MR A O FADIPE v FAIRSTAFF AGENCY LTD [2001] UKEAT 208_01_2603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 208_01_2603Case No Appeal No EAT/208/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A O FADIPEAPPELLANTFAIRSTAFF AGENCY LTDRESPONDENT
Before
Mr Justice HooperLord Davies of CoityDate 26 March 2001
[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE HOOPER This is an appeal against a decision of the Employment Tribunal at London Central, unanimously dismissing the Appellant's complaints of unlawful deduction from wages and unfair dismissal.[2]The Grounds of Appeal include at paragraph 6 the following:
"6 The appalling and deplorable behaviour of the Employment Tribunal in its handling of this case shows beyond any doubt, that the Tribunal had determined beforehand, to take sides with the Respondent, irrespective of the amount evidence or lack of evidence provided during the hearing. The Tribunal by its behaviour attempted to cover up the obvious perjury committed by the two witnesses of the Respondent, that is why there is no mention of this perjury allegation anywhere within the Extended Reasons for its decision, even though this was vigorously pointed out by me, throughout the hearing. The behaviour of the Tribunal and its attempt to distort and cover up the facts of the case, amount to a deliberate attempt to pervert the course of justice, and it is obvious that no responsible, reasonable and unbiased Tribunal would act in this way, nor give such a perverse decision, when faced with the same facts of the case."
[3]Having regard to that ground, on 12 March of this year, the Registrar sent a letter to the Appellant stating:
"If you wish to pursue the allegations of bias and improper conduct on the part of the Employment Tribunal which you make in your Notice of Appeal, you must swear and file an affidavit in support in accordance with paragraph 9 of the Practice Direction. This should now be done as soon as possible."
[4]At the outset of the hearing, we asked the Appellant about that. He said that he had not done it and that it was not in his interest to do it. He said that he "could" do it in due course. That not having been done, we dismiss the appeal insofar as that matter is concerned.[5]As to the other grounds raised by the Appellant, this is a preliminary hearing and it is necessary for us to decide whether there are arguable grounds such that there should be an Order for a full hearing.[6]We deal first of all with the Ground of Appeal that concerns the alleged unlawful deduction of wages. The Appellant entered into an arrangement with the Respondent, in accordance with which the Respondent would seek to obtain suitable assignments for him in the medical field.[7]His first assignment started on 3 April 2000 and ended on 14 April. He was paid £7.73 an hour for that work at the Great Ormond Street Hospital, doing work in the category of a copy typist.[8]On 26 April, he was offered a further assignment at Great Ormond Street Hospital as a ward administrator. The Tribunal found in paragraph 7 of the Extended Reasons that the Appellant had agreed to do that assignment at a rate of £6.18 an hour.[9]The Appellant felt that the work which he had been given on that second assignment was more onerous than the work which he had been given on his first assignment. He therefore told Ms Burnett, an Assistant Director at the Great Ormond Street Hospital. She was the Respondent's point of contact at the hospital. He told her about his concerns on 15 May.[10]The Appellant submits that there was an unlawful deduction from his wages by paying him £6.18 an hour. The Tribunal reached the conclusion that there was no deduction from wages. The Tribunal wrote in paragraph 19:
"19 With regard to the claim of an unlawful deduction from wages, the Tribunal found that Mr Fadipe agreed the rate of pay on the second assignment of £6.18 an hour. There was no question but that he was paid that amount. Therefore, we unanimously found that there was no deduction from his wages."
It is the unanimous view of this Tribunal that this does not raise an arguable ground of appeal. This was not a case of an unlawful deduction; this was a case of no deduction at all.[11]We turn to the other ground or grounds. The thrust of those grounds is that the Tribunal ought not to have accepted the evidence called by the Respondent, particularly in the light of a reference which the Appellant placed before the Tribunal.[12]The Appellant submitted that he had been dismissed because of his assertion of a statutory right, namely that relating to the alleged unlawful deduction of wages. The issue before the Tribunal was whether that was the reason for his dismissal, or whether there was some other good reason. If there was, then there could be no complaint of unfair dismissal. The evidence can be found summarised at paragraphs 10-12:
"10 On 17 May Ms Childs [of the Respondent] received a verbal complaint from Ms Burnett. This concerned Mr Fadipe's alleged refusal to get notes when asked and his reading of patients' notes. Ms Burnett requested that his assignment be terminated. 11 Ms Childs accordingly terminated Mr Fadipe's assignment at once and interviewed him on 18 May. Mr Fadipe alleged that he had been "framed" by the hospital. 12 Thereafter, Mr Fadipe was given no further assignments by the Respondent. Subsequently Mr Fadipe obtained a good reference from Ms Burnett."
