MR JOHN PAUL JENKINS v TORSIDE LTD AND OTHERS [2002] UKEAT 1032_01_2810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1032_01_2810Case No Appeal Nos. EAT/1032/01/DA & EAT/1033/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR JOHN PAUL JENKINSAPPELLANTTORSIDE LTD AND OTHERSRESPONDENT
Before
Mr Justice Wall Mr P R A JacquesDate 28 October 2002
[1]APPEARANCES For the Appellant MR PAUL GREATOREX (Of Counsel) Instructed by: Messrs Steggles Solicitors Crown Buildings 121A Saughall Road Blacon Chester CH1 5ET For the Respondent MR JAMES BRADLEY Representative MR JUSTICE WALL This is an appeal by Mr John Jenkins and his brother Mr Jason Jenkins (the Appellants) against the decision of the Employment Tribunal held at Liverpool on a number of days in 2001 with extended reasons promulgated on 28 June 2001. The Appellants' claim was that they had been unfairly dismissed by Torside Limited (the Respondent). The decision of the Tribunal was that there was no jurisdiction to entertain either claim on the ground that the Appellants had been taking part in unofficial action, and that accordingly neither had the right to complain of unfair dismissal: - see section 237(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 . Each claim was, accordingly, dismissed. Also before the Tribunal were a substantial number of claims by other people arising out of the same subject matter. The remaining complaints were permitted to proceed.[2]This case has a substantial number of unhappy aspects to it. Not least of these is the fact that the events in question took place on 25 September 1995, yet it was not until March 1991 that they reached the Tribunal. A Notice of Appeal was put in on 3 August 2001 and with the inevitable delays in this building, the Preliminary Hearing which allowed the case to go through did not take place until 1 February 2000. The result is that the appeal proper has reached us only today. All this we regard as most unfortunate, particularly in the light of the course which we have decided we must adopt.[3]Today, the appeal has, if we may say so, been argued very fairly indeed by Mr Paul Greatorex on behalf of the Appellants. For the Respondent, Mr James Bradley has appeared and again has put before us a written submission and provided us other documentation in the bundle for which we are grateful.[4]The short background to the case is helpfully set out in Mr Greatorex's Skeleton Argument and we take it from there. The Appellants were employed by the Respondent as stevedores in the Liverpool Docks until they were dismissed on 25 September 1995. What happened on that day is in dispute, but Mr John Jenkins' case is that he was working in a crane on a ship called the Sygna which was berthed at the Canada Dock in Liverpool, and that at about 3 o'clock he was called down from the crane by a colleague. Taking the matter from his statement, what he said happened was this:
"On reaching ground level I was met by the ships supervisor, Mr Ken Jones who told me there was a dispute about overtime payments and I should go to the canteen and wait for Mr Bradley senior to arrive to sort it out. At this point it was the first time I was aware of any overtime dispute, as such I totally refute the statement of Mr B Bradley" (We will come to that statement in just a moment.) The statement goes on: "
As I entered the canteen I saw between 8 to 10 other men so I sat on a table with 4 of them including my brother Jason, the rest of the men who had left the ship were standing out by the quayside discussing what was happening. I had no sooner sat down when Mr Bradley the managing director entered the canteen and proceeded over to the table I was at and dismissed me and 4 other men immediately. He asked no questions just simply sacked us he was very irate. Once he dismissed us he left the canteen not saying another word to anybody else."[5]Mr Jason Jenkins, as Mr Greatorex accepts, was found by the Tribunal to have been working on the same ship, although his evidence was that he had on that day been working elsewhere. His statement is in manuscript and, as Mr Bradley junior pointed out, was unsigned .On page 3 he says that he was not involved in any industrial action, because he had finished his work at 4 o'clock at the Alexandra dock after which he walked to the Canada dock to get a lift home from his brother. When he got there, he found his brother was sitting in the canteen. The next thing he knew was that the boss, Mr Bernard Bradley, came in and sacked him. He explained that he had finished his work at another site, but that Mr. Bradley's reply had been:
'I don't care. You're sacked anyway, along with your brother.'
