MRS SUSAN FOY AS CHAIRPERSON OF THE COMMITTEE OF WEAVER COMMUNITY PLAYGROUP v MRS K BRZEZICKI [2001] UKEAT 355_00_0805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 355_00_0805Case No Appeal No. EAT/355/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS SUSAN FOY AS CHAIRPERSON OF THE COMMITTEE OF WEAVER COMMUNITY PLAYGROUPAPPELLANTMRS K BRZEZICKIRESPONDENT
Before
Mrs Recorder CoxDate 8 May 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent No appearance or representation by or on behalf of the Respondent MRS RECORDER COX QC This is an appeal from the Decision of a Chairman sitting alone at the Liverpool Employment Tribunal, promulgated on 25 January 2000, in which the Chairman held that the Applicant, Mrs Brzezicki (the Respondent to this appeal) had proved that the Appellant was in breach of contract by failing to pay her four weeks pay. At the rate of £3.80 per hour, this came to the sum of £190.80. No issue is raised on appeal as to the correctness of the calculation, but rather as to the finding in principle, that there was a breach of contract in this case. Neither party appears or is represented before us today at the full hearing of this appeal.[2]The Appellant is the Chairperson of the Weaver Community Playgroup, where the Respondent was working as a deputy supervisor at the material time. Having heard evidence from both the Appellant and Respondent, the Chairman found that on the evening of 8 September 1999 the Respondent had delivered written notice of termination of her employment as deputy supervisor with effect from six weeks hence. The following morning, that is 9 September, at a staff meeting which was chaired by the supervisor, a Mrs Gerrard, the Respondent declined to reconsider that decision. She declined the offer of pay in lieu of notice and said that she would work out her notice as an assistant at the rate of £3.60 per hour. She was, in fact, due to go on a prebooked holiday on Saturday 11 September 1999.[3]The crucial finding of the Chairman is set out in paragraph 2.3 of his Extended Reasons which reads as follows:
"2.3 On Friday 10 September 1999 she telephoned Mrs Gerrard and said that she had decided that she wanted to finish straight away. Mrs Gerrard agreed that she could obtain a cheque from the Treasurer for six weeks pay, in other words that she could be paid in lieu of notice."
[4]The Chairman then found that subsequently Mrs Gerrard had changed her mind, taking the view that since the Respondent had indicated that she did not want to continue working after all, it was she who had broken the contract, and Mrs Gerrard then caused the making out of the cheque to be stopped. However, the Chairman found he was satisfied that, by agreeing that the Respondent could obtain a cheque after she said she no longer wished to work, she had waived the Respondent's breach and had agreed by implication that the Respondent could receive her pay in lieu of notice. The Appellant was therefore in breach of contract on the finding of the Chairman and the Appellant appeals to this Tribunal against that finding.[5]In the Notice of Appeal the Appellant complains that this is a finding that the Chairman was not entitled to come to. At the preliminary hearing before this Appeal Tribunal, that Tribunal observed that the crucial issue to proceed to a full hearing was whether there was a concluded agreement that although the Appellant was not having to work her notice, she was going to be paid for it. It was ordered that the Chairman's notes should be provided in relation to the factual basis for the crucial finding, as we have identified it, in paragraph 2.3 of the Extended Reasons.[6]We have now seen the Chairman's notes of that part of the evidence and they reveal the following. The Chairman noted that the evidence was that on Thursday 9 September, dealing with the conversation Mrs Gerrard had with the Applicant:
"I said on Thursday she did not have to work her notice if you do not want to. She said, she would. If she had said she did not want to work her notice we would have paid her for the notice in lieu. Re: Friday 10 th September 1999 - at 9.45 am the applicant rang me and said that she was not going to come back after the holidays. I said, do you want the holiday payment in cash? She asked for a cheque. She didn't want cash. She asked if she could see Mrs Melish (the Treasurer) for a cheque that day. I said "
Do you want cash?" She said, "No". I said, "See Louise for a cheque". I thought the cheque would be 6 weeks pay. The cheque was not given to the applicant, Louise made out the cheque but [a name which is indecipherable] did not sign it because she was not told to. I changed my mind because on reflection she (the applicant) had broken the contract."[7]Today, we have had the benefit of reading Skeleton Arguments prepared by both the Appellant in person, and by a firm of solicitors Dixon Keogh Johnson, on behalf of the Respondent. Neither party attends before this Appeal Tribunal, and we have therefore considered the matters in these Skeleton Arguments and the documentation in our bundle.[8]It seems clear to us, after full consideration, that this Chairman was entitled to arrive at the conclusion he did, on the evidence before him. It is clear that the Chairman's findings are that, on 10 September 1999, the Respondent telephoned Mrs Gerrard and it was agreed both that the Respondent would not work out her period of notice and that Mrs Gerrard would obtain a cheque from the Treasurer of the playgroup for the Respondent's six weeks pay to which she was entitled, having given notice.[9]It was also clear, in that conversation with Mrs Gerrard, that the Respondent understood that she would receive six weeks pay in lieu of notice. It seems clear that consideration for this payment was the Respondent's agreement not to return to work, thereby allowing the Appellant to resolve the difficult personnel problems which had become apparent in the days leading up to 10 September 1999.[10]It also seems to us that, in agreeing to obtain a cheque from the Treasurer on 10 September 1999, the Chairman was perfectly entitled to conclude that Mrs Gerrard, on behalf of the Appellant, had waived any breach of contract on the part of the Respondent, and to conclude that a correct construction of the conversation between the Respondent and Mrs Gerrard on 10 September is that the Respondent would receive six weeks pay in lieu of notice, and that is what the parties had clearly understood.[11]There is a further complaint by the Appellant that additional evidence which was not produced at the hearing on 21 January 2000 would prove that the Respondent had given false evidence. This additional evidence appears to be a cheque stub and a letter from the Appellant's assistant treasurer. However, both these documents were clearly in existence before the hearing on 21 January, and it was therefore entirely possible for the Appellant to adduce that evidence before the Chairman if she had so wished. It is too late for her to produce it now.[12]In any event this evidence would not entitle us to form the view that the Respondent had given false evidence. In all the circumstances therefore, we take the view that no error of law can be identified on the part of this Chairman, and this appeal is therefore dismissed.