Appeal No. EAT/822/93

	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14 June 1994

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR K M HACK JP

	MRS P TURNER OBE

R W WALDRON T/A	APPELLANTS
WALDRON TAXIS

MR J M GANNON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	NO APPEARANCE BY
	OR REPRESENTATION
	ON BEHALF OF THE
	APPELLANTS

	

		MR JUSTICE MORISON:		This is a preliminary hearing to determine whether the prospective Applicant has an arguable point of law to pursue, such that it is fit for a full hearing before the Employment Appeal Tribunal.  The prospective Applicant was employed by the Respondents as a Bus Driver/Radio Operator since April 1988.  He was dismissed by letter of the 29 January 1993, which took effect on the 5 February 1993.  He presented to the Industrial Tribunal a complaint of unfair dismissal and that complaint succeeded.  The Respondent's employers wish to appeal against that decision and have presented to this Appeal Tribunal a Notice of Appeal.  

	The short facts relating to this appeal may be stated, taking them from the decision of the Industrial Tribunal.  On the 29 January 1993 there was an incident in which the employee swore at a fellow employee.  To use the words of the Industrial Tribunal "he blew his top and used strong language" which may have been so strong that, at any rate, its precise terms were concealed from the Industrial Tribunal.  The essential finding of the Industrial Tribunal was that whilst his behaviour in that instance was unacceptable they were satisfied that the employers had not clearly spelt out to the employee that failure to remedy various defects would lead to his dismissal, and there were no written warnings that were given either.

	In relation to complaints which had been made about his conduct in taking a dog on to the school bus run, again the Industrial Tribunal concluded that it had not been spelt out to the employee that if he continued to do it, it would lead to his dismissal.  Having reached those conclusions, they found that the Applicant was unfairly dismissed, having been given no clear prior warnings, and there being no disciplinary hearing at which the Applicant could state his case, and no subsequent review of the initial decision, when tempers had cooled down during the week following the 29 January incident, during the period of notice which he then served out.

	The prospective appeal is on the grounds, first of all, that there was some difficulty about the hearing date.  Frankly it appears to us that those matters are wholly misconceived.  The Industrial Tribunal Chairman has been consulted about those grounds contained in paragraph 3i) a), b) and c) of the Notice of Appeal.  So far as he is aware there was never any application for an adjournment which appears to have been suggested in that paragraph.  It is then suggested that, in the alternative, the Industrial Tribunal were acting incorrectly in finding that the Applicant was unfairly dismissed as a result of the Appellant failing to instigate a formal appeal procedure.  It seems to us that that is not a point which the Industrial Tribunal are making, the essence of their decision as we have indicated, is that here was an allegation of misconduct where there had been a lack of prior warning, and the person concerned, the Applicant, had not been given a proper opportunity to put his side of the case before the decision to dismiss was taken.  

	What the Tribunal are talking about in paragraph 6, where they talk about a review after the initial decision had been made, was no more than that after the decision to dismiss had been made, during the week in which the Applicant worked and tempers had cooled, there was an opportunity during that cooling off period for the employers to have changed their mind and said in effect "forget it, you stay on with us".  
	
	Then it is said that they failed to take account of the fact that this was a small organisation and it was unreasonable to expect there to be formal appeal procedure.  It seems to us the answer is the same as we have just indicated on the earlier point.  They then go on to say that in effect the decision of the Industrial Tribunals was perverse, but without giving any grounds for so suggesting.  It seems to us that this is a clear case where the Tribunal have correctly directed their minds as to what the reason was for the dismissal and then to apply the test which falls for them under Section 57(3) of the Act. 

	We see no grounds for believing that they misdirected themselves or have gone wrong in any way in law.  Since this appeal can only take place if there is a point of law because our jurisdiction is so confined, as there is no point of law, the appeal should be dismissed.  We should add that we have reached this conclusion in the absence of the prospective Appellant himself.  He had Solicitors who have been on the record, but they notified this Employment Appeal Tribunal yesterday afternoon late, that they wished to come off the record. 

	I am satisfied, having instructed the staff here to make further enquiries, that the Appellant himself is aware of this hearing and has known for a matter of days that he was not to be represented by this Solicitors.  I am quite satisfied that he has had the opportunity to come here if he so wished.  It is our practice where a prospective Appellant does not avail himself of an opportunity to appear in front of us to take particular care to make sure that all the papers have been read, as we have done in this case.  We are satisfied that there is nothing in this prospective appeal and we therefore dismiss it.