MR P METANIE v TELEGAN GAS MONITORING [2000] UKEAT 572_99_2111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 572_99_2111Case No Appeal No. EAT/572/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P METANIEAPPELLANTTELEGAN GAS MONITORINGRESPONDENT
Before
His Honour Judge H Wilson Ms J Drake Mrs J M MatthiasDate 21 November 2000
In this appeal the appellant takes a preliminary point because of what he said is the failure of the respondent to conform with order given by this tribunal when it heard the preliminary hearing in December 1999. The order dated 20th October 1999 directed that skeleton arguments should be filed and exchanged between the parties not less than 14 days before the date fixed for the full hearing. The parties that order is directed to are Mr Metanie himself because he is appearing in person and to Messrs Burstows Solicitors for the respondent. The solicitors for the respondent sent their skeleton argument to the tribunal by facsimile on 6th November 2000 and to Mr Metanie at the address which they had for him on the same day. Mr Metanie had in fact moved and notified that change of address on 2nd November 2000, but he sent notification of his change of address to the lay clients and not to their solicitors. The order, however, quite clearly is directed to the solicitors for the lay client. The upshot was that Mr Metanie put in an application under Rule 26 that this tribunal should debar the respondents from taking further part in the proceedings because of their failure to comply with the order of October 1999 with regard to service of skeleton arguments. He concedes quite frankly that he received a copy of the skeleton argument on the 15th or 16th November and he has therefore had five or six days during which to consider it. He does not suggest that he is prejudiced in any way by the fact that there has been a mix up.We are bound to say that, although the requirement about skeleton arguments is one where orders are frequently made and very frequently not honoured, that rarely if ever results in an application under Rule 26, but in a case of prejudice that rule would be apposite. We are satisfied however that there is no prejudice here and we are also not at all satisfied that Mr Metanie has not contributed to the situation by his own behaviour. However that may be, we refuse this application in the exercise of our discretion and we direct that the hearing proceed as before.

JUDGE WILSON :

This has been the full hearing of the appellant's appeal against the decision of the Employment Tribunal sitting at London (North) which found that the appellant had not been unfairly dismissed by the respondent company.The matter went to a preliminary hearing and Judge Altman and his colleagues on that occasion ruled that the appeal should proceed on two grounds only, namely as to the finding that consultation was utterly futile and as to the finding that commission was at the rate of 10%. On those two points the matter was permitted to go forward for full argument and those are the matters with which we have been concerned today.Mr Metanie has appeared on his own behalf and the respondent company has been represented by Ms Russell.Mr Metanie complains that there was no consultation before his dismissal on grounds of redundancy. He questions the redundancy itself, but he says that if there had been consultation he would have jumped at the opportunity to go to Crawley, which is where the company was relocating.So far as the commission point is concerned, Mr Metanie says that the documents relied on by the tribunal were forged and that therefore the decision is flawed in that respect as well.Ms Russell on behalf of the respondent admits that there was a lack of consultation, but submits that the case, on the facts known to the employers at the time the decision was made, brings it into that realm of exceptions to the general rule which make the decision the reasonable.We find that on his own letter dated 2nd July 1997 the appellant had known about what was going on from at least April. We are confirmed in that view by what is set out in Mr Breen's witness statement which was put before us by the appellant himself, and what is contained in Mr Turner's statement. Mr Metanie's letter was written to Mr Turner in response to Mr Turner's letter of 27th June and it says that:
"It is not regrettable that my position with Research Engineers ended simply because it was expected to happen from the end of April."
The letter goes on then to deal with a whole lot of other matters which are irrelevant both to this case and the appeal.So far as the witness statements which were before the tribunal were concerned, in paragraph 3 Mr Breen says:
"The Applicant advised me that he did not wish to transfer to Crawley although he did ask me to send him an application form for the job of Development Engineer. The Applicant contacted me on 6 June asking for such information and I wrote to him on 19 June attaching the job specification and stating that I would discuss the matter with him when I was next at the Shoreditch plant."