[6]There was some evidence before the Tribunal in documentary form that Mr Jason Jenkins had been working elsewhere; but equally it was possible on the evidence to infer, as the Tribunal did, that he had swapped his work for the latter part of the day at least in order to work on the same ship as his brother, and that he had worked the overtime shift from 4 to 6.[7]Mr Bradley (senior) made a statement explaining that he was a retired dock worker, having retired in 1989 when the Dock Labour Scheme was scrapped; that he had started the Respondent company Torside Ltd in order to be able to employ men in the docks; that he had formed the company with a man called Tom Hendricks. Mr. Bradley's son James appeared before us today. He explained in his statement the difficult nature of labour relations with the Docks and Harbour Company and the Union. He expressed his belief that the fundamental reason for the difficulties was that the men wanted to be Mersey Docks and Harbour Company employees, and not employed by a sub contractor. We were subsequently shown material to which we will refer in due course demonstrating quite how bad labour relations were.[8]In his statement Mr Bradley explains how he had great difficulty keeping the men in line; that they would frequently walk off the site and not use the procedures which has been agreed with the Transport and General Workers Union and their representative on the docks, Mr Jack Dempsey; that ships would quite frequently cease to be serviced. He asserted that Mr Dempsey was always fully aware of the difficulties, and that there had been a particular difficulty in the summer of 1995 when redundancies had been thought to be inevitable and had been threatened.[9]In relation to the events of the day in question Mr. Bradley referred to the Sygna being berthed at the Canada Dock and due to sail just after 4 pm that day. There were apparently 25 Torside employees working on the ship. He said he received a telephone call at about 3.20pm from Mr Bob Jones of Liverpool Cargo Handling (LCH) who told him that five Torside men had walked off the ship and gone to the canteen; that that work on the ship had stopped. He immediately went to the canteen - approximately 5 minutes walk at the most. As he walked through the gates one of the men, a Mr Halsall shouted at him to the effect that 'Those bastards have stopped the f…ing ship again' - and by that he plainly understood that the men included the two Jenkins brothers.[10]Mr. Bradley said he was then told by George Gordon, the Chief Superintendent at LCH that the men had gone into the canteen on the Canada Dock. So he went to the canteen, where he found the two Jenkins brothers amongst five men altogether. He said in his statement:
"I was very disappointed by what had happened and I complained they had not used set procedures and I had warned them for the last time and told them that I did not have a job for them at that point. In my mind I dismissed them at that point. The 5 never told me why they had walked off the ship. I went to the Liverpool Cargo Handling Office to see Mr Jones and Mr Carmichael. I apologised to them for the men's behaviour and told them I had dismissed the 5 men. It subsequently transpired that I was informed by George Gordon that these 5 men had left the ship shortly after 3 pm. Normal procedure was to finish a ship if that lasted shortly after 4pm which was the normal finishing time, and they would receive in blocks of 2 hours overtime. So if they worked for 5 of 10 times over 4pm they would get 2 hours pay."
[11]What happened thereafter is not, we think, particularly material except that a full blown dispute appears to have arisen. Mr Bradley says that he telephoned Mr Dempsey that evening at approximately 7.30pm to tell him what had happened. Mr Dempsey, he understood, knew what had gone on.[12]We were today shown a document which apparently was before the Tribunal (but to which it does not refer) namely a memorandum dated 6 October 1995 prepared by Mr Dempsey for a Regional Committee Report, during the course of which (after dealing with the difficulties over proposed redundancies earlier in the year) Mr. Dempsey says:
"On Monday, 25 th September, five men walked off a ship over an hour's overtime. They did not follow any procedures whatsoever and were told that they were sacking themselves. Others then followed and we then had a situation of the whole of the workforce being dismissed."
[13]That, in outline, is the available documentary material which was before the Tribunal. The Chairman's notes were bespoken. It is apparent that Mr Jason Jenkins did not give oral evidence. Mr John Jenkins, however, did and when cross examined he gave essentially the same version:
"4 Mr Tony Helm signalled me to come down. He was one of the 5 who was dismissed. There was no conversation. While in the crane everyone was getting off the ship. He signalled me down to get off the ship. He walked off to the canteen. I climbed down. I was one of the last to leave the ship because of the time it took to get down from the crane. 5. In the canteen I asked them what it was all about. About 25 Torside men were on the ship. Everybody left. A lot just stood on the quayside talking among themselves. When I got there, there were 8 or 10 from the Sygna. The pickets started when I started, Tuesday afternoon I think. I expected an appeal. (He adds because he is being questioned by Mr Bradley Junior) I thought 'Your Dad was annoyed, understandably so, but he would come back and say, "
You're all out, maybe I was a bit hasty." I thought he would have given us an appeal."[14]That is the end the note of his evidence. The Chairman records that his notes, and the notes of the two members, indicate that Mr Jason Jenkins was not called to give evidence and was not cross examined. However, his written statement was before the Tribunal and they read it.[15]Mr Bradley (senior) gave evidence. We have the Chairman's note of his evidence. When he was cross- examined, he said:
"On 25 September the Jenkins brothers, both Applicants walked off the Sygna. They were two of the 5 who walked off the ship. I spoke to the managers at the Canada Dock. They said they had walked off. The witness was referred to Paragraph 23 of his statement and stated the managers were on the quay. The shift would normally end at 4.00pm. It was near enough 3.20pm when I was told about the dispute. It was not after 4pm when I talked to the men in the canteen. I was back in my own office by 4.00pm."
