MS D ORKIBI v BALSARA & CO [2000] UKEAT 619_99_0906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 619_99_0906Case No Appeal No. EAT/619/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D ORKIBIAPPELLANTBALSARA & CORESPONDENT
Before
Mr Justice LindsayDate 9 June 2000
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Ms Orkibi against Balsara & Co. From 27 July 1998 to 18 September 1998 Ms Orkibi was employed by Balsara & Co, the Respondents, a firm of Solicitors. On 23 October 1998 she presented her IT1 for unpaid wages, holiday pay, pay in lieu of notice and the withholding from her of her P45. She expanded her claim in an annexe to the IT1 but in that made no direct reference to overtime pay, nor did she give any details as to the holiday pay claimed at that stage, but she did claim two months pay in lieu of notice.[2]On 21 January 1999 there was a directions hearing and Ms Orkibi was permitted to enlarge her claim to add further reference to holiday pay and to make a claim for overtime. Balsara & Co counter-claimed for loss suffered from allegedly poor work done by Ms Orkibi.[3]On 17 February 1999 there was a hearing at London (North) under the chairmanship of Ms S.T. Gill. It was largely a victory for Ms Orkibi. The conclusion, which was unanimous, was that the Respondents, Balsara, were ordered to pay Ms Orkibi £1,024.56 for unpaid wages and £365.40 damages for failure to give one week's notice in breach of contract. The Respondents' counter claim was dismissed.[4]Amongst the findings of fact made by the Tribunal are these. Thus in paragraph 3 one finds:
"3. …After a few days she was offered a permanent job by Mr Patel the principal partner at the Respondents' firm. There was a dispute as to the terms of employment agreed between Mr Patel and Ms Orkibi. Having heard both give evidence the Tribunal prefer the account given by Mr Patel and find that the Applicant was employed on a two months trial period with only one week's notice on either side and not the two months claimed by Mr Orkibi. There was no contractual term in respect of overtime pay. No overtime had been paid to staff in the Respondents' firm. The arrangement was that if they worked late they would take time off in lieu. The terms included four weeks' holiday pay but no entitlement to holiday pay arose during the probationary period of two months."
That is one set of facts found and then, a little later the Tribunal said:
"4. … Having heard Mr Patel's evidence and taking into account that evidence by the Applicant the Tribunal take the view that there was never any term of her employment that she would be paid in respect of overtime."
And a little further on:
"Under these circumstances the claim for overtime is dismissed. In respect of holiday pay the Tribunal find that no entitlement to holiday pay arose during her period of employment."
[5]On 6 April 1999 a Notice of Appeal was lodged on behalf of Ms Orkibi and it raises, as it seems to us, some five points. The first is that the Tribunal erred in law in not awarding overtime but it is, of course, well known that we can only deal with points of law. We cannot deal with points merely of fact. Parliament has set up a system under which the Employment Tribunals are the masters of fact and here the Tribunal found, as a fact, that there was no contractual term providing for overtime money, rather , as we have seen from the citation that we have just made, that an employee could instead have time off in lieu for the extra hours worked. That is a finding of fact which we have no power to sidestep or to overturn. Evidence was given to support that conclusion and that evidence was accepted by the Tribunal and, unfortunately from Ms Orkibi's point of view, that is an end of the matter.[6]A second ground touched on by Ms Orkibi is that the company, Balsara & Co were racist, cruel, abusive and were thieves. Those are new complaints, outside the ambit of her IT1, and they are not the sort of points that can be raised for the first time on appeal and no error of law exists in respect of such matters.[7]Thirdly, Ms Orkibi feels that a month's wages in lieu of notice would have been appropriate, not merely the week's wages that she was actually awarded. She had in fact claimed two months in lieu of notice. On this subject the Tribunal heard evidence. It concluded that Ms Orkibi had been on a two months' trial period and that, at any rate during that two months' trial period, only one week's notice was required. Again, that is a finding of fact and, again, unfortunately from Ms Orkibi's point of view, it cannot be said that there was no evidence to support it and it is, unfortunately from her point of view, unassailable.[8]The fourth point is that she says that she should have been awarded a further three weeks' pay in lieu of notice, but that point fails for the same reason. There is an unassailable finding of fact that only one week in lieu of notice was the appropriate provision of the contract. Mr Patel's evidence was preferred. Ms Orkibi says that he was lying but it is not for us to try and re-judge whether Mr Patel was lying; that, as we mentioned earlier, has been entrusted by Parliament to the Tribunal below. They have to decide in all the circumstances, taking into account the evidence that they hear and the demeanour of witnesses which they observe, who is to be believed? Unfortunately from Ms Orkibi's point of view, it was Mr Patel that was believed. If he was lying, well, so be it; unfortunately, we have no ability to deal with an allegation of that kind because that would be an allegation as to fact rather than as to law. It really avails her nothing to say that Mr Patel lied. His evidence was preferred. It is for the Tribunal to decide who to prefer. That is part of their job and no error of law arises under this part of her complaint.[9]Then Ms Orkibi complains that her Solicitor, Miss Morrow, left the hearing at 12 noon and that she was left to represent herself. However, the Chairman has made it quite plain since in her observations that, first of all, Miss Morrow apologised upon her leaving; there was no question of her being driven out, so to speak. Secondly, that there was no request for an adjournment on account of her leaving. Thirdly, that before Miss Morrow had left she had already made her submissions on the claim and had represented Ms Orkibi throughout the submissions made on the claim and that all that remained after Miss Morrow left were the questions of the counter-claim made by Balsara and Balsara's application for costs. Both of those were issues which Ms Orkibi won. In other words, she suffered no detriment from her Solicitor's absence. Again, as it seems to us, there is no point of law in Ms Orkibi's complaint.[10]Ms Orkibi feels very agitated and upset about the failure of her claim and we can see that she is truly upset and aggrieved but, of course, our powers are limited, just as any other tribunals are, by the provisions which set us up. We can only deal with points of law and, limiting ourselves to points of law, we find, unfortunately from Ms Orkibi's point of view, no error of law in the Tribunal's Decision and accordingly we must dismiss the appeal even at this preliminary stage.