Southern Vectis Omnibus Co Ltd v Thomas [1997] UKEAT 666_96_0603

EAT
Southern Vectis Omnibus Co Ltd v Thomas
[1997] UKEAT 666_96_0603 · 1997-03-06

JUDGE N BUTTER QC :

This is an appeal by the Southern Vectis Omnibus Co Ltd in respect of a decision of the Chairman, sitting alone, at an Industrial Tribunal at Southampton on 10 April 1996. The Extended Reasons for the decision were sent out on 10 May. We are told that no oral evidence was placed before the Chairman, who decided the case on the basis of documents before him, and on representations on behalf of the parties.The Chairman decided that the Applicant had been dismissed. He further decided that the effective date of termination was 19 September 1995. That is the issue for the consideration of the Industrial Tribunal and for the Employment Appeal Tribunal.The background to the case is that the Applicant was employed as a PCV driver. His contract of employment included an agreement between the employers and the union, expressly incorporated into the contract, which dealt among other things, with the question of ill-health severance.In July 1994 Mr Thomas became ill. He received a number of medical certificates and matters came to a head when he received a letter from the DVLC which told him that his PCV driving entitlement would have to be revoked and that after that, he would not be able to drive such vehicles. Mr Thomas asked his employers for his severance pay and he was paid this. As the Chairman said, in paragraph 4:
"4. What he did not get and what brings this matter before the Tribunal on the preliminary point as to whether or not he was in fact dismissed was notice or any payment in lieu of notice. The respondents say that was because either the contract had become frustrated or because the applicant had resigned."
The Chairman, in paragraph 5, reached the conclusion that the letter written by the Applicant did not amount to resignation and that, in that letter, the Applicant was simply requesting his severance pay and nothing more than that. It is sufficient if I say that a question mark may well hang over that particular finding, but it is not appropriate for us, at this stage, to say more than that.The Chairman considered the question of frustration and reviewed a number of authorities and concluded that it could not be said that the contract had been frustrated.The key paragraph which has been the subject of much argument today, arises in relation to paragraph 13, where the Chairman expressed himself in this way:
"13. Accordingly the Tribunal does not find that the contract was frustrated or that the applicant resigned. The only other relevant method by which the contract could have ended was that there was a dismissal by the employer. The Tribunal therefore finds on the preliminary point as to whether or not there was a dismissal that the applicant was dismissed by the respondents. The effective date of termination was 19 September 1995 that being the day after the date of the respondents letter confirming that the applicant's employment had ended."
There was a further possibility. That is to say that there had been a termination of the contract by mutual agreement. The Applicant's Counsel says that it is not open to the Appellants today to argue this and no oral evidence was adduced relating to it and the point was not argued. He says therefore, this is really a new point of law. This is, in principle, a valid objection, but it is necessary for us to turn to the IT3 at page 12 of our bundle to consider whether this is, in reality, a new point of law. In the IT3 the employers refer to the question of the frustration of contract and then went on to say:
"Further, and in the alternative, by a letter dated 6th September 1995 and on its proper instructions the Applicant resigned forthwith from his employment. That forthwith resignation was accepted by the Respondent Company."
It was therefore being said by the employers, in effect, that the employee had offered to resign and had tendered his resignation and the employers had agreed. In other words, there was agreement between the parties.We consider that the question of termination by mutual agreement is an extension of the argument, not a departure from the concept that there was here, what I may call a mutual parting of the ways. The vital question for the Industrial Tribunal to decide was, has the Applicant established that he was dismissed? The helpful authority to which we have been referred is the case of Birch & Another v The University of Liverpool [1985] ICR 470 . It is unnecessary for me to recite the various paragraphs to which reference has been made. We have no wish to criticise the Chairman personally, but we are unanimous in our view that there was here an error of law in that he failed to apply his mind to the question of termination by agreement.We have considered whether we can today reach a decision relating to this matter, but we do not think we can fairly do so. We are again unanimous in our view that the right course to take is to remit the matter to a full Tribunal, who may well think it necessary to hear all the evidence in addition to considering the documents before us.