He added that the men had not told him about the dispute when he sacked the 5. One said:
"I'll pull the rest out"
. I saw John and others. They said, "Put them back to work". I said, "No, it will be before official (and then there is indecipherable reference)". I said, "Go back to work". Someone else said they were not going back and I said, "There is no job for you either". They didn't say no to me then. But they didn't go back to work. My son told me that that night. Slightly later on he says:
"I did not ask what this problem was. I already knew. I was continually getting people stopping jobs and walking off against procedure."
And slightly later on again he says that from his office in LCH he could not see where they should be working, but he was told by management they were all given hours. He did not say everyone working on the Sygna was to be sacked. . He was also asked about Mr Jason Jenkins. He said later in his evidence:
"Jason Jenkins did not need to be in work. He made a swap with one man. He swapped with someone who was going to work his two hours for him. The shift was not over when I sacked them. He had switched with a lad named S(?) who did not want to work having joined his brother at 4 pm. He swapped during the shift. I sacked them on the spot."
[16]So how then did the Tribunal deal with these various conflicts of evidence? It set out its findings of fact in paragraph 4 of its reasons.

(c) , (d) and (e) of that paragraph:

"(c) On 25 September 2995, the applicant Mr Jason Jenkins, with others who have not made a complaint, were working on a ship, the Sygna, berthed at Canada Dock. They were joined by Mr Jenkins's brother, John. He had been engaged elsewhere, but he switched duties with a colleague to come to the Sygna. The 5 were being supervised by an employee of MDHC. He told them, wrongly, that they would be paid less than they knew was their entitlement for the overtime needed to complete the work on the Sygna. Shortly after 3 pm, they left the ship in protest about the proposed underpayment. They went on to the canteen on Canada Dock. Mr Bradley senior arrived at about 3.20 pm, having been told what had happened. He was angry, accused them of not using the set procedures and dismissed them. They were in no doubt they were dismissed. (d) The 3 applicants were due to work on the Sygna beyond the normal finishing time of 4 pm. They would thus have been entitled to 2 hours' pay, however much less than 2 hours they actually worked; such was the operative agreement. Mr Bradley senior knew that they were so entitled and would have paid them what they claimed. There had shortly before been a similar incident and the employees' right had been vindicated. There was a procedure for dealing with disputes of this kind. They took action, stopping work, before the dispute came within the purview of their union. The action was clearly industrial action, a withdrawal of their labour with a view to affirming what they perceived as a threatened right. Equally clearly, the action was unofficial: they were dismissed before any official of the union knew about their action. (e) After the 5 men off the Sygna had been dismissed, the applicant Mr Jason Jenkins told Mr Bernard Bradley that in the circumstances he would "get the rest of the men out. Mr Bradley saw that all the other people working on the Canada Dock had stopped work and were gathering round the 5 who had been dismissed. Mr Bradley pleaded with them to return to work. The alternative, he said, was no jobs for anybody. That evening, he learnt from his son, John, one of the dockers, that none of the men had gone back to work. He hoped that Mr Dempsey, the full-time officer of TGWU, would next day sort out the mess."
[17]The relevant legislation is contained in Sections 237 and 238 of the Trade Union and Labour Relations (Consolidation) Act 1992 and Section 237(1) says this:
"An employee has no right to complain of unfair dismissal if at the time of the dismissal he was taking part in an unofficial strike or other unofficial industrial action"
. Section 237(4) provides that the question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of the dismissal.[18]Having referred to this section the Tribunal continued as follows:
"Their application to the facts (a) The 5 (including the 2 appellants) who walked off the Sygna did not do so on the authority of the shop stewards. At the time of their dismissal they had not received the endorsement of the shop stewards. (b) Thus theirs was unofficial action and they do not have the right to make a complaint of unfair dismissal."
