MAZDON CONSTRUCTION LIMITED v MR H J TOPHAM [2000] UKEAT 1247_99_1201

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1247_99_1201Case No Appeal No. EAT/1247/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MAZDON CONSTRUCTION LIMITEDAPPELLANTMR H J TOPHAMRESPONDENT
Before
His Honour Judge Colin SmithDate 12 January 2000
[1]APPEARANCES For the Appellants MR A J HEMMINGS (Managing Director) JUDGE COLIN SMITH QC : This is a preliminary hearing of an appeal by the employers, Mazdon Construction Limited, represented by Mr A J Hemmings, Managing Director, for leave to proceed to a full hearing of an appeal against a decision of an Employment Tribunal held at Liverpool on 19th May 1999 of which extended reasons were sent to the parties on 7th June 1999, whereby the Employment Tribunal held, by a majority, that the employee concerned, Mr Topham, had been unfairly dismissed in all the circumstances. As a matter of record, the Employment Tribunal went on to hold that compensation payable should be reduced by 75% due to the conduct of the employee. Eventually he was awarded a sum of £321.98 by way of compensation. We have reminded ourselves, as we made clear to Mr Hemmings, who has presented the matter to us today in a courteous and clear manner, that we can only allow the matter to proceed to a full hearing if we are satisfied that there is an arguable ground of appeal on a point of law and we emphasise that. In particular, as we made clear to Mr Hemmings who is appearing in person, we cannot interfere with decisions that are properly reached on the basis of findings of fact. We can only interfere if there is some error of law that has been made by the Employment Tribunal.[2]It is against that background that we considered carefully everything that has been said by Mr Hemmings today, and of course we have looked with care at the Notice of Appeal which has been settled on behalf of the company, no doubt by Mr Hemmings or by those acting on his behalf.[3]We come to that in a moment, but we should just say, as appears from the decision of the Employment Tribunal, that they correctly stated the issues which they had to decide in paragraph 4. There was an issue as to whether the applicant had been employed for two years, whether the applicant had been dismissed; whether it was a health and safety dismissal. If there was a dismissal, was it fair or unfair; if unfair, did the applicant contribute to his dismissal? That was the way in paragraph 4 the Employment Tribunal set out the issues. In our judgment, they set out the issues correctly.[4]The Employment Tribunal then went on to amplify the issue relating to dismissal in paragraph 5. They said:
"… the question the Tribunal had to ask itself is whether the order to carry out work of a certain kind was legitimate; whether it was reasonable; whether it was reasonable for the employees to refuse to do the work."
The Employment Tribunal correctly set out that issue in that way in that paragraph.[5]The Employment Tribunal then found detailed facts which are self-explanatory and it is not going to assist for us to rehearse those matters because they are all clearly set out in paragraph 6. There was a job that had to be done, preparing the concrete bases for the positioning of silos and there was a team carrying out those tasks, including Mr Topham, and Mr Ryder, the site agent, took a decision that the 22 ton excavator was to be used and the concrete was to be collected in the bucket of the excavator from the delivery lorries and then poured into the silo base. Immediately that order was given, the tribunal found that the men objected and by 10:15 a.m. the relationship had broken down between them and Mr Ryder and the workforce were refusing to carry out the work in that way. There followed, on the findings of the tribunal, a number of telephone calls between the people involved, the agent, Mr Hemmings and the foreman and so on. Of course these also involved either Mr Topham or another of the workforce not directly Mr Topham on the findings of the tribunal. The tribunal made a clear finding at (xvi) that the workforce were aware that if they either left site or did not do the job, as they had been instructed to do it, their jobs were at risk. Then the Employment Tribunal went on find that the workforce, including Mr Topham, did not simply down tools and leave the site, they did down tools, but they then went off to see Mr Hemmings in order to discuss the matter with him, as the Employment Tribunal found as a matter of fact. Since he had already left Birkenhead to go to the Seaforth site there was a lack of contact so there had to be a telephone call. The Employment Tribunal made a finding at (xix) as follows:
"A telephone call took place between one of the men, not Mr Topham, and Mr Hemmings and it was clear from the telephone call that Mr Hemmings would not have the men back on site because they had left the job. That telephone call was made from Mr Hemmings' office in Birkenhead to Mr Hemmings at the site in Seaforth."
