Luan v Goldhawk Systems Ltd [1998] UKEAT 1009_98_1112

EAT

Luan v Goldhawk Systems Ltd

[1998] UKEAT 1009_98_1112 · 1998-12-11

JUDGE PETER CLARK:

This is an appeal by Mr Luan, the Applicant before the London (North) Employment Tribunal, sitting on four separate days between 16 September 1997 and 12 March 1998, against that Tribunal's decision, promulgated with extended reasons on 23 June 1998, dismissing his complaint of unfair dismissal. In the same decision the Tribunal also dismissed his complaint of wrongful dismissal and made findings on the Appellant's claim of unauthorised deductions from wages and the Respondent's counter-claim for repayment of training fees which resulted in a net payment to the Respondent of £451.52.

The factual background is set out in the Tribunal's reasons. The facts material to the complaint of unfair dismissal and insofar as it is relevant for the purposes of this appeal of wrongful dismissal are these. The Appellant commenced employment with the Respondent on 11 May 1994. On 4 November 1996 a Mr Symmons joined the company as a manager. Whereas previously the Appellant had enjoyed a trouble-free career with the Respondent, Mr Symmons was critical of his performance. On 13 December 1996 the Appellant received a warning letter outlining complaints about his performance. Thereafter the Appellant and Mr Symmons met on 15 December. On 17 December the Appellant wrote to the Respondent referring to that meeting and setting out his claims for monies which he said were due to him. On 13 January 1997 the Appellant signed a note regarding the 15 December meeting and asked for a meeting to discuss his claim for outstanding payments.

That meeting took place on 16 January 1997 with Mr Symmons and Mr Rakesh Joshi, a director of the company. During the course of the meeting, the Tribunal found, the Appellant became agitated when taxed about the perceived weaknesses in his performance. He became argumentative and was then suspended by Rakesh Joshi. What happened next so the Tribunal found, is recorded in paragraph 20 of their reasons thus:

"20 The Applicant was asked to leave the company's premises. He refused, he became aggressive and threatening. he then left the offices and sought to remove the company car. He was stopped from doing so by Christopher Symmons. The Applicant insisted that he was entitled to take the car; he maintained an aggressive stance so that Rakesh Joshi called the police. The Applicant's aggressiveness and reluctance to leave continued when the police arrived but he eventually calmed and in due course left the premises. His aggression had involved shouting, raised hands, leaning forward in an over-bearing and disturbing manner, causing both Rakesh Joshi and Mr Symmons to fear violence could break out. He had endeavoured to take the company car despite being told he could not and had got into it and revved the engine in the hope that Mr Symmons would get out of his way."

On the following day Rakesh Joshi, Nitesh Joshi, a fellow director and Mr Symmons considered the events of the previous day. They decided that they had little option but to dismiss the Appellant because of his violent behaviour. Nitesh Joshi drafted a letter of dismissal, but did not immediately send it to the Appellant.

The Tribunal found that Nitesh Joshi was aware that the usual practice would be to interview the employee before taking the step to dismiss him, but given what followed and the fact that Mr Symmons and Rakesh Joshi had witnessed it for themselves he decided there was no point.

What followed was that on Monday 21 January the Appellant telephoned Nitesh Joshi, who told him that he would be receiving a letter of dismissal whereupon, so the Tribunal found, the Appellant threatened to go to the company's customers defaming the company. That confirmed Mr Joshi's decision to dismiss in his mind.

The Tribunal found that the date of dismissal was 17 January and not Monday 21 January. Pausing there, we think that finding is incorrect as a matter of law. Dismissal cannot take effect before it is communicated to the employee McMaster v Manchester Airport PLC

(1998) IRLR 112

. On the facts, the effective date of termination was 21 January, when Nitesh Joshi spoke to the Appellant on the telephone. However, nothing turns on the effective date of termination in this case.

By letter dated 19 February the Appellant was offered an appointment for an appeal hearing on 27 February. That date did not suit the person whom he wished to accompany him. He did not attend on that date. The Tribunal found that no further steps were taken to arrange a new hearing date, instead the Appellant as he was perfectly entitled to do, decided to pursue his complaint to the Employment Tribunal.

Employment Tribunal Decision

The Appellant contended below that he had resigned in circumstances amounting to constructive dismissal. The Tribunal rejected that case and held that he was dismissed by the Respondent for misconduct arising from his behaviour on 16 January. The Tribunal found that there was no failure in procedure, given that the misconduct occurred in the presence of one of the directors and the manager, Mr Symmons. Further, they held that the Appellant had been given sufficient notice of the appeal hearing. He preferred to pursue his complaint to the Employment Tribunal rather than pursuing an internal appeal. In these circumstances, the Tribunal held that the dismissal was fair and was for cause and therefore not wrongful at common law. He was dismissed within the terms of his contract.

The Appeal

In this appeal, Mr Luan complains that the Tribunal in their findings of fact, did not refer to his case that he had resigned in circumstances amounting to constructive dismissal. However, we can see from the Notice of Appearance that the Respondents disputed that version of events and we see that Mr Symmons and both Joshi's were called to give evidence before the Tribunal in support of the Respondent's case. It seems to us that it is perfectly proper for an Employment Tribunal to find the facts, that is to indicate which evidence it accepts, without the need to set out all the evidence it was given simply by way of recital.

His plea before us today is that the Tribunal have found the facts incorrectly. He says that the findings in paragraph 20 are not right and further submits that the findings in relation to the question of appeal set out in paragraph 24 of the reasons, are wholly wrong. He asks us to give him a second chance. He wants the case to be heard again so that he can adduce further evidence and get some help on the law. We have endeavoured to explain to him that that is absolutely not our function. We have no jurisdiction to reinvestigate questions of fact; our jurisdiction is limited to correcting errors of law. It is patently clear that this appeal discloses no arguable point of law.

One final matter raised by the Appellant in his Notice of Appeal and in oral submissions is that there is no mention in the Tribunal's decision or reasons about the return of his CNE certificate and training material from the Respondent. It seems to us that the Tribunal had no power to make such an order. He tells us that he has not paid the £451.52 under the Tribunal's order. It is pure speculation on our part but that may be an explanation as to why the documentary material has not been returned. At all events, if he claims a right to it, then that is a matter which would need to be pursued in the civil courts. Having said that, we do not encourage further litigation between these parties. In these circumstances, this appeal must be dismissed.