Mr Turner's witness statement in paragraphs 6 and 7 says that:
"The Applicant was offered the position of repair technician at the Crawley site which was the same position in the service department that he had held at Shoreditch. The position was for a reduced salary partly because it did not include London weighting and also because the Applicant had received a salary at the Shoreditch plant which was not a market rate salary for a repair technician. The skill level of most of the employees of the Shoreditch site was higher than that which was actually required to complete their duties in a satisfactory manner. In June 1997 there were no other suitable alternative vacancies at Crawley or Shoreditch to offer the Applicant.
The former Managing Director of the Respondent company, Kevin Breen spoke to the Applicant on a number of occasions about a possible transfer to Crawley but the Applicant stated that he was not interested in this. The Applicant did however request details of a vacancy for a development engineer which was a position available at Crawley and Kevin Breen forward the job specification to the Applicant. The Applicant however had no development engineer experience with the Respondent company and I was not aware that he had any experience for such a role from any former employment he had. Current engineers in the development department at Crawley are electrical engineers, chemists, optics and infra red experts. The Applicant had no such experience in these areas at the Respondent company and at no time during his employment had be expressed a wish to become involved in a development engineering role."Those two witnesses were amongst those who gave evidence on behalf of the respondent and the Employment Tribunal said that it preferred the evidence of the respondent's witnesses to the appellant's. That is a view about the facts which it is not for us to question.The Employment Tribunal found as well, as indeed we do, that those matters of knowledge to which I have referred were all within the respondent's grasp at the time of the decision to dismiss. The Employment Tribunal found, in the light of those facts, that the respondent had acted reasonably. In our judgment their reasoning was within the Polkey principle. In Polkey vAE Dayton Services Ltd [1987] IRLR 503 HL at paragraph 5 Lord Mackay of Clashfern said that:
"If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code. Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair. Whether in any particular case it did so is a matter for the Industrial Tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee."
In our judgment applying that part of Lord Mackay's judgment to the facts as known to this Employment Tribunal, we find that their reasoning was within that expression of principle because in the light of the facts known to the respondent at the time of dismissal consultation would have been useless.So far as commission is concerned, the appellant claims that the rate should have been 20%. The respondent says that the agreement was for it to be at 10% and points to two documents in the bundle, they are also in the appellant's bundle, one of which is a letter authorising payment on an invoice which clearly is, as a matter of arithmetic, 10%.The appellant says to us today, as indeed he raised at the preliminary hearing, that those documents are forgeries. But that was not raised before the Employment Tribunal and we are helped by the provision of the Chairman's Notes concerning commission. The Chairman's Note states that Mr Kevin Breen's statement was read to the tribunal and it acknowledged that Mr Metanie had received commission in respect of Romanian orders but it was silent on the terms. Mr Peter Turner, whose witness statement was also before the tribunal, was sworn and read that statement. In examination in chief he stated that the commission payable and agreed was 10% of the sales value and it was paid by cheque. The Chairman notes that the appellant did not ask Mr Turner questions concerning the commission rates. When it came to the appellant's evidence he said that he was offered three scales of payment and agreed to 20% being the only practicable method. He said that that was agreed verbally. He stated that the respondent refused to pay the correct commission. Under cross examination he appellant was shown those documents which showed commission payable at 10% and suggested that the 10% paid there was the difference between the agreed price and the selling list price. It was suggested to him that there was no other agreement that a 10% commission and in answer to that he said he had nothing to say. The Chairman's note concludes:
"I have a checked my notes and there is no suggestion by the Applicant, in evidence, that any of the documents were forged. All the documents exhibited confirmed that that Applicant was paid a commission of 10 per cent."
In the light of that evidence, we turn to the expression of their decision concerning unfair dismissal and breach of contract by the tribunal. We find that their findings were reasonable. We note that in the case of Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 EAT at paragraph 33 that, when an appeal is based on the grounds of perversity:
"An appeal should not be allowed on this ground simply because the Employment Appeal Tribunal disagrees with the Industrial Tribunal as to the justice of the result, the merits of the case or the interpretation of the facts. This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is very clearly wrong' or 'must be wrong' or 'is plainly wrong' or 'is not a permissible option' or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic'. That variety of phraseology is taken from a number of well-known cases which describe the circumstances in which this Tribunal (and higher courts) have characterised perversity. The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. …"
So far as the appellant has urged us to find that this decision was perverse we find that it falls very far short of the necessary ingredients to justify such a finding.We find that the decision of the Employment Tribunal was reasonable and accordingly this appeal must fail.