MR M GIBBINS v MR J HUNT T/A HUNTS SHEDS [2002] UKEAT 1239_01_2504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1239_01_2504Case No Appeal No. EAT/1239/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M GIBBINSAPPELLANTMR J HUNT T/A HUNTS SHEDSRESPONDENT
Before
His Honour Judge J R ReidDate 25 April 2002
[1]APPEARANCES For the Appellant MR P FLOWER (of Counsel) Instructed By: Messrs Greenland Houchen Solicitors 38 Prince of Wales Road Norwich Norfolk NR1 1HZ JUDGE J R REID QC: This is the preliminary hearing of an appeal against a decision of an Employment Tribunal held at Norwich on 30 July. Following that there was discussion on 22 August of last year and a decision was sent to the parties on 29 August of last year. By that decision the Tribunal unanimously decided that the Applicant, Mr Gibbins was not dismissed from his employment.[2]The case which Mr Gibbins had run below as set out in his ET1 was; "The Respondent did dismiss me over the telephone on a date between 25 th and 30 th October 2000." What had happened in brief terms was that the employee, Mr Gibbins, was off work from his employment with Mr Hunt, who trades as Hunt Sheds, with a bad back. Because of his bad back he could not work in erecting sheds.[3]As a result of information received, Mr Hunt went round to an address where he thought that he saw Mr Gibbins doing decorating work. There was then a telephone conversation between Mr Hunt and Mrs Gibbins which was terminated and there was then subsequently as it is said by Mr Gibbins, a telephone conversation in the course of which he was dismissed by Mr Hunt. Thereafter, he continued to receive sick pay, it appears until 18 November. He was eventually, after some pressing from solicitors acting on his behalf, sent a P45 showing his leaving date as 18 November. He appeared to have sick notes covering him until 24 November.[4]All that however, so far as the Tribunal was concerned, was by the by because the allegation made was dismissal in the course of a single telephone call sometime between 25 and 30 October, though it was suggested that the cell might be misdated and the telephone call might have been a day or two later.[5]The Tribunal relied in particular on some corroborative evidence given by a Mr Carter, who had a conversation with Mr Gibbins shortly after the relevant date, on 1 November, in which the Tribunal held that had there been any telephone dismissal it would have been mentioned. The Tribunal held that there was no such call and no such dismissal. The basis of the appeal is that they should have gone on and considered precisely how it was that the employment came to an end, whether it was by what is sometimes called self-dismissal i.e. either resignation or a repudiatory breach by the employee accepted by the employer or in some other way, and that the failure to consider an alternative method of dismissal renders the decision unsafe. In our judgment that is not the position. The Tribunal was asked to deal with one specific issue and they did deal with it.[6]That from the course of the evidence appears to have been the only substantive issue before the Tribunal. It is noteworthy that the chairman's note of the Respondent's closing submissions, are recorded in this way:
"The case is about dismissal, no disagreement as to the background. It all terms on the telecon and the 3.11.00 [that was a letter written to the Respondents] was not written in good faith written on instructions of CAB"
It then goes on:
"Both are clear that there was no mention in that telecon of dismissal, it was the later telecon when the disagreement arises. Someone is not telling the truth. If there was a dismissal, it was unfair."
[7]It is only in the Applicant's final submissions that any suggestion was made of any dismissal in any other way. I quote at the end of those submissions as noted by the Chairman; "This is not realistic, what if, was the relationship destroyed by failure to send in a sick note of dismissal was lost in the conversation of 01.11, was it not when the P45 was sent out in failure of sending a sick note. There is still that possibility." That was not in truth an issue before the Tribunal. It was raised that very last gasp no doubt in attempt to salvage something from a hearing where we suspect that by that stage the Tribunal's disbelief of Mr Gibbins may have been becoming apparent.[8]The Tribunal in our judgment dealt perfectly adequately with the only issue that was before it and the finding that the Applicant was not dismissed to his employment, was one which was unimpeachable in law.[9]In our judgment, there is despite the gallant efforts of Mr Flower to argue the virtually unarguable, no point of law has been raised, there is no basis on which this appeal should go to a full hearing and the appeal should be dismissed at this stage.