MR C LOPEZ v VILLA DEL CESARI LTD [2000] UKEAT 0423_99_1204

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 0423_99_1204

Case No Appeal No. EAT/0423/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C LOPEZAPPELLANT

VILLA DEL CESARI LTDRESPONDENT

Before

MR COMMISSIONER HOWELL QC

MR J R RIVERS

MR G H WRIGHT MBE

Date 12 April 2000

[1]APPEARANCES For the Appellant MISS LOUISE BROOKS (of Counsel) Instructed by: Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR For the Respondent MR DAVID JOSEPH Representative First Business Support 33 Old Woking Street West Byfleet Surrey KT14 6LG MR COMMISSIONER HOWELL QC: In this appeal Mr Cayetano Lopez seeks to have set aside the decision of the London South Employment Tribunal contained in extended reasons sent to the parties on 28 January 1999, after a hearing into his complaint of unfair dismissal which took place on 4 January 1999. The Tribunal's reasons are set out at pages 326 of the appeal file before us. The background to the appeal is shortly that Mr Lopez had for 7 years been employed as a chef de partie with the Respondents the Villa del Cesari Ltd, who operate a restaurant in Pimlico. The restaurant, whether because it is near the river or not, apparently had to be closed in July 1998 because of necessary building works as a result of subsidence and the consequences of that are what gave rise to Mr Lopez bringing his complaint to the Tribunal. According to the facts found by the Tribunal as set out in paragraphs 5 and 6 of their extended reasons, the closure had originally been scheduled for six weeks and the company had intended to retain 6 of their staff, including Mr Lopez. They were told that they would be required when the restaurant reopened and asked to take their annual leave to coincide with the building work. We were told that there was a meeting with the staff but, as the Tribunal recorded, the news about the effect on Mr Lopez was conveyed to him in a discussion with a Mr Oyrzinski, who is part of the management of the restaurant, about a week before the closure began.

[2]After the closure the building work began and for the next few weeks Mr Lopez had been paid, although sporadically, from time to time at first by cheque and later directly into his bank account the last payment being received on August 21 1998. In the Tribunal's words in paragraph 6 of their reasons :- 6. "He rang the restaurant on about 25th August and spoke to the Managing Director, Mrs Zinn. The conversation was in Spanish. Although Mr Oyrzinski was with Mrs Zinn at the time, he does not speak Spanish. The Tribunal heard from Mr Lopez that Mrs Zinn told him that the restaurant would re-open on 26 September and that they wished him to continue working for them, but he had an option. If he wished to come back on 26 September, he could return to work then, but would not receive any additional pay. Alternatively, she would pay him an additional four weeks pay, but he would not then be employed on the re-opening of the restaurant. He did not make a choice between these options. The conversation ended with his saying that he had problems and had to think it out. He then went to the Pimlico Citizens Advice Bureau. They wrote to the Respondent on his behalf. The letter (R1) was produced to the Tribunal by the Respondent. That letter has been included among the appeal papers before us at page 13 of the appeal file. It is dated 2 September 1998 and it reads : Re: Your employee Mr Lopez "We understand from out client that his last actual day of work was on the 25 th July 1998 and that his last paid week was for the week ending the 21 st August 1998. Our client had requested that you forward the following information. 1) Our client's current employment status? 2) Why has he not paid been paid since 21.08.98? 3) Full up to date details of his holiday entitlement. Please could you deal with this matter as a matter of urgency, we understand from our client that he has over seven years continuous service with yourselves and therefore have advised our client of his statutory rights to take this matter to the Industrial Tribunal."

[3]The Tribunal's comment on that letter as recorded in paragraph 6 of their reasons was that it was clear that this letter did not constitute a resignation nor did the letter allege that the applicant had been dismissed, but merely sought to clarify the applicant's position in relation to employment with the Respondent. Although not so recorded by the Tribunal in their findings, it is apparent from the papers before us and it is indeed common ground, that the Respondents never made any response to that reasonable enquiry, or to the hint at the end of that letter that the matter would be taken to the Industrial Tribunal. That failure to communicate or comply with a reasonable request for information on the part of an employee in these particular circumstances, after the Respondents had unilaterally stopped paying the employee his wages, was in our view, unreasonable conduct on the part of the employer, particularly as this employee was by no means a casual employee but had seven years service, and the Respondents had made it clear that they wished him to continue in their employment when the restaurant reopened. Resuming the Tribunal's recital of the facts, in paragraph 7: - 7."Mr Lopez began looking for another job, in order to ensure regular income. On 5 September, he obtained work, and he did not contact the Respondent again, other than in connection with these proceedings. The Respondents tried to contact him on several occasions, leaving telephone messages for him, but without success. On 24 September, they decided that he was not going to be available for work and hired a replacement."

[4]Mr Lopez's originating application to the Tribunal dated 21 October 1998 alleged that in the circumstances we have outlined, he had suffered unlawful deductions from his wages and that he had been the victim of a constructive dismissal, wrongful dismissal and an unfair dismissal. As he said himself in the statement attached to his originating application, he had been told that the Proprietor to the restaurant did not have the money to pay him after his last payment on 21 August, and he had been given two options either to return to work on 24 September but not being paid his holiday pay, or to quit, whereupon he would be paid one month's wages as compensation for his seven years with the company. When the matter came before the Tribunal, on the face of the application there were therefore two main issues for the Tribunal to consider : - First, whether money due to the Applicant under or in consequence of his employment contract was outstanding and should be paid to him and Second, whether that contract had been brought to an end in circumstances amounting to unfair dismissal entitling him to the normal remedies under the Employment Rights Act 1996. Conclusions12. "The Tribunal was unanimous in deciding that there was no basis in fact for deciding that the Respondent had terminated the employee's contract in terms of s.95 (1) (a). At no time had the Applicant been told that he was dismissed."

13. "We then went on to consider whether the facts gave rise to a constructive dismissal in terms of s.95 (1) (c). We found that there was a clear and fundamental breach of contract by the Respondents in that they failed to pay the Applicant on a full and regular basis during the period of closure. Mr Lopez would therefore have been entitled to treat himself as constructively dismissed. In order to do so, however, he would have had to resign and, soon after the breach, communicate this to the Respondent. On his own evidence, he failed to do this. He took another job, but he did not inform his employer of the resignation. In the normal circumstances, the employer would have been able to surmise that he no longer intended to be bound by the contract of employment. In view of the closure of the restaurant, however, this was not possible. As the re-opening approached, the employer made efforts to contact Mr Lopez, but they were unsuccessful." "But repudiation by one party standing alone does not terminate the contract. It takes two to end it by repudiation on the one side and acceptance of the repudiation on the other." Thus in an earlier case Lord Collins had said: - "I think the true test applicable to the facts of the case and the true question is that whether "the acts and conduct of the party evince an intention no longer to be bound by the contract." "Acceptance of a repudiation of a contract of employment will usually take the form of the employee leaving and saying why he is leaving but it is not necessary in law for the reasons to be given at the time of leaving. The fact finding Tribunal is entitled to reach its own conclusion based on the acts and conduct of the party as to the true reason."