Post Office v Kalam [1998] UKEAT 285_98_2502

EAT
Post Office v Kalam
[1998] UKEAT 285_98_2502 · 1998-02-25
MR JUSTICE BELL : This is a preliminary ex parte hearing in respect of the Post Office's appeal against the decision of an Industrial Tribunal held at Stratford after a hearing on 20th November and 15th December 1997. The decision, promulgated on 19th January 1998 was that the applicant, Mr Kalam, had been unfairly dismissed.There are four grounds of appeal in the Notice of Appeal. The first is that the tribunal made no finding of what it found to be the principal reason for dismissal. That may or may not carry much weight with the Employment Appeal Tribunal on a full hearing. Indeed, we asked Mr White for the Post Office whether he wished to abandon that today, but he wants to reserve his position.The second and third grounds are that the tribunal did not show by its decision that it had identified the correct test of fairness; and that the tribunal did not give sufficient reasons or proper explanations for those reasons to support the finding of unfair dismissal. Those grounds may or may not prove attractive at a full hearing.The fourth ground, however, reads as follows:
"In paragraph 5(4) of their decision the Tribunal consider the actions of Mr Welland, the manager who made the initial decision to dismiss Mr Kalam. The Tribunal only identify two flaws in his actions (although they state that there were several). One reason given was that Mr Kalam did not know that he faced dismissal. This is clearly contrary to the unchallenged documentary evidence before the Tribunal that Mr Kalam had received just such a warning."
We have in our papers a letter dated 27th March 1997 to Mr Kalam, which on the face of it does appear to put him on notice that there was a possibility of dismissal arising from the hearing which Mr Wellard proposed to hold, and became it seems to be arguable that the tribunal reached a decision which was not in fact supported by the evidence, in that respect, we have decided that this matter should go ahead to a full hearing.That course raises various ancillary matters. Firstly, since its decision of unfair dismissal, the tribunal has made an order that Mr Kalam be reinstated, in fact on Friday of this week, two days hence Mr White says that there will be all sorts of practical difficulties and possible unfairness against one side or the other if that order for reinstatement stands. However, Mr Glyn has kindly attended this morning, although this is formally an ex parte hearing, to help us on ancillary matters, and he has directed us to authority that an order for reinstatement is in fact unenforceable. In those circumstances, we take the view that it is up to the Post Office to have the courage of its convictions, whichever way they take it in relation to the reinstatement. It must make its own decision as to whether to abide by that order or not. If it did not abide by the order and there was any order for compensation as a result, then an application for stay of any County Court proceedings for enforcement of the order could be made. So we do not propose to stay the order for reinstatement.We do think that there is sufficient uncertainty about the future of Mr Kalam's employment by the Post Office however to think that this is a fit case for expedition of the appeal. We so direct.That leaves one outstanding matter which is whether we should direct the production of the Chairman's Notes of Evidence in relation to any particular matters. Mr White suggested that it would be sufficient if the Chairman's Note of Evidence in relation to any warning of the possible peril of dismissal, were provided. Mr Glyn has put us on notice, however, that even if ground (iv) turned out to have merit, he or at least his client, would wish to argue that as a matter of overview, the tribunal's decision of unfair dismissal should be sustained. In those circumstances, he asked that the Notes of Evidence given in cross-examination of Mr Wellard and Miss Little, two witnesses on behalf of the Post Office, should be directed. That seems sensible to us, so that Mr Glyn can expand the argument which he has anticipated on that basis.