MR EYA MENJOR v HARRISON CARD LTD [2001] UKEAT 1217_00_0903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1217_00_0903Case No Appeal No. EAT/1217/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR EYA MENJORAPPELLANTHARRISON CARD LTDRESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMR I EZEKIELMS G MILLSDate 9 March 2001
[1]APPEARANCES For the Appellant Miss R Crafnon (of Counsel) Appearing under the Employment Law Appeal Advice Scheme For the Respondent MISS RECORDER ELIZABETH SLADE QC This is the Preliminary Hearing of an appeal against the decision of an Employment Tribunal which dismissed Mr Menjor's claim for unfair dismissal. Miss Crafnon, who appears for Mr Menjor contends that the finding of the Tribunal that the Appellant resigned, is perverse.[2]The facts briefly stated are that Mr Menjor was employed by the Respondents as Head of Security from 16 November 1998. The Employment Tribunal found that the effective date of termination of his employment was 21 December 1999. The Employment Tribunal found that Mr Menjor was to start work at a new site on 26 October 1999 but on that day instead of reporting to work, he went to the Respondents' offices and spoke to a manager, Mr Barkley. Mr Barkley gave evidence which the Tribunal accepted, that on that date, 26 October 1999, Mr Menjor stated words of resignation in the course of a telephone conversation with Mr Barkley. The words were:- "I quit, you are all losers and yes, I resign. Your company is shit." The applicant had denied using those words but the Tribunal, in accepting the evidence of Mr Barkley, held that:
"In the light of subsequent events we consider Mr Barkley's version to be the more accurate one."
Also on that day, 26 October 1999, a letter was sent out by the Respondents under the managing director's name to Mr Menjor warning him about his conduct in failing to attend work and attending the office demanding to see him without an appointment.[3]Following these events, Mr Menjor went off sick and was paid 16 days statutory sick pay. No P45 and no letter, other than the 26 October letter to which we have referred, was sent by the Respondents to Mr Menjor at that time. On 21 December 1999 Mr Menjor went to the Respondents' premises where he had a heated discussion. In the course of his visit he wrote a note detailing complaints about the Respondents. He gave evidence to the Tribunal stating that he wrote:
"If I am not paid they might as well lay me off."
The Tribunal record that those words do not appear in the two pages of the note which were before it. However, the written note before the Tribunal stated that Mr Menjor had given his uniform to someone at the office and that he was looking forward to being sent all his benefit together with his P45. The Appellant gave evidence that that two days after leaving the note of 21 December he received his P45 and, he said, a letter dismissing him. That letter was not produced to the Tribunal by the Appellant and the Respondents denied that such a letter had been sent.[4]The Tribunal concluded, on balance, that the Appellant expressed some intention to end his employment during his telephone conversation with Mr Barkley on 26 October 1999, and they went on to conclude:
"We do not think that the Applicant has established that he was dismissed by the Respondent."
They stated:
"We find that through his telephone exchange with Mr Barkley, the return of his uniforms and the later note left with Mr Slade on 21 December, the Applicant terminated his employment."
The Tribunal went on to criticise the Respondents' handling of the situation but they considered that it did not amount to a dismissal of the Appellant.[5]It is to be noted that the P45 sent to the Appellant, which was a document attached to the originating application, gives as the leaving date of Mr Menjor, 26 November 1999. Clearly there was a conflict of evidence before the Employment Tribunal as to when and how the employment of Mr Menjor was terminated. It was a conflict for the Employment Tribunal to decide. The Employment Tribunal considered that there had been words of resignation spoken on 26 October 1999, a matter which they refer to in paragraph 12 of their decision and in their conclusions. Those conclusions are attacked as perverse in the draft amended grounds of appeal before us. It is contended that the Employment Tribunal's decision was perverse in that excessive weight was placed on the loss of the dismissal letter. Secondly, that the Tribunal erred in failing to attach weight to the fact that no P45 was sent during the time that the Appellant was away sick after 26 October 1999 and finally that no weight was given to the fact that the Respondents' letter of 26 October 1999 did not indicate the fact that Mr Menjor had resigned on 26 October 1999. In our view and in particular on the basis of the letter of 26 October 1999 in which Mr Menjor was being told by the managing director that he should have attended work and given a warning in respect of his failure to attend together with the other matters raised in the amended grounds of appeal, just about raise sufficient arguments on perversity to enable this appeal to go forward to a full hearing and we so direct.[6]Since this is a perversity appeal we order notes to be produced of evidence given of events from and including 26 October 1999 dealing with all matters relevant to the issue of whether there was a dismissal or a resignation. We consider this as listing category C and the appeal should be disposed of within 2 hours. Skeleton arguments should be lodged with the Employment Appeal Tribunal and exchanged not later than 14 days before the hearing of this appeal. We wish to register the fact that we have received great assistance from the ELAAS representative, Miss Crafnon who has appeared for the Appellant Mr Menjor.