Thomason v Apollo Leisure (UK) Ltd [1998] UKEAT 419_97_0907

EAT

Thomason v Apollo Leisure (UK) Ltd

[1998] UKEAT 419_97_0907 · 1998-07-09

JUDGE J HULL QC :

This is an appeal to us by Mr Ian James Thomason. He appeals from a decision of the Industrial Tribunal sitting at Reading on 16 January 1997. The Tribunal consisted of Mr Gorst, the Chairman, sitting alone.

Mr Thomason had made a complaint to the Tribunal that there had been wrongful deductions from his pay, that there had been a breach of contract, he added other matters but at the moment we are not concerned with those. He had been employed by the Respondents, Apollo Leisure (UK) Ltd, the managers of a theatre in Oxford of the same name, the Apollo Theatre, and Mr Thomason was appointed Head Flyman there. His employment began, apparently, on 30 March 1995.

He had been unhappy and, to some extent, unwell (I say to some extent because it is not suggested that he had to remain in bed or anything of that sort) and he was under the care of his general practitioner. He had suffered from some depression and some difficulty, therefore, in thinking rationally and cheerfully about his future.

The Chairman heard what Mr Thomason had to say but he did not hear any other evidence apart from the documents, he no doubt looked at the Application and so on. Having heard Mr Thomason, the Chairman gave a short decision. He gave his Extended Reasons presently and I must refer to those. He dismissed Mr Thomason's complaints.

He said that Mr Thomason:

"has limited himself to asking for an order that the respondents should pay him 'company sick pay'" and he named a sum "and/or one week's wages in lieu of notice...The applicant who has not been represented, has appeared and given evidence in accordance with his proof of evidence... He has put in a 23 page bundle of documents..." and so on.

The Chairman set out the history of the matter, how Mr Thomason had worked for the theatre and then he said this,

"on 3 July Mr Thomason, on his own admission, resigned. There is a conflict as to what subsequently transpired."

Then he set out evidence which Mr Thomason had given to him. He said that Mr Thomason had said that on the following day, having seen his doctor, he had a sick note, he saw Miss Louise Clifford, the general manager of the theatre, and said he wished to retract his resignation. Miss Clifford took the sick note and said it was "OK" to withdraw the resignation.

Then the day after that, in other words, two days after his alleged resignation, he attended a disciplinary meeting. Mr Pat O'Leary, the technical manager, presided, Miss Clifford was present and Mr O'Leary started by saying that they had decided to accept the resignation. The Applicant was asked to confirm his resignation in writing. Neither Mr Thomason nor Miss Clifford made any mention to Mr O'Leary that Mr Thomason had offered to retract his resignation and Miss Clifford had accepted that. Then the Applicant said in evidence that he had visited the theatre and told Miss Clifford that he would not hand in his written resignation. What in fact happened was that the employers said, "your resignation will take effect from 6 July," that is, two days after it was alleged to have been given.

Then the Chairman addressed himself to what his findings were about all this. It was his duty to do so. The law is that the Industrial Tribunal is the only judge of fact. There is an appeal to us on any question of law which arises but nobody can come here and ask us to form a different view of the facts from the one which the Tribunal did. The Chairman said:

"The points which fall to be determined are first whether the applicant did offer to retract his resignation and whether Miss Clifford accepted that offer and if so did she have authority to accept it on behalf of the respondents.

On the basis of the evidence adduced by the applicant" in other words, what Mr Thomason had said, " on whom the onus of proof has lain, it has not been possible to answer those questions."

Then he says what material he has to go on. "As already stated," he said in paragraph 11, " the onus of proof is on the applicant. He has failed to discharge that onus."

Dealing with that: the Chairman is right to say that the burden was on Mr Thomason to satisfy him and the Chairman was entitled to say, as a matter of law, that he was not satisfied by what Mr Thomason had told him. We think that part of what the Chairman said is not supportable in law. We think he probably should have assumed, without any evidence, that Miss Clifford, as general manager, had authority to accept a retraction. But the first question was whether Mr Thomason did offer to retract his resignation and the Chairman was perfectly entitled to say that he was not satisfied about that.