The men had reached his office and phoned him at the site. Now that was a finding of fact the Employment Tribunal made.[6]It was on the basis of those facts, to which we have referred, that the Employment Tribunal went on to conclude, first of all at paragraph 13 that:
"… it was not until the refusal by Mr Hemmings to have them back on site that the contract was terminated. That refusal occurred during the telephone conversation and it was therefore at that point that the termination occurred."
[7]The Employment Tribunal went on to consider whether, there being that dismissal in that way on their findings of fact, it was a fair or unfair dismissal. They found that no procedures had been followed at all by Mr Hemmings when dismissing his workforce. That was the crucial matter upon which the tribunal split into a majority and a minority view. The majority view, which is the one of course we are concerned with, is expressed at paragraph 18:
"The majority view however is that it may well have been the case that if Mr Hemmings had followed some sort of procedure he might have been able to sort the matter out within a couple of hours and have the work carried out that afternoon. The very reason these Tribunals are so keen on employers following proper procedures is to avoid these confrontations or if confrontation is inevitable to take the heat out of the situation by using proper procedures to discuss the problems that have arisen."
Finally at paragraph 20 the Employment Tribunal say this:
"It is the majority view that Mr Hemmings should have met the disobedient employees and discussed the matters with them and that it would not have been utterly futile so to do."
For that reason the tribunal found that there had been an unfair dismissal.[8]It is against that background that we have looked with care at the complaints that are made in the Notice of Appeal, for example, at paragraph 2 where it is stated:
"The court is wrong in its findings with regard to the content of the telephone conversation with Mr Ian Forster. Mr Forster, speaking on behalf of Mr Topham, made it clear that they would not, under any circumstances, return and carry out the work as proposed by Mazdon staff. …"
[9]In our judgment, that is essentially a matter of evidence for the Employment Tribunal to consider and a matter for the tribunal to decide one way or the other as a question of fact. It is essentially a question which raises an issue as to whether the tribunal made correct findings of fact. As we have already said, provided there is evidence to support their findings of fact, there is no way in which that can go forward as a ground of appeal. Here, there were obviously two versions being put forward as to what took place and the Employment Tribunal found as a fact in favour of the employees' version and we cannot interfere with that.[10]Similarly, where the Notice of Appeal complains at paragraph 3 of the Notice of Appeal that:
"It is unfair of the court to say that Mazdon should have followed some sort of procedure. Mazdon has rules for dismissal but these unfortunately do not cover employees who unilaterally decided not to work for the company."
That is a rather loaded way of putting the matter. But the simple fact is that we take the view that the majority of the Employment Tribunal were entitled to conclude that there should be in place some kind of procedure to deal with these kind of heated confrontational situations which arise particularly, but of course not exclusively, on construction sites. We cannot say that it was in any way erroneous of the majority of the tribunal to have concluded that there ought to have been some kind of procedure in place to deal with just this kind of situation.[11]It is pointed out, correctly, we assume, in paragraph 4 of the Notice of Appeal that the work was done later that morning and not in the afternoon. Even if that be the case, in our judgment, it makes no difference to the conclusion or reasoning of the Employment Tribunal.[12]Finally with regard to paragraph 5, which again sets out the case which Mr Hemmings wishes to make in regard to the matter, here again, when an Employment Tribunal has to look at a situation of this kind, it has to look at the position both from the point of view of the employer and also, as has been recently emphasised, from the point of view of the employee to see whether a fair decision has been reached. Here again, we cannot see that there is any arguable point of law which arises from paragraph 5 of the Notice of Appeal.[13]For all those reasons, we have concluded that we must dismiss this application and the matter will have to rest where it lies.