Casanave-Laulive v British Airways Plc [1998] UKEAT 993_98_0111

EAT
Casanave-Laulive v British Airways Plc
[1998] UKEAT 993_98_0111 · 1998-11-01
MR JUSTICE LINDSAY : We have before us a preliminary appeal in the matter Casanave-Laulive against British Airways Plc. It is an appeal by Mr Casenave-Laulive against the decision of the Employment Tribunal following a day's hearing on 15th May 1998. The decision was promulgated on 11th June 1998. The unanimous decision of the tribunal was that the applicant, Mr Casanave-Laulive, was not unfairly dismissed when he was dismissed for gross misconduct on 19th August 1997.The position was that Mr Casanave-Laulive had begun employment with British Airways as long ago as 1986. There had been an earlier disciplinary incident in March 1997. There had been a disciplinary hearing in March 1997. That led finally on 16th June 1997 to a letter explaining to Mr Casanave-Laulive that a warning would remain against his name to be effective on the file for two years. That was all in the past. But then on 4th July 1997 Mr Casanave-Laulive arrived late for work; he went to the office and was rude and offensive, he then left to go to the canteen where he stayed for some 45 minutes, thereafter he called back at the office and became abusive. The Employment Tribunal held as follows:"9 ... Without real justification the Applicant became extremely abusive and used words exactly or very close to, "you can muck me around in here but outside your arse is mine".10 Both Mr Law and Mr Lindsey say that that put them in fear of physical violence from the Applicant. We find that they were justified in those feelings and which subsequently justified a finding of gross misconduct.11 As a result of that incident, disciplinary proceedings were commenced and, following a full investigation, the Applicant was dismissed by Mr Walmsley. The Applicant appealed against Mr Walmsley's finding of gross misconduct justifying dismissal, first to Mr Hogg and then to Mr Mathews, each of whom upheld the decision to dismiss."Then came the hearing on 15th May 1998.At the tribunal it was argued on behalf the applicant that he should have been given a formal written warning rather than having been dismissed. The Employment Tribunal concluded, after setting out that earlier story, as follows:
"14 Having heard all the evidence we have come to the conclusion the Respondents were entitled to hold that the original warning of 16 June 1997 was still live at the time of the commission of the offences of July 1997, that the letter of 16 June made it quite clear that any behaviour of the Applicant of a similar kind could result in a dismissal."
Then in some paragraphs which Mr O'Brien, for the applicant before us, particularly draws attention to, they say this:
"18 We have had difficulty in reaching a conclusion that the Applicant's activities on 4th July 1997 amounted to gross misconduct and that the finding to that effect by Mr Walmsley confirmed by Mr Hogg and Mr Mathews was justified.
19 We feel that gross misconduct as a finding was at the edge of the band of reasonable responses open to a reasonable employer, but we find that it was within such band of responses and accordingly [ Mr O'Brien emphasises ] we do not find that the Applicant was guilty solely of misconduct rather than gross misconduct."And then importantly the Employment Tribunal went on:
"20 In the above circumstances we find that the Applicant's behaviour on 4 July 1997 amounted to gross misconduct and justified dismissal.
. ..22 We find that there was no unfair dismissal, no breach of contract. Accordingly the Applicant's claim is dismissed."It is Mr O'Brien's case that it is at least arguable that the Employment Tribunal was applying the wrong test. They were saying, he says, that as the employer applied the label 'gross misconduct' and that it was a label which the employer was entitled to attach, for that reason and no more the Employment Tribunal was finding that there had indeed been some gross misconduct.But that, we do not think, can be a fair reading of the decision as a whole. It will be remembered that in paragraph 10 they had said:
"We find that they were justified in those feelings and which subsequently justified a finding of gross misconduct."
and moreover in paragraph 20 where it begins:

"In the above circumstances ..."

that relates not just to what had been said in the immediate two preceding paragraphs, but what had been related in the whole of the case down to that point. It seems to us that Mr Casanave-Laulive put his fellow workers "in fear of physical violence"; that is what the Employment Tribunal held. He did so at a time when he was subject to a warning. We do not find it possible to say that there is an error of law involved in the Employment Tribunal's reasoning. It is, of course, only to an error of law that we are required to look. In these circumstances, finding no argument available to Mr Casanave-Laulive, we dismiss the appeal.