PORTLAND ASSET MAINTENANCE LTD v MR M C ABARONYE [2001] UKEAT 936_00_1501

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 936_00_1501Case No Appeal No. EAT/936/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PORTLAND ASSET MAINTENANCE LTDAPPELLANTMR M C ABARONYERESPONDENT
Before
His Honour Judge CollinsDate 15 January 2001
[1]APPEARANCES For the Appellant MR MIDDLETON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE COLLINS CBE The Tribunal would like to express its gratitude to Mr Middleton for the assistance which he has given in this case. It is a preliminary hearing of an appeal against a decision of an Employment Tribunal sitting at London North, whose extended reasons were promulgated on 19 July 2000.[2]The hearing had taken place on 25 February and it is always a matter of concern when there is such a long gap between the original hearing and the extended reasons. However, the point was a simple one: the Respondent was a handyman employed by the Appellant for a very short period indeed, for a probationary period, which began on 14 June 1999 and ended, according to the decision of the Tribunal, on 23 September 1999, when the Appellant resigned.[3]The finding of the Tribunal was that the Respondent was entitled to be paid a total of £1314.10, which was made up as to £262.82 by way of unauthorised deduction from wages in respect of one week's money in hand, as to £683.33 by way of wages for the period from 7 - 23 September, and as to £105.13, unauthorised deduction from wages in respect of accrued holiday pay, and as to the balance of £262,82, one week's notice.[4]Now, two points are taken in the Notice of Appeal. I will deal with the second point first. It is asserted that the Respondent had already been paid the week which had been kept in hand, with the final payment which had been made to him on 6 September, and it is also asserted that that was put forward to the Tribunal by Mr Banjo, on the Appellant's behalf and that the Tribunal failed to deal with that evidence.[5]Paragraph 14 of the extended reasons shows that the Tribunal considered the evidence which was presented to them on this issue. It reads:
"14 Mr Abaronye claims for unauthorised deductions from wages in respect for week in hand payment. The payslips and his letter of offer show that he was paid one week in hand."
And then they quote from the letter of offer and continue:
"It is the unanimous decision of the Tribunal that Mr Abaronye is entitled to be paid the sum of £262.82, being his net weekly pay as reflected by his payslips, as an unauthorised deduction from wages in respect of his week in hand money."
[6]And therefore it seems to us that the Tribunal had, at the forefront of their mind, the question of whether or not a retention of one week in hand had been made by the employers, and they decided, and the payslips were undoubtedly the clearest evidence which they could possibly have had, that the employers had retained one week in hand. Accordingly, this seems to us to be a question of fact, and one which does not fall within our jurisdiction to reconsider.[7]The first ground of appeal is that the Respondent was not entitled to any payment in respect of any work done, or work for which he made himself available, after 6 September, because he had been dismissed on 31 August. The Tribunal found in paragraph 11 of the extended reasons that Mr Abaronye must be treated as having been dismissed on 23 September.[8]It is hardly surprising that the Tribunal did not find that Mr Abaronye had been dismissed on 31 August. In the Respondents' Notice of Appearance, dated 15 November 1999, box 4 asked the question:
"Was the Applicant dismissed ?", and the Respondents have ticked the answer "
No". And in paragraph 1 of the Particulars, the Appellant states :
"The Applicant resigned on 28 August 1999 without notice"
There is no suggestion whatsoever in the Notice of Appearance that the Appellant was dismissed. Accordingly, it seems to us that there is no substance in ground 1 of the appeal either and we shall dismiss the appeal.