MR A J BOWIE v THE TRANSPORT & GENERAL WORKERS UNION [2001] UKEAT 1117_00_1402

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1117_00_1402Case No Appeal No. EAT/1117/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A J BOWIEAPPELLANTTHE TRANSPORT & GENERAL WORKERS UNIONRESPONDENT
Before
His Honour Judge Peter Clark Mr D J JenkinsDate 14 February 2001
[1]APPEARANCES For the Appellant The Appellant in person JUDGE PETER CLARK At the outset of this hearing we pointed out to Mr Bowie that Mr Bill Morris, the General Secretary of the Transport & General Workers Union and a material witness before the Employment Tribunal against whose decision this appeal is brought, is a member of the EAT panel and is consequently known personally to each of us. We have not, of course, discussed this case with him, either individually or collectively. Mr Bowie has no objection to our hearing this appeal.[2]At all relevant times the Appellant was a member of the Respondent union, by whom he was employed as a Regional Industrial Organiser from 11 January 1988 until his summary dismissal by a letter dated 20 October 1999.[3]Following that dismissal he presented an Originating Application to the Employment Tribunal on 26 October complaining of unfair dismissal. He put his complaint in two ways. First he contended that his dismissal was for an inadmissible reason under section 103 A of the Employment Rights Act 1996 , namely that the reason or principal reason for dismissal was that he had made a protected disclosure within the meaning of section 43 A - L of the Act, the whistle blowing provisions. If so, then the dismissal was automatically unfair. Alternatively he contended that if the reason for dismissal was a potentially fair reason, then the dismissal was unfair under the reasonableness provisions of section 98(4) of the Act.[4]The claim was resisted and by a reserved decision by a Tribunal sitting at Liverpool under the Chairmanship of Miss E R Donnelly, promulgated with Extended Reasons on 28 July 2000, following a hearing in March and a further day's deliberation in Chambers on 25 May, the Tribunal dismissed his application. It is against that decision that this appeal is brought.[5]The Tribunal found the following material facts. The Appellant was based at the Respondent's Accrington office. He belong to Branch 6/62. In 1998 he stood for election to the union post of Deputy General Secretary. In his election address he alleged financial malpractice within the union. He was unsuccessful in the election.[6]Subsequently his allegations were investigated by external agencies including the Certification Officer, external auditors, the Commissioner for the Rights of Trade Union Members and Members of Parliament. They were, according to the union, found not to be established.[7]The Tribunal accepted the Appellant's evidence that after the election he had been told by a General Executive Council member that "they" were going to get him after the dust had settled. The Appellant understood "they" to include the General Secretary, Mr Morris, and the Regional Secretary for his region, Mr McCall.[8]On 1 February 1999 Mr McCall met with the Appellant and required him to produce evidence in support of his allegations of malpractice within the union. In due course Mr McCall concluded that the allegations could not have been made in good faith and as a result wrote to Mr Morris on 3 March 1997, expressing his view that the allegations made by the Appellant constituted gross misconduct.[9]Meanwhile, on 8 February 1999 Mr Bowie had gone on sick leave, never to return to work for the Respondent. On 25 February Branch 6/62 was suspended pending enquiries into its activities, not least the apparent state of its mailing list, which extended to only 21 of the branch's 555 members. It was decided that the membership of the branch would be in part dispersed to other branches and the remaining members merged into another branch.[10]That proposal was challenged by the Appellant in High Court injunction proceedings which were subsequently withdrawn.[11]It seems that prior to the union election for Deputy General Secretary, the Appellant had been promised £100 by Branch 6/62, as a contribution to his campaign expenses. The branch had tendered a cheque for that amount before the election but the Appellant had not cashed it before the branch's bank account was suspended in February 1999, along with the branch itself.[12]In August 1999 the Appellant returned from holiday and finding himself short of money, he helped himself to £100 in cash from the members' contributions box, the Branch Treasurer having declined to issue a fresh cheque. He then drew a cheque for £100 on the suspended branch account, signing it himself and forwarded it to the Regional Finance Officer, Ms Withers. In a covering letter he said that he had cashed the cheque by removing funds from the contribution box. The cheque required two authorised signatures, but he did not obtain a second signature.[13]Mr Morris was informed of the Appellant's actions in respect of the £100 by Mr McCall at the Brighton TUC on 16 September 1999. In these circumstances he instructed the Appellant to attend a disciplinary hearing in respect of the £100, no action having been taken on Mr McCall's earlier recommendation made on 3 March 1997 due to the Appellant's sick absence.[14]A disciplinary hearing was arranged for 7 October, but the Appellant's solicitors wrote asking for a postponement on the basis of his continuing illness. Mr Morris noted that the Appellant had been well enough to instruct solicitors in connection with the aborted High Court proceedings. He decided that the hearing should go ahead, but in order to give the Appellant time to prepare, he postponed the hearing until 18 October.[15]There was then no agreed disciplinary procedure in respect of full-time officers, and the Tribunal found that the Respondent applied the procedures recommended in the ACAS Code of Practice.