anything about not coming back, and in particular did not use the words "Don't come back" or any other words which might suggest that he was dismissing the Appellant.Witnesses were called in support of the rival accounts but none which bore on precisely what was said on the telephone. Mrs Knowles, the Appellant's wife, did not hear the conversation, but said that after her husband had replaced the telephone he told her "That's it it's the sack".For the Respondent, evidence was given by Mr Meek, a Director of the Company, and Miss Ward, the Office Manager.Ultimately, it was for the Industrial Tribunal, as the tribunal of fact, to decide which version of the telephone calls it preferred, bearing in mind that the onus lay on the Appellant to prove a dismissal. The Tribunal were not satisfied that he had proved his case and they dismissed the complaint.In this appeal, which we have considered on the papers in the absence of the Appellant, who indicated that he did not intend to be present at this preliminary hearing, two points are taken. The first is an attempt to re-open the factual issue as to what was said on the telephone on 19 November last. That we cannot entertain. Our jurisdiction is limited to correcting errors of law. The Tribunal saw and heard the witnesses. They reached a conclusion on that evidence. We cannot interfere with that finding.The second point is this. It is argued that by unlawfully deducting the sum of £52.20 for a three-week period the employer was in repudiatory breach of contract which entitled the Appellant to resign and claim that he had been constructively dismissed. It is said that this argument was put to the Industrial Tribunal, but is not dealt with in their Extended Reasons dated 9 May 1996. On this basis the Tribunal ought to have found that the Appellant was constructively dismissed, even if it rejected his case of actual dismissal by Mr Perkin at the telephone on 19 November.In our judgment such an argument is and was doomed to failure. Even assuming in the Appellant's favour that, by their letter of 16 November the employers were in actual or anticipatory repudiatory breach of the contract of employment, there was no evidence that the Appellant accepted the repudiation. An unaccepted repudiatory breach does not terminate the contract. See Walker v Josiah Wedgwood & Sons Ltd [1978] ICR 744. His case, both in his Originating Application and before the Industrial Tribunal, was that he was dismissed by Mr Perkin using the words "Don't come back at all" on the telephone. That version was rejected by the Industrial Tribunal. Accordingly his claim failed.In these circumstances we can find no arguable point of law disclosed in this appeal. It must be dismissed.