AUTOHOUSE TOTTENHAM LTD v MR Y CONSTANTINOU [2000] UKEAT 511_00_2011
[1]APPEARANCES For the Appellant MR DOUGLAS LIVINGSTONE (of Counsel) Instructed by: Messrs Norman Saville & Co Solicitors 47 Muswell Hill Broadway London N10 3HA For the Respondent MR FERGUS MALONE Representative Free Representation Unit 4th Floor, Peer House 8-14 Verulam Street London WC1X 8LZ JUDGE D M LEVY QC Mr Y Constantinou, the Respondent to the appeal ("Respondent), was employed by the Appellant as a repair estimator between 24 May 1999 until 12 November 1999. At the outset it was agreed between the parties that he had been paid wages of £420 per week, his average take-home pay being £1,366 per month. He was entitled to twenty days holiday per year; on leaving he would be entitled to accrued holiday pay.[2]By September 1999, the Appellant was in financial difficulties. On 1 September a meeting was called by the Appellant company with its workforce. The Appellant's director, Mr George Ellinas, told the staff that those who showed loyalty would receive an increase in their salary to more than compensate for the temporary loss of earning. The payments would be made when and, perhaps I should add, if the company raised the necessary funds.[3]On 12 November 1999 the Respondent left the company's employ, seeking employment or benefits where remuneration would be immediate in order to secure financial stability for his family. The Respondent submitted a claim for unlawful deduction from wages, for unpaid wages from 1 September to 12 November 1999, and holiday pay.[4]There was a hearing before an Employment Tribunal on 24 February 2000; the Tribunal heard evidence from both sides. The unanimous decision was that the Appellant had made unauthorised deductions from the Respondent's wages; the Appellant was ordered to pay £4,055 to the Respondent.[5]There was an appeal from that decision which had been sent to the parties on 10 March 2000. The Notice of Appeal was dated 21 April 2000. It raised various heads; the matter came before a panel of the Employment Appeal Tribunal on 4 October 2000, when the President ordered that the Chairman's Notes be provided and that the matter should come to a full hearing, really on the question of whether there was, as was then being urged, a variation of the contract, or, as was urged below for the Respondent, as to whether there was simply a non-payment of wages.[6]We have had the advantage this morning of hearing from Mr Livingstone, Counsel for the Appellant. He has urged on us that there was indeed a variation of the contract. We have carefully considered the notes of evidence with which we have been provided, and the Chairman's Notes. The Chairman in his letter accompanying the notes, draws to our attention that from the notes of evidence it was not suggested at the hearing there had been a termination of the Respondent's employment on 1 September, or that a new contract was entered into by virtue of the events of 1 September.[7]In our judgment, that was the evidence before the Employment Tribunal, on which it could properly reach the result found in the Decision. In these circumstances, with respect to the helpful submissions of Mr Livingstone, the Employment Tribunal's findings of fact were properly made, and the conclusion from them is one that they were entitled to make.[8]In those circumstances, this appeal fails and accordingly, while thanking the representatives for their submissions, we dismiss it.