[16]The disciplinary hearing before Mr Morris took place on 18 October. Present were Mr McCall and Ms Withers. The Appellant did not attend. Having considered the evidence Mr Morris found that the Appellant was guilty of gross misconduct in respect of his appropriation of the £100 without authority. He regarded that as a gross breach of trust and decided to summarily dismiss the Appellant. He communicated that decision to him by a letter dated 20 October.[17]Against that decision the Appellant appealed to a panel of three General Executive Council members. He attended the appeal hearing held on 9 December, with the former Branch Treasurer, Mr Cramsie. Following a hearing at which both the Appellant and Mr Cramsie gave their evidence the panel dismissed the appeal.[18]On these facts, the first question for the Tribunal was what was the reason or principal reason for the dismissal. Was it:(a) that he had made allegations of malpractice against the Respondent, which Mr McCall had considered in March amounted to gross misconduct;(b) his having taken the £100 from the members' contribution box. Reason (a) was a potentially inadmissible reason, subject to argument as to whether his allegations were in fact made in good faith and were protected disclosures within the meaning of the 1996 Act. Reason (b) was a potentially fair reason relating to the Appellant's conduct. The Tribunal found that reason (b) was the true reason for dismissal. They rejected reason (a) and consequently dismissed the claim under section 103A of the Act.[19]The Tribunal went on to find that the dismissal for the conduct reason was fair. They accepted that the disciplinary hearing conducted by Mr Morris in the absence of the Appellant was fair, bearing in mind that the Appellant was well enough to conduct High Court proceedings and, shortly after the Morris disciplinary, an Interim Relief Application in these proceedings heard before a different Chairman on 22 November 1999. If they were wrong about that they further found that the internal appeal hearing cured any procedural defect at the disciplinary hearing stage.[20]The Appellant's actions in taking the £100, in the circumstances described, struck at the necessary mutual trust and confidence implicit in the employment relationship. Dismissal, we infer from the Tribunal's findings, fell within the range of reasonable responses open to this employer.[21]Before the Employment Tribunal Mr Bowie was represented by Counsel. In this appeal he has been assisted by a friend, Mr A Hughes LLB (Hons) who settled the Notice of Appeal and has provided a Skeleton Argument by a letter dated 17 January 2001. Mr Hughes is unable to represent the Appellant today and he appears in person We note from the Interim Relief decision that he is an experienced advocate before Employment Tribunals in his former role with the Respondent, and he tells us that on one occasion he has appeared before the EAT. His presentation was both fluent and clear.[22]He takes four points in this appeal: The first is that the Tribunal did not properly hear the case that he wished to advance. He maintains that he was dismissed for standing for Deputy General Secretary in the election on a platform which made complaints about malpractice within the union. He submits that it is only if the merits of those complaints are considered properly by the Tribunal, that they can arrive at a conclusion as to what was the real reason for his dismissal.[23]We think that submission is unfair to the way in which the Tribunal approached this case. It is quite clear to us, from reading their reasons as a whole, that they had in mind the Appellant's case that the real reason for his dismissal was his allegation of malpractice, in the run-up to the internal election, and that the incident over the £100 was merely a convenient peg on which to hang his dismissal, in circumstances where, as the Tribunal accepted as a matter of fact, he had been told by a member of the GEC that they were out to get him.[24]That case was plainly advanced before the Tribunal, indeed Mr Bowie says that the detail was contained in the witness statement which he read out during the course of the hearing. We also have in mind the submissions made on behalf of both parties which are summarised in the Tribunal's Reasons at paragraphs 20 and 21. Miss Connolly, on behalf of the Applicant submitted that the real reason for dismissal was the inadmissible reason of making allegations of corruption within the Respondent, which she submitted were relevant disclosures within section 43 A - L of the Act.[25]On the other hand, Counsel for the union submitted that the allegations had not been made in good faith by the Appellant, and consequently, this was not a case in which protected disclosures had been made out. The Tribunal asked themselves, as a matter of fact, what was the real reason for dismissal. They accepted the evidence of Mr Morris, and Mr Smith, the Chairman of the Appeal Panel that the sole reason related to the £100 and was not in any way connected with the earlier investigation by Mr McCall, and the allegations of corruption made by the Appellant. It seems to us that that was quintessentially a factual issue for the Tribunal of fact to decide.[26]Secondly, he complains that no reasonable Tribunal could conclude that his dismissal was fair in circumstances where he was absent, through illness, from the disciplinary hearing held by Mr Morris on 18 October 1999. He has drawn to our attention a medical report prepared by Dr Fiona Page, a Consultant Occupational Physician, to whom he was referred by the union. That report was dated 8 June 1999. In that report she felt unable to predict when he would be fit to return to work, or indeed to attend a disciplinary hearing. He makes the point that whereas the union was prepared to wait for months for him to recover his health, in order to discipline him over the McCall recommendation, the union moved swiftly once the £100 matter was brought to Mr Morris's attention at the Trades Union Congress in Brighton.