Fletcher v. Sun Life Assurance Company of Canada (UK) [1999] UKEAT 175_99_1705

EAT
Fletcher v. Sun Life Assurance Company of Canada (UK)
[1999] UKEAT 175_99_1705 · 1999-05-17
MR JUSTICE LINDSAY: This is by way of the preliminary hearing of the appeal of Mr A S Fletcher in the matter Fletcher against Sun Life Assurance Company of Canada (UK) Limited. Mr Fletcher appeared in person below and, indeed, has appeared in person before us today. The hearing was spread over two days – 29 October 1998 and 4 November 1998 before the Chairman alone, Mr Jenkinson. The decision was first of all promulgated in short form on 12 November 1998 and it said, so far as material, "The application claiming unpaid wages and breach of contract fails". There were then reserved summary reasons and they were then followed later by reserved extended reasons. The reserved extended reasons were promulgated on 7 December and the Notice of Appeal is dated 4 January of this year.The Notice of Appeal raises two points and Mr Fletcher has added another one this morning. The two grounds raised by the Notice of Appeal are first of all that Mr Fletcher had not admitted during the course of the hearing being indebted to the company in the sum of £1,055.91 and secondly, the company (says Mr Fletcher) had waived any debt that was due to them when he left them. As to the first point - the fact that he had not admitted that there was £1,055.91 owing - it is true that the Tribunal mentions that Mr Fletcher had in the course of the hearing agreed that he was indebted in that sum. Thus in the reserved summary reasons they say:
"The amount which Mr Fletcher owes the Respondent is £1,055.91. He agreed the figures in the course of the hearing" and in the reserved extended reasons, the Chairman says "
At the hearing Mr Fletcher agreed that he was indebted to the Respondent in this sum". However, the position does not seem to be that the Tribunal held that that sum was the debt that Mr Fletcher owed simply by reason of his having agreed it in the course of the hearing. What they say in their paragraph 3 is that:-
"When Mr Fletcher resigned he was in receipt of monies under the pay and finance arrangements grid system whereby the Respondent make a loan to the consultant against future commission. In May 1998 he was paid £750 and in June £700. During the month of his notice period – 7 July to 6 August 1998, he earned £257.74 commission. The Respondents retained and offset this sum against the finance advance payments made in accordance with his contract. This reduced the debt from £1330.65 to £1,055.91."

In their paragraph 5 they said:-

"Mr Fletcher went on to the grid method of payment in May 1998 and as a result of this received payments of £750 and £700 referred to at paragraph 3 above, a copy of his individual financing record is at page 5 and it is this that shows his admitted indebtedness at £1,055.91."
It seems plain from the way they approached it that the Tribunal determined the size of the debt on the evidence presented to it. True it is that they mentioned Mr Fletcher had agreed that but they came to the conclusion on the figures as a matter of computation from the evidence put in front of them. Even if the Tribunal was wrong in saying that Mr Fletcher had agreed the outcome (and as they do twice mention that he had agreed it perhaps it is unlikely that they were wrong) - even assuming that they were wrong on that, then, even so, the holding as to £1,055.91 appears to have been arrived at not simply by saying "Mr Fletcher agrees this, therefore it is so", but as a matter of reasoning from the evidence put in front of them and we have to spot, if we can, some error of law. It is not enough to suggest that the facts could have been found otherwise. We do not find ourselves able to find any error of law in that first conclusion.So for the second point (the waiver point) that Mr Fletcher raises, it is quite plain that the Tribunal did understand that that was Mr Fletcher's case. In paragraph 2 of the reserved extended reasons they set out his understanding of the position and they say he was assured by his manager that if he left the company would not pursue the debt. The Tribunal concluded that point against him. In their paragraph 7 they say "The Respondent did not waive their right to collect the amount due to them on Mr Fletcher's departure." It was for the Tribunal to determine the facts and we have not been able to find any error of law in their decision, which is essentially one of fact, as to whether the Respondents had indeed waived their rights to collect the amount due to them on Mr Fletcher's departure.A third point has been raised by Mr Fletcher and that is that there were very late commissions which the company owed him which were not to be taken into account in the computation before the Employment Tribunal. The Employment Tribunal does carefully set out the figures that were put in front of it on the evidence and comes to the conclusion that we have mentioned that the financing record shows that the indebtedness is £1,055.91. We have no materials that suggest they did not have fully in front of them every consideration needed to come to that conclusion. Again Mr Fletcher is in the difficulty that facts are the province of the Employment Tribunal and that we are concerned only with errors of law. We are not able to find any arguable point of law that has any reasonable prospect of success and accordingly we must dismiss the appeal even at this preliminary stage.