[13]More material relating to the Respondent's case can be found set out in paragraphs 9 and 10 of the IT3. According to paragraph 9:
"On the afternoon of 17 May 2000, the Respondent received a telephone call from GOSH [Great Ormond Street Hospital] informing it that GOSH wished to terminate the Applicant's assignment because he had refused to collect notes and had been reading confidential medical notes. The Respondent spoke to the Applicant and explained that there had been a complaint about his conduct. The Respondent informed the Applicant that GOSH wished him to leave and requested that he attend the Respondent's offices to discuss the matter."
The Appellant tells us today that he asked for details about who had made the complaint and about the nature of the complaint. He said that he had only been given the details when he received the witness statements prior to the hearing.[14]It was apparently the Respondent's case that on 18 May the nature of the complaint was explained to him by Ms Childs. The Appellant denied that the incidents alleged had occurred and stated that he was being "framed". The Respondent asked the Appellant why he believed this to be the case but the Appellant was unable to offer an explanation ( see paragraph 10 of the IT3).[15]There was then an argument. It was suggested to him by Ms Childs, that he should speak to a director of the company. He did that. Both that director, Ms Johns, and Ms Childs were called by the Respondent at the hearing of the complaint.[16]Before the hearing, the Appellant sought employment with a Dr Ruth O'Hare and named Lisa Burnett as a person who could give a reference. This was done on 3 July 2000. In the form letter, which can be found set out at page 10 of the bundle, Dr O'Hare asked for the views of Lisa Burnett, in answer to a number of questions. She wrote that the Appellant had been a ward administrator from 1 May 2000 to 1 June 2000. The "reason for leaving" is stated to be "post filled". The dates do not coincide with the dates to which we have already made reference. Ms Burnett then put the word "Good" against "Attendance/Health record", "Quality of Work", "Time keeping", "Presentation" "Honesty & Integrity", "Attitude towards work & clients/customers", "Attitude towards work colleagues". She said that she would re-employ the candidate. In answer to the question "Any further comments?", she wrote:
"I wish Alex well - he is a very pleasant young man."
That was dated 4 July.[17]With that reference and the evidence which he gave, it was the Appellant's case before the Tribunal that the incidents about which his employer - the Respondent - complained, were made up. There had been no such complaint. If there had been, Ms Burnett would not have written the reference she did. That was also the thrust of the argument before us today.[18]In paragraph 23 the Tribunal wrote:
"23 The Tribunal had to determine whether the reason for the dismissal was the assertion by Mr Fadipe of a statutory right. On the evidence which the Tribunal heard, it was satisfied that the reason for the dismissal was not his assertion of a statutory right but the complaint made by the client hospital about his looking at patients' notes and his refusal to fetch notes. The hospital required his removal. The existence of a good reference from Ms Burnett was not sufficient to contradict the clear evidence of the Respondent's witnesses on this point. Accordingly, we hold Mr Fadipe's dismissal was not unfair under section 104. He does not have sufficient service to found a claim of unfair dismissal under section 94 of the Employment Rights Act 1996 and, accordingly, his complaint of unfair dismissal must be dismissed."
It is the Appellant's case that, faced with the reference from Ms Burnett, no reasonable Tribunal could reach any other conclusion than that the two witnesses called by the Respondent were lying. This Tribunal has a very limited jurisdiction. We do not see the witnesses, we note that the Tribunal specifically took into account the reference, but felt that the reference did not contradict what it described as the:
"clear evidence of the Respondent's witnesses"
. It is the Appellant's case that the Tribunal could not properly reach that conclusion, having regard to the reference.[19]We take the view unanimously that this is not an arguable ground. The evaluation of the reference and the evaluation of the witnesses called by the Respondent, as well as the evaluation of the evidence of the Appellant himself, were matters for the Employment Tribunal, and not this Tribunal. We take the view that it is not arguable that the conclusion it reached was one that was perverse, namely one which no reasonable Tribunal could reach. In those circumstances, this appeal fails.