[27]So far as that submission is concerned we think first, that the Tribunal was entitled to conclude, bearing in mind that the Appellant had instructed solicitors and was the claimant in the aborted High Court proceedings, that if he was fit enough to take a part in that venture, then he was fit to attend Mr Morris's disciplinary hearing in October.[28]Further, they point out that the Appellant was able to attend the Interim Relief hearing before a Chairman on 22 November 1999 in these proceedings and, indeed, he attended the internal appeal hearing on 9 December. But even if that submission were well founded, the Tribunal went on to find that any defect at the disciplinary stage was cured by the internal appeal hearing before the three GEC member panel. That was, we are satisfied, in the nature of a re-hearing and consequently the Tribunal, in our judgment, were entitled to come to the conclusion that there was no procedural unfairness in the dismissal.[29]The third point is a point on contractual disciplinary procedure. Mr Bowie, in his Skeleton Argument prepared by Mr Hughes, includes a copy of the EAT decision in Cabaj v Westminster City Council [1994] IRLR 530 . In the course of submissions he acknowledged that that decision had not been upheld by the Court of Appeal [1996] IRLR 399 .[30]In fact, and in fairness to Mr Bowie, our understanding of the position in that case is that the EAT's conclusion that the employer's failure to follow a provision in the contractual disciplinary code requiring a three member panel to hear Mr Cabaj's appeal, when only two, in fact sat, did amount to a potential breach of natural justice.[31]However, whereas the EAT were prepared to reverse the Employment Appeal Tribunal's finding of fair dismissal, the Court of Appeal directed that the matter should be remitted to a fresh Tribunal for re-hearing.[32]In this case Mr Bowie submits that the contractual position was covered by union rules, that being a contract between the union and its members, including the Appellant, and he draws attention to Rule 15(3) and in particular this passage:
"It (the General Executive Council) shall have power to suspend and/or dismiss any officer, but any officer who is dismissed shall, by giving notice in writing to the General Secretary within seven days, have a right of appeal to the Appeals Committee, or, at the officer's option, to the next Biennial Delegate Conference. This right shall not, however, be enjoyed by any officer who is dismissed for attempting to disrupt the organisation by advocating, or threatening, secession or creating a rival organisation, or by any officer who is dismissed for misappropriating Union funds. Until the hearing of such appeal the decision of the Council shall be binding."
It is submitted by Mr Bowie that the union were in breach of that contractual provision, and in particular, he was not given the opportunity to put his case to the next Biennial Delegate Conference, which would have involved being judged by some eight hundred members, as opposed to a panel of three members of the General Executive Council.[33]We have two difficulties with that submission. The first is that it does not appear to have been made below; looking at the summary of Miss Connolly's submissions at paragraph 20 of the Tribunal's Reasons. Mr Bowie tells us he has no recollection as to whether or not the point was taken below. In these circumstances we are not satisfied that it was taken, and as Mr Bowie acknowledges, based on the line of authority in this Tribunal, affirmed by the Court of Appeal in Jones v The Governing Body of Burdett Coutts School [ 1998] IRLR 521, i n the absence of exceptional circumstances, we shall not allow a new point to be taken for the first time on appeal. No such exceptional circumstances have been advanced.[34]However, in deference to the argument advanced by Mr Bowie, we should say that had we allowed the point to be taken, we would have regarded it as a bad one. The rule relied upon, specifically excludes the right of appeal to the Appeals Committee or to the Biennial Delegate Conference to any officer who was dismissed for misappropriating union funds. That was, effectively, the basis on which the union declared that they had decided he should be dismissed, and that was the reason which the Tribunal found as a fact was the true reason[35]The fourth and final point taken by Mr Bowie is that he was disciplined by people who could not be expected to be fair to him, and consequently no reasonable Tribunal could conclude that the dismissal was fair. He first mentioned Mr McCall, but accepts that Mr McCall did not impose any disciplinary sanction on him. He included the General Secretary, Mr Morris, in those responsible for malpractice within the union and therefore the argument must be that Mr Morris was biased against him when he conducted the disciplinary hearing, and reached his conclusion.[36]But we turn to the Tribunal's finding that any procedural irregularity at the dismissal stage was cured on appeal. So far as the three GEC members who sat on the appeal panel are concerned, he, Mr Bowie, had made no allegations of impropriety against them personally, and the member of the GEC, who said that "they were out to get him", was not sitting on that panel. In these circumstances, we cannot say that the Tribunal's finding, that there was no procedural unfairness, is a perverse finding as a matter of law.[37]It follows, having considered the four Grounds of Appeal advanced by Mr Bowie, that we reject them and consequently must reject this appeal at this preliminary hearing stage. We should add only this: it is quite clear to us that he has a strongly held belief that his dismissal was engineered as a result of the allegations of malpractice which he made. That case was considered and rejected on its facts by the Employment Tribunal. We are not a fact-finding Tribunal. In these circumstances, this appeal must be dismissed.