MS K PABIEL v FORGE HEATING & COOLING SERVICES [2001] UKEAT 759_01_0511

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 759_01_0511Case No Appeal No. EAT/759/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS K PABIELAPPELLANTFORGE HEATING & COOLING SERVICESRESPONDENT
Before
His Honour Judge J R ReidLord Davies of CoityDate 5 November 2001
[1]APPEARANCES For the Appellant MS SUSAN BELGRAVE (of Counsel) Instructed by: Messrs Twigg Farnell Solicitors 12 Lidgett Lane Dinnington Sheffield S31 7QD JUDGE J R REID QC This is the preliminary ex parte hearing of an appeal against the Decision of an Employment Tribunal held at Sheffield on 27 April of this year. The Decision was sent to the parties on 4 May of this year. By the unanimous Decision of the Tribunal, it was held that there +was no dismissal, constructive or otherwise, of the claimant, Ms Pabiel, and that therefore her claim for constructive dismissal and/or unfair dismissal against her former employers, Forge Heating & Cooling Services, failed.[2]Three points have been taken before us by Ms Belgrave, who has said everything that could properly be said on behalf of her client. The first is that the Tribunal erred in law because they did not accept that there had been a dismissal and that the Tribunal should have held that the words used in the circumstances in which they were used by Ms Pabiel, were not to be taken as a resignation. So far as that is concerned, the Tribunal directed itself as to the law in paragraphs 14 and 15 of their Decision, and did so in unexceptionable terms.[3]They found that the Applicant was not telling the truth in her evidence. Telephone records demonstrated quite clearly that there were telephone calls, on the day when Mrs Morris of the Respondents said there were, and on a day when Ms Pabiel had denied there had been any telephone calls. The Tribunal took the view, having heard evidence from Ms Pabiel and from Mr and Mrs Morris that Ms Pabiel was not a witness who could be relied on and they made a finding of fact that she knew exactly what she was doing when she asked for her P45 and on being asked "Why, are you leaving the firm?" replied "Yes and good riddance" The first of those points is hopeless and need not go any further.[4]The second point relied on is it is said that Ms Pabiel did not get a fair trial because in the course of the hearing, the employers raised a number of allegations that Ms Pabiel had been dishonest in the earlier course of her employment. The Tribunal said that it would disregard those applications and would not allow cross-examination on them. In the course of their Decision, at paragraph 18, the Tribunal had this to say about it:
"18. The tribunal go on to say that if they had come to the other decision i.e. that there was a dismissal rather than a resignation then as far as compensation was concerned there would have to have been an extensive further inquiry in connection with whether the applicant had in fact misappropriated substantial sums from the respondent firm, the full details of which did not become apparent until after the termination of the contract. These issues have not been resolved either way by the tribunal and would have been explored in detail if they had been relevant."
What is said is that the Tribunal prevented Ms Pabiel investigating these matters, by cross-examining on them, but the Tribunal did in fact take them into account because at paragraph 16 it said:
"In this particular case the applicant, the tribunal find, knew exactly what she was doing. She knew that she would have the greatest difficulty explaining the invoice in connection with her partner's business and there may have already been other matters mentioned which were extensively trailed before the tribunal of which she was aware."
[5]It will be noted that they are drawing a distinction there between the invoice in connection with her partner's business and the other matters. The invoice for her partner's business was clearly a matter which had been raised before the Tribunal, and which indeed was a substantive part of the hearing before the Tribunal. Paragraph 7 and 8, recording their findings of fact, were in these terms:
"7 The applicant went on holiday in June 2000 and subsequently fell ill and was away from the office. There was a dispute as to whether the applicant was or was not due to be paid for sick pay but in the end nothing turned upon that. What is certain is that on 22 August 2000 the respondents discovered the applicant had arranged for some goods to be ordered for her partner's business to be ordered through the respondent company for which she had no current authority so to do. 8. Mrs Morris tackled the applicant about this in the conversation on 25 August ."
I should pause there to say that that is the conversation that Ms Pabiel lied about and said never took place " and also about the question of the sick pay and the tribunal was satisfied that it is that accusation of effectively dishonest dealing which led to the resignation in this matter.[6]It seems to us clear that the Tribunal was drawing a proper distinction between the invoice discovered on 22 August which was the central part of the hearing and the other allegations related to alleged misappropriation which had not come to light at the time of the resignation, and it quite rightly did not allow those matters to be dealt with in the hearing before it, and quite rightly, as we see it in paragraph 18, did not take them into account in the Decision. It seems to us that it is quite impossible to say that there is any seriously arguable suggestion that Ms Pabiel did not receive a fair hearing because she was not allowed to investigate in cross-examination matters which were irrelevant, and were treated as irrelevant, to the matter being dealt with by the Tribunal.[7]The third ground of appeal raised was that the Decision was perverse. Ms Belgrave, very sensibly, did not try to say that on the material before the Tribunal the Decision was perverse, It was clearly one that was open to it; it heard the witnesses, believed one side, disbelieved the other, and it appears for good reason. What she does say is that the Decision was perverse in that it was made in the absence of material which the Tribunal should have had.[8]In our judgment, the Tribunal had all the material it was proper to admit for the purpose of this hearing and even if one can expand the categories of perversity to include an appeal against a Decision which is not perverse on the evidence found, but might have been perverse had there been different evidence before the Tribunal, it does not seem to us that ground could conceivably be a runner.[9]In those circumstances, there is no reason why this matter should go to a full hearing, and the appeal will be dismissed at this stage.