Then having said that Mr Thomason did not discharge the onus and having gone through a little more, the Chairman said:

"Unfortunately for the applicant the only thing on which one can be certain is that on 3 July 1996 the applicant resigned [and they] treated the applicant's resignation as being from the end of that week, namely Saturday 6 July 1996, and paid him all that they owed him..."

Well, Mr Thomason appealed and the appeal was put in the list, as it almost always is nowadays, to see whether there was a fairly arguable point of law, and Mr Thomason came before a Division of our Tribunal of which I happened to be Chairman at that date, in July last year. What he told us (he was in person) was this:

"I said to Louise Clifford 'I just feel I can't go on. I was very upset yesterday. I want to resign. I want to go,' and she said, 'don't do that, think about it. You ought not to be in a hurry to do this.'"

We said, "if that is correct, than that most certainly is arguably, at an rate, not a resignation in the sense of terminating the contract." We went on to say it might be several things and that would all depend on the evidence and if that evidence had been given to the Chairman, or anything like it, we would have expected him to reach findings about that and when in fact, if at all, the contract had come to an end.

So we adjourned the matter and gave Mr Thomason leave to continue with the appeal and we asked the Chairman for his Note of Evidence, now at page 16 of our bundle. The Chairman's Note of Evidence is as follows, he has Mr Thomason saying he was employed from 30 March 1995 as Head Flyman and then simply this:

"On 3 July 1996 I resigned."

It is on that basis that the Chairman has made his finding of fact.

Now Mr Thomason's recollection is different. We are not suggesting for one moment that Mr Thomason is telling us anything which is untrue but the fact is we simply cannot retry the case by considering what Mr Thomason has told us and reaching a different conclusion from that of the learned Chairman. The reason is this; that Parliament has said we are not to do so and, like all other courts of appeal, we only have the jurisdiction which Parliament has given us. In fact it is a much narrower jurisdiction than that of the Court of Appeal in the Supreme Court, or the Crown Court when it is hearing appeals or, indeed, the Magistrates' Court when it is hearing appeals. We have a very narrow jurisdiction, simply to try points of law.

Therefore the question which we have to ask ourselves is "was the Chairman, as a matter of law, entitled to reach the decision which he did?" We think that not only was he entitled to, but, he having reached that conclusion, we are bound to accept that conclusion. It was the Chairman's sole responsibility to reach a finding of fact and he had his note of the matter, which we have to accept.

We regret that the Chairman said that it was perfectly open to Mr Thomason to serve a witness summons on Miss Clifford to bring her there. We think, in the circumstances, that was a comment which is a source of regret because Mr Thomason had only been told the day before about the other sides' intention not to turn up and it would be asking too much for him to do it in the time available. He might, of course, if he had been advised by a solicitor or barrister, have said "I ask for the case to be adjourned so that I can serve a witness summons, perhaps on both Miss Clifford and Mr O'Leary." He did not do that and, of course, like any other litigant in person he had to do the best he could in the circumstances, and so did the Chairman. It would have been out of place for the Chairman to force an adjournment on Mr Thomason if he did not ask for it.

We also regret what we are told, that this Chairman refused to look at a medical certificate. Speaking for myself, I have never refused to look at a medical certificate and I think he should have so, done but we cannot see that that would have affected the matter. We also think it is a source of regret, which probably the Chairman would echo, that he was unable to make up his mind about a number of other matters which were in evidence. But the Chairman has taken an oath, as every judicial person has, to make findings, to do justice in accordance with his conscience and the law. If he was unable to reach findings on these other matters he was entitled and indeed bound to say so. So the fact was that he had reached a conclusion on what he had found the only certain part of the case, which was that Mr Thomason had, in his belief, told him that he resigned.

Having heard Mr Thomason we are impressed by his sincerity and we therefore regret having to say what we do say, but it is that there is no basis in law on which we could allow this appeal.