[19]That is the Tribunal's conclusion. Mr Greatorex is able to launch a number of substantial attacks on the Tribunal's findings of fact. First of all, he points to the fact that in paragraph 4(c) in the reasons the Tribunal has unfortunately confused the 2 brothers and put them the wrong way round. However, if that were the only error in the findings we think it unlikely that this Tribunal would wish to intervene. These were complex proceedings involving a large a number of applicants and a slip is easily made.[20]However, Mr Greatorex has other material which he is able to rely upon. He submits that there is no evidence that Jason was working on the Sygna. Indeed he submits the documentary evidence is to the contrary given the record of where he was working on that day. He accepts of course that Mr Jason Jenkins did not give evidence and that there is a discrepancy in the timings, since clearly these events took place before 4 pm which is when Mr Jason Jenkins says he arrived in the canteen. However, Mr. Greatorex relies on the point that the evidence at the best for Mr Jason Jenkins' place of work on that day is hearsay and not identified properly by the Tribunal. Indeed the Tribunal does not deal with Mr Jason Jenkins's version of events as to where he was and why the Tribunal did not accept it.[21]Mr Greatorex submits that this point is made even more strongly in relation to John Jenkins, who gave a very clear explanation in his witness statement and in oral evidence to the Tribunal in the extracts we have read as how he came to leave the ship on that day. Mr Greatorex is able to make the point with some force that on the material available to the Tribunal there was no evidence to suggest or to support the finding that Mr John Jenkins had left the ship in protest about the proposed under-payment. His case was of course that he had been brought down from the crane, told there was a dispute and told by a superior to go to the canteen to await developments.[22]The Tribunal unfortunately does not deal with his evidence in that respect at all and we are therefore left in some doubt as to how it is that the Tribunal found that Mr John Jenkins came within section 237 of the Act.[23]Mr Greatorex in paragraph 14 of his skeleton argument gives us a very helpful analysis of the law, which we need not elaborate but which we accept. The difficulty about the case is whether or not the material identified within the Tribunal's judgment is sufficient to warrant the findings of fact which they made. As we indicated earlier, in paragraph 4(d) of the Reasons the Tribunal says that the action in question was unofficial. The men took action "stopping work before the dispute came within the purview of their union". That being clearly industrial action, the finding that the men withdrew their labour would be justifiable if the Tribunal had found that indeed was how Mr John Jenkins in particularly behaved. However, Mr John Jenkins' evidence was of course that he left the ship under instructions in order to attend a meeting. In those circumstances, we feel constrained to agree with Mr Greatorex that the Tribunal's finding that this was unofficial industrial action and the withdrawal of labour is, on the evidence, unsound.[24]Of course it may be the case that this is what happened. It may be that both John and Jason Jenkins did walk off the ship in defiance of agreed dispute procedures. But we find ourselves constrained to agree with Mr Greatorex that the material which the Tribunal identifies for reaching that conclusion does not in fact warrant it.[25]On the other hand, the documentation produced by Mr Bradley (junior) this morning is indeed evidence, which was before the Tribunal, of simmering industrial relations in the Docks in the summer of 1995. There is also the report from Mr Dempsey, which we have read, and which appears at least after the event to demonstrate that Mr Dempsey accepted the version of events which was put forward on behalf of the Respondent. But once again we think that Mr Greatorex is entitled to say in relation to this report that it is not in any sense conclusive of Mr John Jenkins's behaviour. In particular, it does not fatally undermine Mr John Jenkins's assertion that he left the ship under instructions, in order to attend a meeting and was therefore not taking part in any unofficial industrial action. Whilst the position, as Mr Greatorex rightly concedes, is weaker in the case of Jason Jenkins, we nonetheless take the view that the Tribunal does not adequately deal with his case or put forward his position and explain why was it was being rejected.[26]Mr Greatorex invited us to find that the findings of the Tribunal were perverse. We do not think we can go that far. There is an abundance of material in the documentation which if properly analysed and properly dealt with by the Tribunal might well have led it to the conclusion which it ultimately reached. But we consider, having discussed the matter and read the documentation that this is a case in which the Tribunal's findings are sufficiently unsatisfactory and insufficiently reasoned to make it necessary for the matter to be remitted for rehearing.[27]We regret reaching this conclusion given both the time scale of the case already and the difficulty of focusing minds on an event which is already 7 years old and which no doubt will be much older by the time the matter comes back before the Tribunal. We are also uncertain as to the status both of the Appellants and the Respondent. Nonetheless in our view the well established principle of justice not only being done but being seen to be done applies clearly in this case; and in these circumstances we feel there is no alternative but for us to set aside the Tribunal's decision and to direct a rehearing of the case before a fresh Tribunal.[28]We understand that the remaining claims against the other claimants have been dealt with, and so if the matter is pursued by the two Jenkins brothers this will be a discreet issue which should be capable of being dealt with swiftly by a new Tribunal without extensive reference to documents. But we do urge the parties, if the matter is to be reheard, to put all their evidence fully before the Tribunal and for each of the issues to be fully explored so that proper findings of fact can be made on the next occasion.[29]For all these reasons, the appeal will be allowed and a rehearing will be directed before a fresh Tribunal.