MR EYA MENJOR v HARRISON CARD LTD [2001] UKEAT 1217_00_2610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1217_00_2610Case No Appeal No. EAT/1217/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR EYA MENJORAPPELLANTHARRISON CARD LTDRESPONDENT
Before
His Honour Judge J R ReidDate 26 October 2001
[1]APPEARANCES For the Appellant MR E MENJOR (The Appellant in person) For the Respondent MR J ELLIOTT (Representative) Harrison Card Ltd (t/a Attlaw Security) 40 Keys Park Parmwell Way Peterborough PE14SL HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of an Employment Tribunal held at London South. There were meetings on 16 May and 14 June 2000 and a reserved decision was given on 21 August 2000. The claim was by Mr Menjor, the Appellant here, that he had been unfairly dismissed by Harrison Card Ltd, his employer, which is a security company. The claim was dismissed on the basis that Mr Menjor had not been dismissed but had resigned. The only ground of appeal is that the decision was perverse.[2]The facts as found are that the claimant was born in May 1971. He was employed by the Applicant for a period in, at least, 1998 and 1999. There was a suggestion that his first employment by the Respondent was 16 November 1998. He had, on the Tribunal's findings, four years relevant continuous employment by virtue of rights transferred under the Transfer of Employment Regulations 1981 . According to the Respondents he was paid until 15 November and last worked on 27 October. That appears to be a date which is in doubt.[3]What happened, put fairly shortly, was this, that Mr Menjor was, as he described himself, head of security, looking after the Iceland frozen food stores at Penge. He was in fact the only security guard there. Following a change of manager there, there were problems between Mr Menjor and the new manager, a Mr Chan, in which there were suggestions that Mr Chan was racially abusive to Mr Menjor. Mr Menjor made a complaint about it. The result of the complaint was that Mr Chan was moved and replaced by a Mr Fowler. It is said, according to the findings, that the claim by Mr Menjor of racism against Mr Chan was found to be unsubstantiated. Following this Mr Fowler fell out with the Applicant as well and Mr Menjor was then moved. He was redeployed around October 1999 (again neither side seemed to be clear about the exact date) to the Iceland store at Brixton. There again there were problems and it was decided that Mr Menjor should move again to the Tooting store where he was due to start on 26 October. On 26 October he did not report to work. Instead, on the findings of the Tribunal, he arrived unannounced at the Respondent's office and demanded to see Mr Crump, the managing director, who was away in Scotland. He then spoke to a Mr Barkley who was also away from the office that day but was available on the telephone. There was a difference of evidence between the two witnesses, Mr Barkley on the one hand, and Mr Menjor on the other hand. The Tribunal found, and this was a finding with which we could not interfere, that Mr Menjor was abusive and said to Mr Barkley:
"I quit, you are all losers and yes, I resign. Your company is shit."
The result of that exchange which, as the Tribunal found, took place, was that on 26 October, the same day, a letter was sent out under Mr Crump's name warning him, Mr Menjor, about his conduct in failing to attend work and in attending the office and demanding to see Mr Crump without an appointment.[4]The finding of the Tribunal appears to be that Mr Menjor did not thereafter return to work. He told us that in fact he did work one more day, on 28 th , and the suggestion that he may have worked one other day, namely, the 27 th , appears from the Respondent's ET3. Whatever the position in relation to that, Mr Menjor became unwell and provided a medical certificate, according to the Tribunal, certifying him as unfit for a period of one week. He did not return to work after the week and was paid sixteen days statutory sick pay. The suggestion is that there were no further medical certificates following that date. The Chairman's note of evidence indicates that there was only one sick note and that it went up to 16 November. We have seen a self certifying sick note dated 16 th and valid until 16 th . There is therefore some uncertainty about precisely what the position was in relation to sick notes.[5]Thereafter, on the findings of the Tribunal, Mr Menjor visited the Respondent's offices at least twice during December and the finding is that on one occasion he returned items of uniform. As to this there had been a difference of evidence. Mr Menjor saying that he was merely exchanging uniforms, which was something that he did from time to time, and on the other side, Mr Barkley asserting that he had, far from exchanging uniforms, handed his uniform in. On the last occasion when he attended there is a finding of fact that he spoke to Mr Ben Slade and wrote a note which appeared in the bundle before the Tribunal which contained these words:
"And as from henceforth I have given my uniform to Clare at the office and I am looking forward to you sending all my benefit which you owed me together with my P45. Also, I have sent a latter of evidence to Iceland office – Deeside – flintshire and I will see you and your company at the industrial tribunal and good luck and I hope Attlaw success. Thanks yours ever."
In his evidence to the Tribunal, the Tribunal note, that the Applicant stated that he wrote:
"If I am not paid they might as well lay me off." but those words do not appear in the two pages before the Tribunal, although they note that Mr Menjor does refer to the question of payment having been stopped and his stress and unhappiness as a result of: "
Bill Barkley acting unprofessionally." Mr Menjor's evidence was that two days after leaving that note on 21 December he received a P45 and a letter dismissing him. The Respondent denies that any such letter was sent. Mr Menjor was unable to produce the dismissal letter and the Tribunal made a finding of fact: "In any event we are unable to accept that the Applicant was dismissed by letter as alleged by the Applicant.[6]When the Tribunal took those matters together they expressed some reservations about the way in which the company had dealt with the matter. Mr Elliott who has appeared on behalf of the company here today accepts that those reservations were well founded. The first problem from the Tribunal's point of view was to know what the position was after 26 October because there was a finding of fact that Mr Menjor had used words which might amount to a resignation, but equally the letter written by the company did not indicate that they understood Mr Menjor to have resigned. Thereafter, on the Tribunal's finding, there was a handing in of the uniform and the fact that there had been a handing in of the uniform was supported by the passage in the letter of 21 December:
"I have given my uniform to Clare at the office."
There was then the sending of the P45 without a letter of dismissal which the Tribunal took to suggest that there was not a dismissal but a reaction to a resignation, but there was the oddity that payment was made up to 26 November, which appears to have been the date at which statutory sick pay ceased to be paid. Confronted with this messy combination of circumstances the Tribunal correctly directed themselves that they had to determine who had terminated the employment. They made a finding of fact:
"We do not think that the Applicant has established that he was dismissed by the Respondent. 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."
[7]The question for us is not whether we would have come to the same conclusion but whether applying the well known test, when we read the findings of fact, and look at the notes of evidence, we come to the conclusion that the decision was perverse, in the sense that looking at it we say 'Goodness, that decision is obviously wrong'. It is not for us to say whether, if we had heard the case, we would necessarily have come to the same conclusion. What we have to say is whether, when we look at the evidence and the conclusions of the Tribunal together, we come to the conclusion that the Tribunal simply and obviously got it wrong. Doing the best we can, we do not think that we can express so positive a view. This was a case where the evidence was messy and far from clear. The Tribunal had the advantage of seeing the witnesses and of forming their view as to which of the witnesses and what of those witnesses' evidence they accepted.[8]We cannot say that the decision was perverse. It follows from that that the appeal must be dismissed. I reiterate, it is not for this Tribunal to retry the case, but simply to see whether the decision reached by the Tribunal on the evidence that the Tribunal had, was manifestly perverse. That is not a conclusion which we can reach. It follows therefore that the appeal is dismissed.