Moon Furniture & Toy Centre v Coughlan [1998] UKEAT 306_98_2704

EAT
Moon Furniture & Toy Centre v Coughlan
[1998] UKEAT 306_98_2704 · 1998-04-27
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to identify whether there is an arguable point of law in an appeal which the employers wish to make against a decision of an Industrial Tribunal which concluded that there had been an unlawful deduction from the applicant's wages and awarded him £220 in respect of those deductions.The claim was presented in the IT1 which was dated 24th October 1997 and was received by the Industrial Tribunal on 29th October 1997. The applicant says:
"I worked at Marlene Mill approx. 4 months as a delivery driver. My job was delivering furniture to homes and picking up Cash to take back to Work. On 10th of October £600.00 went missing from the delivery van. When my partner and I got back to work we explained to the manager what had happened. We were told to carry on with the delivery's. Later on that evening when we were finishing the manager refused to pay our wages after dismissing us. I am now owed 2 weeks wages. I have tried to get my wage from him without success."
The employers responded in the IT3 as follows:
"Mr Coughlan worked for us as a delivery driver, but later found out that he was banned from driving and had an invalid license. This fact came to light when the police arrested him on our premises and took him away. From that day on Mr Coughlan was told that if he was banned from driving then he would be dismissed from work. He was also told that he could continue working for the company as drivers mater helping with deliveries but not driving the van, until he pleaded guilty to the police or was found guilty at trial.
Mr Coughlan knowing that he was to be fired soon anyway concocted a plan to steal £654 from the Company. Both he and the driver are solely and jointly responsible for collecting money owed to us on delivery. Both men came back one day from deliveries with a concocted story about money missing from delivery (£654). They just happened to leave it in the glove compartment of the van and left the van unlocked and somebody must have stolen it. On further questioning it was revealed that this money was in a sealed envelope together with £120 in cash, unsealed, which was from an earlier delivery. Neither man could explain why this money was still present yet the money is a sealed envelope went missing. Their only response was "can't explain it", or "no it doesn't make sense to us why someone would take a sealed envelope containing money but not the £120 cash". Police were called in and questioned both men with same response."The Company then went on to say "regardless of whether the money was stolen or went missing" they were entitled to deduct the monies from the men's wages. And that "precedent of missing money being deducted from wages had already been set and every employee was informed of this. Approximately five people will sign written letters confirming this and will appear at tribunal if required, although it will be a complete and absolute waste of everybody's time and money."It will be appreciated from the nature of the response which the employers are putting in, that they were raising a number of points. Firstly, they were challenging the applicant's integrity. They were saying that he had deceived them into employing him in the first place; they were alleging that he had been party to an alleged theft, concocted with the driver, in circumstances which called for an explanation; and finally, they were saying that everybody was employed on the basis that if there were shortfalls, then there would be deductions from wages.When the case was called on for hearing, the respondents did not attend. The Industrial Tribunal Chairman noted that the respondents had put in a notice of appearance. In the decision which is headed "summary reasons", but is in sufficiently comprehensive terms to enable us to deal with this appeal, the Industrial Tribunal concluded that the Company had no right to make the deductions referred to.The Company appeal that decision. They have not appeared on the appeal, but we are happy to deal with it on the basis of their submission to us.Effectively, what they are saying, is that the Industrial Tribunal simply have not dealt with their case set out in their IT3. It seems to us to be arguable, and sufficient for allowing this matter to go for a full hearing, that the duty of an Industrial Tribunal when considering a case in which a party has not appeared before it, albeit has entered an appearance, is to have regard to the contents of any document they submit to the tribunal, including, in particular, the terms of any pleadings such as their IT3, having regard to paragraph 9(3) of Schedule 1 to the Industrial Tribunals (Constitution and etc.) Regulations 1993 . What the tribunal has done in the decision is to say at paragraph 7:
"7. In reaching its conclusions, the Tribunal considered all the contents of the Notice of Appearance which was lodged by the respondent."
But nowhere in their summary reason decision has the Chairman purported to deal with any of the points raised in the IT3. That is the subject matter of the complaint of the Notice of Appeal. That we regard as an arguable point of law.Accordingly, the matter will be allowed to go through for a full hearing on the matters raised in this judgment.