Appeal No. EAT/551/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9th February 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (P)

	MR J R CROSBY

	MR R JACKSON

MR S ROGACH	APPELLANT

GATEWAY FOODMARKETS LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S ROGACH
(In Person)

	MR JUSTICE MUMMERY (PRESIDENT):  This is an appeal from the decision of the Industrial Tribunal held at London (North) on the 25th May 1993.  The Tribunal unanimously decided that Mr Rogach, the Applicant, had been fairly dismissed by his employers, Gateway Foodmarkets Limited, by reason of redundancy.

	Mr Rogach, who conducted his case "in person", both before the Tribunal and on this appeal, was dissatisfied with that decision.  By a letter of Notice, dated 2nd July 1993, he appealed.

	We explained to Mr Rogach that this is an Appeal Tribunal with has no power to determine the facts of the case.  The function of the Tribunal is to decide whether the Industrial Tribunal, which did find the facts of the case, made an error of law in its decision.  
	Mr Rogach was employed by Gateway Food Markets as a Fresh Food Manager at the time when his employment ended on the 17th August 1992.  He had been employed in various capacities by Gateway since August 1981.

	On the 21st August 1992 he presented a complaint to the Industrial Tribunal that he had been unfairly selected for redundancy and unfairly dismissed.  He gave the details of his employment.  He gave details of an interview in which he was informed that he would need to attend an interview workshop to assess whether he was suitable to work for the new organisation Food Giant.  He did not feel, at the time of the interview, that his job was in jeopardy.  He was told that, if he was unsuccessful in the assessment, his job within the Company would be safe, as the Company was not in the business of letting people with his length of service and experience, be made redundant.  He gave the full details of the history of the matter up to his dismissal on the 17th August 1992.

	In the Notice of Appearance, dated 29th September 1992, Gateway Foodmarkets stated that the Walthamstow store, where Mr Rogach was a Fresh Food Manager, was underperforming.  There were declining sales.  Gateway decided to convert it to a discount superstore under the name Food Giant.  This change in operation required a change in working practices and responsibilities at all levels.  A new staff structure was implemented giving greater responsibility to the senior management team.  Gateway set out details of how Mr Rogach was not successful when he attended an assessment, and was given notice of redundancy.  Efforts were made to find him a suitable alternative position.  According to Gateway the only position available at that time commanded a lower salary than Mr Rogach had been earning.  He turned down the position, of a Fresh Food Manager at Cheshunt Gateway Store.  The position taken by Gateway was that Mr Rogach was dismissed for reasons of redundancy and had received his full contractual and statutory entitlement.

	The Industrial Tribunal heard evidence from Mr Rogach.  They heard evidence from witnesses called by Gateway;  a personnel executive, two store managers and an operations director.  It was for the Tribunal to decide the facts.  The crucial findings of fact was that the reason for the dismissal was redundancy.  Mr Rogach's argument was that there was no redundancy, because his job at the Walthamstow store still continued in Food Giant.  The Industrial Tribunal examined the facts of the case and stated, in paragraph 9 of their decision:
		"Having seen and heard the witnesses we are satisfied that the job of a Food Giant Fresh Food Manager was materially different in scope and responsibility."

They referred to the differences in the number of staff, the conditions and hours of work, the responsibilities and the difference in pay.  They stated later in the paragraph:
		"that the two jobs were materially different."

	Mr Rogach disagrees with that decision.  He has submitted to us what he stated in his letter of appeal:
		"The job of a Fresh Food Manager is the same in Gateway as in Food Giant"

He produced charts to show how similar the position was in the management structure of Gateway and Food Giant.  He listed the responsibilities and accountabilities of the two jobs, to show how similar they were.  He submitted that the responsibilities and accountabilities are exactly the same.  He said:
		"I have compared the job description which was given to me by the Food Giant personnel at the tribunal against the job which I have been doing and there is no difference except in recruitment. . . .

		To summarise, it is very easy to make something look different but, in essence, there is very little difference in the two positions of Fresh Food Manager"

That was Mr Rogach's main point.  The difficulty in this appeal is that it is not a point of law.  It is a question of fact and degree whether two jobs are the same or different. The Industrial Tribunal heard the evidence and were entitled to come to the conclusion that the two jobs were materially different.

	Mr Rogach may disagree with that.  He is entitled to disagree.  This Tribunal however, has no power to reach a different factual conclusion from the Industrial Tribunal's decision.

	The second point made by Mr Rogach is that, if there was a redundancy situation, he was not fairly selected for redundancy.  The Industrial Tribunal considered this, in paragraph 10 of its decision.  They asked themselves, correctly, whether Gateway had acted reasonably in all the circumstances in treating the redundancy of the post of Fresh Food Manager at Walthamstow as a sufficient reason for dismissing Mr Rogach.  They went into the facts in detail, referring to the assessment course, on which Mr Rogach was, unfortunately, not successful.  They considered the offer of alternative employment, which he refused, and stated, as a factual conclusion, that there was no suitable available alternative employment, other than the position refused.

	They criticised Gateway, in relation to its dismissal procedure.  The criticism was:
		". . . no-one appeared to have specific responsibility for finding alternative employment for a long serving and satisfactory employee"

Having made that criticism the Industrial Tribunal added:
		"we are satisfied that the respondents did offer him the only available managerial post within the area which he had defined."

Again, those are findings of fact.  The Industrial Tribunal concluded that Mr Rogach was fairly dismissed by reason of redundancy.

	There is not a point of law on this appeal capable of successful argument at a full hearing.  At this preliminary stage, we shall dismiss the appeal.

	We have sympathy with Mr Rogach. He was a long serving employee of Gateway.  There was no suggestion of any criticism, at any time, of the way he had done the job.  We are unable, however, to make any legal criticism of the decision of the Industrial Tribunal.  The appeal must, therefore, be dismissed.