Massaquoi v Odu-Dua Housing Association Ltd [1996] UKEAT 755_96_1112

EAT
Massaquoi v Odu-Dua Housing Association Ltd
[1996] UKEAT 755_96_1112 · 1996-12-11
MR JUSTICE LINDSAY: We have before us a preliminary application in relation to the decision of the Industrial Tribunal on 3 June 1996 held at London (North) under the Chairmanship of Mr P R K Menon, in the case of Mr M F Massaquoi against the Odu-Dua Housing Association Limited.The Respondent Housing Association is a relatively small body. It had at the time some 7 employees. The Appellant, Mr Massaquoi, was engaged on 24 July 1995 initially for three months, in other words to 23 October 1995. On 30 October, after that expiry, there was an oral extension for a further three months.On 3 November 1995, Mr Massaquoi was invited during the course of his work and as part of his work, to join with another employee of the Housing Association, to move some furniture from a vacant property which was owned by the Housing Association, but he refused to do that, simply on the ground that it was not within his job description. There was no question of inability or injury or discomfort or anything of that nature. He relied exclusively on that task not being within his job description. In the event, two persons senior to him in the Housing Association moved the furniture. That evening he was given a week's notice.The Industrial Tribunal has held that:"(2) It was a term of the Applicant's fixed-term contract of employment that either party to the contract could terminate the employment contract by giving one week's notice to the other party. Mr Oke [for the employer] did mention this to the Applicant but it did not register with him."...The Respondent Housing Association had averred that that had been expressly agreed. The Respondent's reply in its Notice of Appearance (IT3) on this point said:
"2. The Applicant was employed by the Respondent on 24th July 1995 as a Housing Assistant under a fixed term contract for three months terminable at any time by either party on one week's notice ("the Initial Contract"). The terms and conditions of the Applicant's employment were agreed with John Oke, Director of the Respondent Association prior to 24 July 1995."
Evidence was given in chief by the reading of prepared statements. Whether there was an agreed term that notice of only one week either way should be applicable to Mr Massaquoi's employment, was essentially a question of fact. It is plainly open to the Industrial Tribunal to find, as it did, that the matter was mentioned and Mr Oke had mentioned it, but that it did not register with Mr Massaquoi. The fact that it did not register, does not of itself, as it seems to us, preclude that it was an express term. It was mentioned by Mr Oke and it might not have had its significance realised by Mr Massaquoi, in the sense that it did not register with him, but there is nothing to suggest that there was any disagreement or protest, and it was the Respondent Housing Association's evidence that the matter had been agreed in the way that I have indicated.On that simple point, it seems to us that no error of law appears from the criticism that Mr O'Dempsey makes before us on Mr Massaquoi's behalf. The alternative ground that is relied upon is that there was an implied term that only one week's notice should be the applicable period of notice. Given an opportunity to develop it, Mr O'Dempsey would wish to criticise that finding too. But he recognises, as is plainly the case, that unless he can succeed on the express ground, then it is beating at the air to develop any argument on the implied ground.We find that there is no discernible error of law in the finding that I have mentioned as to one week's notice, and therefore we have no need to go into the implied argument. There is, as we see it, no identifiable error of law of any sufficient strength to permit the matter sensibly to go forward to a full hearing. We dismiss the application.