Appeal No. EAT/200/92
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 16th February 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR A C BLYGHTON

	MISS A P VALE

MR M PADUCH	APPELLANT

WHITMAN LABORATORIES LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M PADUCH
(The Appellant in Person)

	

	MR JUSTICE WOOD (PRESIDENT):  This is a preliminary hearing of an appeal by Mr Paduch against a decision of an Industrial Tribunal sitting at Southampton on the 23rd January 1992 under the Chairmanship of Mr Gorst on which occasion the Tribunal rejected Mr Paduch's claim that he had been unfairly dismissed.  In rejecting it the Tribunal was sympathetic with him in that they felt that many employers might not have dismissed him for the reasons that his employers did dismiss him but they felt also that the decision to dismiss was within the band of reasonable response of an employer in those particular circumstances.

	The issue before us today is whether there is a discernible error of law in the decision of the Tribunal which merits argument inter partes. 

	The Applicant was employed by the Respondents, Whitman Laboratories Limited as a Forklift Driver and Warehouseman, there were smoking restrictions and he was dismissed for smoking in a non-smoking area.  

	The question was whether he was in breach of the rules.  There was a restriction on smoking "inside" which had been in effect for some time, and subsequently there was a restriction on smoking "outside", that was in the trailer park, and it was referred to "outside" the building.  It was thought wise to extend the ban on smoking so that everyone whether "inside" or "outside" was being treated the same and there could be no question of problems in the management and the industrial relations between management and those working on the premises.  It was conceded by the Applicant, whom they found was commendably honest, that he knew of the ban, and that in fact at 9 am on the 10th July 1991 he was seen by the foreman smoking behind a skip in the trailer park that was the "outside".  He was asked if he had been smoking and he conceded that he did.  This confession led to a disciplinary hearing and he repeated his admission and was dismissed.

	There was an appeal, but during the course of the appeal the Applicant changed his story and said that he was on holiday.  That was rejected and the appeal was disallowed.

	There was no doubt as the Tribunal found, in paragraph 4:
"The applicant in evidence told us that he was aware that he was in a non-smoking area and took a risk believing that if caught he would receive some punishment such as a final warning or suspension but not dismissal."

There is a clear finding, therefore, that the Applicant knew of the rule, knew where he was and knew what he was doing.  Initially he had been totally straightforward and honest, on the appeal he was clearly not being so honest.  However, the Tribunal looked at the matter, they applied the law and they found that the dismissal was within the band of reasonable response.

	Mr Paduch in his appeal to us today, basically makes two points.  The first that a bundle of documents was presented on the day of the hearing, that there was an adjournment only for 30 minutes for him to understand what was in those documents.  That he did not receive a full bundle until after the hearing was completed, therefore he was managing with the documentation rather than to have been able to have perused it beforehand and he submitted that that was an error of law.

	The procedure in the Tribunal is very much a matter for them, if an adjournment of 30 minutes was given that was clearly thought to be sufficient for him to examine the documentation.  But the issue on the documentation was that some of the photographs were not very clear and if they had been clear then certain points could have been on the photographs.  The second point made by Mr Paduch was that, in fact, the suggestion initially was that his smoking was a safety risk and a danger whereas at the hearing it was merely put forward as being in breach of a rule, and therefore as a matter of example he would have to be dismissed.  That may well be but in any event the matter was looked at as a whole and in view of that passage in paragraph 4, to which we have already referred, it is quite clear that the Applicant knew what he was doing;  he knew the risk of being caught;  he knew it was in breach of the rules and therefore the question of notices was really not material because he knew full well by announcement or otherwise what he was doing.  So far as the changing of the reason, if that was strictly a change of reason, nevertheless that matter was before the Industrial Tribunal.  

	We have sympathy also with Mr Paduch;  speaking for ourselves, we might not have reached the same decision to dismiss, nor would the Tribunal, but we can find no error of law and we are not in a position to substitute our own view for that of the employers nor for that of the Tribunal.  So whilst expressing sympathy, there is no error of law here, and I am afraid we cannot help you Mr Paduch.  The appeal is dismissed.